Who’s liable when someone is injured or drowns in a swimming pool accident?
The hottest temperature ever recorded in Tennessee was 113 degrees Fahrenheit. What’s more, Tennessee is the 13th hottest state when it comes to average summer temperatures.
The bottom line:
Private and residential swimming pools, as well as lakes and rivers, are immensely popular in the Volunteer State.
Unfortunately, swimming comes with risks. In this article, we’ll take a look at swimming pool injuries, the laws intended to keep swimmers safe, and when a swimming pool owner can be held liable.
Let’s dive in.
Are swimming pool injuries common?
Though swimming pool injuries impact all age groups, children under the age of 15 are by far the most impacted in the United States.
| Swimming pool injuries treated in emergency departments in the U.S. | ||
|---|---|---|
| Year | Younger than 5 years of age | 5-14 years of age |
| 2017 | 5,300 | 7,300 |
| 2018 | 4,900 | 6,400 |
| 2019 | 5,100 | 6,300 |
| Source: The United States Consumer Product Safety Commission | ||
| Swimming pool drowning deaths in the U.S. | ||
|---|---|---|
| Year | Younger than 5 years of age | 5-14 years of age |
| 2015 | 263 | 88 |
| 2016 | 290 | 100 |
| 2017 | 303 | 91 |
| Source: The United States Consumer Product Safety Commission | ||
Swimming pool injuries can be minor or severe. Some examples include:
- Drowning
- Traumatic brain injuries (TBI)
- Spinal cord injuries
- Torn organs (usually caused by improperly covered drains)
- Fractured bones
What are the most common causes of swimming pool injuries?
The Centers for Disease Control and Prevention (CDC) warn that most swimming pool injuries are a result of inadequate supervision or lack of swimming ability. Nevertheless, there are a number of factors that may contribute to swimming pool injury:
- Lack of barriers
- Failure to wear life jackets
- Alcohol or drug use
- Defective or poorly maintained equipment (diving boards, pool heaters, etc.)
- Medical conditions (such as seizure disorders)
- Unmarked depths
- Slippery pool decks
- Poorly maintained drains and filters
The hotel advertised itself as a water park, but had no lifeguards on duty (in violation of state law) and lacked a working emergency telephone when Raymond’s son drowned.
When are residential swimming pool owners liable in Tennessee?
The vast majority of swimming pool accidents happen at home.
In Tennessee, property owners have a duty to exercise “reasonable care” to protect people on their property from “unreasonable risks of harm.” If a property owner fails to exercise reasonable care, the property owner will be liable for any harm that results.
What does a swimming pool owner have to do to exercise reasonable care?
Premises liability laws require swimming pool owners in Tennessee to either remove or warn against any dangerous conditions they actually know about or should know about.
Common dangerous conditions with respect to swimming pools include:
- An open pool (i.e. a pool that lacks barriers)
- Unsupervised swimmers
- Slippery surfaces around the pool
- Unmarked depths
- Defective equipment
Notably, the owner of the daycare had previously been ordered to cease operating the daycare due to various complaints about poor supervision made to the Tennessee Department of Human Services.
The lawsuit is pending.
Additionally, there are a number of specific state and local regulations pertaining to private pool owners. Here are some of the highlights:
- Swimming pool barriers. All residential swimming pools in Tennessee must comply with the BOCA Pool Barrier Code. Among other things, the code requires a barrier (fence or wall) meeting certain specifications around the pool to prevent drownings and other injuries.
- Swimming pool gates. Barriers around residential swimming pools must have access gates at least 48 inches tall and equipped with locking devices.
- Swimming pool alarms. All residential swimming pools built in Tennessee on or after January 1, 2011, must have an alarm. The alarm has to be secured to the pool and must be able to detect when an object or person heavier than 15 pounds enters the water.
If a swimming pool owner violates one of the state or local regulations, they’ll likely be liable for any injuries that result.
What about injuries that occur in public pools?
Just like owners of residential pools, public pool owners (usually the town, city, or state) can be held liable if a swimmer is injured because the owner failed to exercise reasonable care.
What’s more, public pool owners must adhere to the state regulations found in Chapter 1200-23-5 of the Rules of The Tennessee Department of Health Bureau of Health Services Administration.
For example, 1200-23-5.02 requires that all public pools have at least 1 certified lifeguard (more lifeguards may be necessary depending on the size of the swimming pool).
What defenses do pool owners have?
There are 2 defenses that pool owners are likely to raise in a lawsuit stemming from a swimming pool accident:
- Open and obvious. Pool owners may argue that they’re not liable because the dangerous condition was “open and obvious.” In other words, the plaintiff should have seen the dangerous condition and avoided it.
A pool owner won’t be relieved of their duty to exercise reasonable care simply because a dangerous condition is open and obvious, but the openness and obviousness of a dangerous condition is a factor considered by the court in determining whether the pool owner is liable.
- Modified comparative fault. Tennessee follows the modified comparative fault rule, which means that the plaintiff’s damages will be reduced by their percentage of fault. What’s more, if the plaintiff is 50% or more at fault, the plaintiff won’t be able to recover any damages.
Debbie filed suit alleging negligence and Mathew filed a motion to dismiss the lawsuit based on the fact that the opening in the deck was an “open and obvious condition.” The trial court agreed with Mathew, finding that “the plaintiff was injured on an opening in the deck which was clearly visible and not concealed and that anyone walking on the premises should have been able to observe.”
What damages can a person injured in a pool accident recover?
Tennessee allows plaintiffs to recover both economic and non-economic damages:
- Economic damages represent the monetary losses caused by your injury, including medical expenses, lost wages, and property damage.
- Non-economic damages represent the non-monetary losses caused by your injury, including pain and suffering, emotional distress, and loss of consortium.
In rare cases, when the defendant acted maliciously, fraudulently, or recklessly, plaintiffs may be able to recover punitive damages. Punitive damages are intended to punish defendants and deter similar actions in the future.
In most cases, Tennessee law caps the amount of non-economic damages you can receive at $750,000 and the amount of punitive damages you can receive at $500,000. However, in cases where the injury is catastrophic, the non-economic damage cap is increased to $1 million.
How long do I have to file a lawsuit based on a pool injury?
In most cases, a plaintiff has 1 year from the date of the injury to file a lawsuit.
But there is an important exception:
If a child under the age of 18 is injured, the statute of limitations doesn’t start running until the child turns 18.
Think you're ready to discuss your pool injury with a lawyer? You can find one near you using our free online directory.
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.