Find out who can be held responsible for drownings and how to recover personal injury damages
One of the most pleasant summer activities can turn deadly in the time it takes to answer a telephone.
According to the National Safety Council, roughly 7,000 people die from drowning every year. Another 5,000 children under the age of 14 are hospitalized every year for near-drowning injuries. Of these 5,000 children, as many as 20% suffer severe and permanent disabilities.
This article examines the prevalence of drowning accidents in Montana, the laws governing public and residential swimming pools, the damages that may be recovered in the event of a drowning, as well as tips to prevent swimming pool accidents.
Swimming pool injuries and statistics
In Montana, drowning surpasses all other causes of death for children ages 14 and under. On average, there are 15 drowning deaths per year in Montana. The majority of these deaths occur between June and August, when the weather is ideal for cooling off in a pool.
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While drowning is the certainly the most obvious risk associated with swimming, it’s not the only one.
According to the Montana Department of Public Health and Human Services (DPHHS), almost 200 people become ill from cryptosporidiumor giardia every year in Montana. One third of these people report swimming in the days before becoming ill.
If you’re unfamiliar with cryptosporidiumor giardia, consider yourself lucky. Both are microscopic parasites that can cause diarrhea, gas, stomach cramps, vomiting, dehydration, hives, swelling, weight loss, and even delayed physical and mental growth. These parasites are commonly found in swimming pools with insufficient sanitation.
Who’s at risk of drowning?
According to the Centers for Disease Control and Prevention, nearly 80% of people who die from drownings are male. Children ages 1–4 are the most likely to drown. In addition, the following factors increase drowning risks:
- Lack of swimming ability
- New parents
- New pool owners
- Multiple children around the pool
- Underestimating the mobility of a toddler
- Lack of pool barriers
- Lack of close supervision
- Failure to wear a life jacket
- Alcohol use
The role of premises liability laws in 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 that will be looked at is whether the person was injured because the owner failed to take the required measures.
So, what measures must be taken?
In most states, the measures that must be taken depend on the type of visitor that is injured. For example, a landowner might have to warn social guests of any dangerous conditions on the land but might not need to warn trespassers.
In Montana, however, there’s no longer any distinction between the type of visitor. Instead, the same measures must be taken for all visitors.
To put it simply, landowners in Montana owe EVERY visitor (from social guest to trespassers) a duty to maintain their land in a reasonably safe condition and to warn of dangers that are known or knowable (even if the danger is obvious to the visitor).
So what does this all 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 likely be liable for any injuries that occur, even if the person injured was a trespasser.
Let’s take a look at an example:
In the above hypothetical, Robin would be liable for the death of her neighbor even though her neighbor was a “trespasser.”
Of course, other laws may apply and other parties may be held liable depending on the nature of the accident.
For example, if an older swimmer holds a younger swimmer underwater, the older swimmer may be guilty of battery. If a pool pump malfunctions and injures a swimmer, the injured swimmer may be able to file a product liability claim against the manufacturer of the defective pool pump.
Does Montana have specific requirements for residential pools?
Montana has adopted most chapters of the International Swimming Pool and Spa Code (ISPSC). The purpose of the ISPSC is to establish minimum standards with respect to the design, construction, installation, and location of swimming pools to protect public safety.
If you fail to meet the minimum standards described in the ISPSC and a person is injured in your swimming pool as a result of this failure, it’s a safe bet that you’ll be held liable for the injuries.
The ISPSC addresses everything from drainage requirements to permitted materials to sanitizing-equipment standards.
While all sections should be reviewed by residential pool owners, the section that most often comes up in personal injury lawsuits is the barrier section (Section 305). This section addresses what barriers must be constructed around a swimming pool.
Here are some of the highlights:
- Outdoor and indoor pools must be surrounded by a barrier (unless equipped with a powered safety cover)
- Barriers must surround the entire pool and be at least 48 inches above grade
- Any openings along a barrier must not allow passage of a 4-inch diameter sphere
- Barriers must not contain indentations or protrusions that form handholds or footholds
- Gates must not have openings larger than ½ inch anywhere within 18 inches of the latch release mechanism
- Decks must be slip resistant
- Deck edges must be radiused, tapered or otherwise designed to eliminate sharp corners
What are the specific requirements for public pools?
Chapter 4 of the ISPSC covers public swimming pool standards. Additional requirements can be found in Chapter 53 of the Montana Code Annotated.
The ISPSC section concerning public pools is extensive. The standards address everything from required pool dimensions to required tread surfaces. Though the requirements should be read in full by public pool operators and managers, here are some highlights:
- Each person operating a public pool must operate the pool in a sanitary and safe manner
- Each person operating a public pool must keep records of public health and safety information and furnish the information to the DPHHS on prescribed forms
- A means of entry and exit must be provided in shallow and deep areas of public pools
- Signs must be posted that clearly indicate the location of the pump emergency shutoff switch
- The depth of water in feet must be plainly and conspicuously marked on the vertical pool water at or above the waterline
Are there any defenses to pool accidents?
When a swimmer is injured and the pool owner is sued, they will look to establish that the swimmer caused the accident or was at least partially at fault for the accident.
Montana follows the legal theory of “modified comparative fault.” This means that a plaintiff’s recovery is reduced by a percentage that reflects their degree of fault. Additionally, if the plaintiff is found more than 50% at fault, then they are barred from recovering any damages.
Here’s an example of how modified comparative fault works in Montana:
One summer, Francisco decides to have a pool party for his son and his son’s friends. During the party, one of his son’s friends, Maria, run across the deck at a high rate of speed. She slips and hits her head. As a result of the accident, she sustains $10,000 in medical expenses. Maria’s parents sue Francisco.
At trial, the jury agrees that Maria sustained $10,000 in damages and finds that Francisco is 60% at fault for failing to install a slip-resistant surface (as required under the ISPSC). The jury also finds that Maria is 40% at fault for running on the deck.
In the above hypothetical, Maria would only be able to recover a maximum of $6,000.
Swimming pool accident damages
In a Montana 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 acted with actual malice.
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 personal injury cases is 3 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 (but it cannot be more than 5 years from the date of loss).
- Death. If someone who’s entitled to bring an action dies within the statute of limitations, the deceased person’s relatives or representative may file the claim up to 1 year after the person’s death.
How to prevent swimming pool accidents
When enjoying the water this summer, the DPHHS requests that you keep the following safety tips in mind:
- Shower with soap before entering pool
- Don’t swim when you have diarrhea
- Don’t swallow pool, river or lake water
- Take children on bathroom breaks every 60 minutes or check diapers every 30-60 minutes
- Supervise swimmers, especially young and inexperienced ones — be a role model for others
- Learn life-saving skills such as CPR
- Use life vests when recreating in natural waters
- Avoid distractions such as alcohol, drugs, or cell phone use around water
“Parents can play a key role in protecting children,” says Jeremy Brokaw, DPHHS Injury Prevention Program Manager. “Learn life-saving skills such as CPR and basic swim instructions, fence off swimming pools, always use life jackets around natural waters, and always be on the lookout when kids are near water, including bathtubs.”
Brokaw adds that because drownings happen quickly and quietly, adults should avoid distractions when supervising children near water and should always keep their kids in their line of sight.
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.