Find out who can be held liable when the unthinkable happens
If you were to fly over the beautiful state of California, you would see a diverse landscape that includes coastal cliffs, deserts, valleys, and mountains. But you would also see something consistent in every region: swimming pools.
There are approximately 1.18 million residential swimming pools in California. While pools are a great way to stay cool in the Golden State’s warm climate, they come with inherent risks.
Swimming pool injuries and statistics
In California, drowning is the 2nd leading cause of death for children ages 1-5. On average, 31 children die from drowning in swimming pools every year.
| Child drowning death statistics in California (ages 1-5) |
||
|---|---|---|
| Year | Number of pool drownings | Number of pool and other drowning (total) |
| 2017 | 23 | 51 |
| 2016 | 31 | 45 |
| 2015 | 31 | 47 |
| 2014 | 33 | 52 |
| 2013 | 39 | 60 |
| 2012 | 27 | 44 |
| 2011 | 30 | 58 |
| 2010 | 40 | 54 |
| Average | 31 | 51 |
California premises liability laws and swimming pool accident cases
The term “premises liability” refers to a set of rules that require property owners to take certain measures in order to keep their property safe for visitors. If a person is injured on someone else’s land, the first thing the court will look at is whether the person was injured because the owner failed to take the required measures.
So, what measures must be taken?
In California, a person who owns, leases, occupies, or controls a premise must keep the premises in a “reasonably safe condition” and must warn of dangers that are known or knowable.
What does this mean for swimming pool owners?
A swimming pool is considered a “dangerous condition.” Accordingly, if a landowner leaves their pool inadequately protected or unsupervised, they will be liable for any injuries that occur, even if the person injured was a trespasser.
Fortunately, California, through the Swimming Pool Safety Act, has provided some guidance for California residents who want to ensure their swimming pools are adequately protected.
What are the specific requirements for residential pools?
California’s Swimming Pool Safety Act requires that all residential swimming pools are equipped with at least 2 of the following 7 safety measures:
- A removable mesh fencing that meets the American Society for Testing and Materials Specifications (ASTM) F2286, along with a gate that is self-closing and self-latching.
- A safety pool cover that is compliant with ASTM F1346.
- Exit alarms on the home’s doors that provide direct access to the swimming pool.
- A self-closing, self-latching device placed no lower than 54 inches above the floor on the home’s doors providing direct access to the swimming pool.
- An alarm that, when placed in a swimming pool, will sound upon detection of unauthorized entrance into the water.
- An enclosure that meets the requirements of Section 115923 of the Swimming Pool Safety Act and isolates the swimming pool from the home.
- Other means of protection, so long as the degree of protection is equal to or greater than those set forth above and has been independently verified by an approved testing laboratory as meeting the standards of ASTM or the American Society of Mechanical Engineers.
California used to require owners to implement just 1 safety measure, but there were concerns among many that the safety measure could fail and there would be no backup.
As explained by Jennifer Rubin of the Safe Kids Greater Sacramento Coalition:
“We are all well-meaning families and we know that we love our kids and don’t want them to get into the pool. But those first layers could fail and so the second layer is just going to give you a little more time.”
What about public pools?
California requires public swimming pools to meet certain safety standards as well. The bulk of these standards can be found in Chapter 31B of the California Building Code and Title 22, Division 4, Chapter 20 of the California Code of Regulations.
These standards are extensive, and cover topics like:
- Pool water quality standards
- Placement of electrical outlets
- Use of slip-resistant materials
- Diving boards and platforms
- Animals
- Inspection requirements
- Wading pool water clarity
- Drowning incident response
- Handrails
- Required signs
- Required enclosures
Defenses to pool accidents
When a swimmer is injured, a pool owner will look to establish that the swimmer caused the accident or was at least partially at fault for the accident.
California follows the legal theory of pure comparative fault. This means that a plaintiff’s recovery is reduced by a percentage that reflects their degree of fault.
Here’s an example of how pure comparative fault works in California:
Bobby and his friends go to the town pool for a swim. After swimming for a few minutes, Bobby and his friends play a game of tag in the area surrounding the swimming pool. While running, Bobby slips and falls on the edge of the pool, injuring his neck. His parents sue the town for $100,000.
The court finds that the town failed to install slip-resistant material around the pool as required under the county laws and therefore the town is at fault for Bobby’s accident. However, the court also finds that Bobby is 20% at fault for the accident because he ran around the pool despite clearly posted no running signs. As a result, Bobby and his parents only recover $80,000 of his $100,000 in damages.
Swimming pool accident damages
In a California personal injury case, there are 3 types of damages available:
- Economic damages are the monetary damages you suffer. These include past and future medical expenses, past and future lost wages, and anything else that has a specific “price tag” attached.
- Non-economic damages refer to losses that don’t have a specific dollar value, such as pain and suffering.
- Punitive damages are those damages that are awarded to punish the defendant when the defendant’s actions are particularly reprehensible.
California statute of limitations
The statute of limitations is the legal term for the amount of time you have to file a lawsuit. If you fail to file your lawsuit within this time period, your case can be dismissed.
The applicable statute of limitations for swimming pool accidents and other personal injury cases in California is 2 years from the time of the injury.
There are just 2 exceptions that might apply in certain swimming pool accident cases:
- Age or mental capacity. If the injured person was under 18 years old at the time of the loss, they have until 2 years after their 18th birthday to file a claim. If at the time of loss, the person had a mental condition that required them to be institutionalized, they would have 2 years from the time they were declared mentally competent.
- Government lawsuit. If the injured person is suing a government entity (for example, the accident happens at a public pool), the injured person must file an “administrative claim” within 6 months of the injury. Once the administrative claim is filed, the government agency must respond within 45 days. If your claim is denied, you can file a lawsuit within 6 months from the date of the denial.
How to prevent swimming pool accidents
The Drowning Prevention Foundation offers the following water safety tips:
- Make sure there is an isolation fence around the pool, separating the pool from the house and the surrounding yard. It should be at least 4 feet high, with self-latching and self-locking gates.
- Install secondary barriers such as safety pool covers that meet ASTM Standards, in-ground pool alarms, and home door alarms.
- Make sure kids have constant supervision when they’re in or around water. Designate at least one adult “water watcher” at all times. If you’re with a group, have adults take turns.
- Teach kids survival swimming skills.
- Kids that are not strong swimmers should wear US Coast Guard-approved, well-fitting life jackets. (But be aware they don’t make your child drown-proof — still keep constant watch.)
- Set water safety rules for the whole family. For example, kids should never swim alone, inexperienced swimmers should stay in water less than chest deep, don’t dive into water less than 9 feet deep, stay away from pool drains, pipes and other openings, etc.
- Parents and caregivers should learn bystander CPR.
- Swimming lessons and life jackets do not replace supervision. Always watch kids in and around water. Drowning is a swift and silent danger (it can happen in less than a minute).
- All pools should have a safety reaching device like a shepherd’s crook.
- Keep a phone nearby so you can quickly call 911 in an emergency.
- Ensure pools and spas have compliant drain covers, and are kept in working order.
If you or a loved one is injured in a swimming accident, consider using our free online directory to locate an attorney who can help you stay afloat financially.
Pool Safely is a national public education campaign from the U.S. Consumer Product Safety Commission (CPSC). Learn more about how Enjuris and Pool Safely help make water play and summer fun safer for families!
See our guide Choosing a personal injury attorney.