Every day, nine people drown in the United States. For children, it accounts for the second-leading cause of accidental deaths among ages 1-14. In most of these cases, a child drowns when they are not supervised at a swimming pool. But who should be liable for these accidents? Pool owners in New York State should be aware that they may be liable for accidents that occur in their pool.
As an owner of a private pool, an individual is under a duty to warn social guests, or licensees, of any dangers that are not open and obvious. For example, if an owner of a pool knows that their ladder is broken, but fails to disclose it to guests, they may be liable for any injuries that result from the broken ladder. For children, the standard is a bit different. Under New York State’s “attractive nuisance” doctrine, an owner may be liable for injuries to children even if the child is trespassing on the owner’s land.
The attractive nuisance doctrine holds a landowner accountable for injuries to children trespassing on the land if the injury is caused by an artificial dangerous object or condition on the land that is likely to attract children who are unable to appreciate the risks and hazards associated with that object. Simply, a swimming pool fits into the category of an attractive nuisance. The doctrine was developed on the belief that property owners should be able to foresee that children may enter the property if certain “attractions” are present, such as a pool.
The doctrine uses a 6 element test to determine whether the homeowner would be liable for the resulting injuries to a child. The elements the Court will use are as follows:
- The property onto which the child entered must have on it an artificial condition, like a building, an open pit, or abandoned equipment. (i.e. a swimming pool)
- The property owner or occupier must have known, or had reason to be aware, of the likelihood that children will trespass onto the property.
- The owner or occupier either knew or should have known that the artificial condition posed a risk of death or serious injury to children that was unreasonable under the circumstances.
- Children because of their inexperience and young age could not have been expected to have been aware of the condition or to realize the risks that it posed.
- The benefit to the owner or occupier of keeping the artificial condition on the property, as well as the burden of eliminating the danger that condition posed to children, were minor compared to the risk that the condition posed to children.
- The property owner or occupier failed to exercise reasonable care to remove the danger that the artificial condition posed to children, or to protect them from it.
In the case of a swimming pool, the above factors tend to sway in favor of holding the owner of the property liable if they took no steps to secure the pool. This could include installing a lock on the ladder, placing a fence around the pool, or making the backyard more difficult for children to access. In all, a homeowner should be aware of the risks associated with a swimming pool and take action to prevent any injuries from occurring.
In the case of a public swimming pool, an owner of a public pool primarily has a duty to reasonably maintain and repair the pool. Furthermore, the public pool owner has a duty to provide emergency safety equipment in case of an injury to one of the invitees. Some states, including New York, have laws that require an adequate supervision of lifeguards. In cases where the owner breaches a state law regarding the pool, an inference of negligence may be presumed without any further investigation. Lastly, a public pool owner would be liable for failing to warn of any hidden dangers. In the case of a swimming pool, a common hidden danger is the depth of the pool. By failing to warn invitees of the pool being too shallow for diving, the owner may be liable for any injuries that result.
In general, owning a pool places a large burden on the owner to maintain the safety of its guests, licensees, or even in the case of children, trespassers. If you have been injured at a swimming pool, it is important that you speak with an experienced New York personal injury lawyer who can help you understand your rights. The attorneys at McGuire, Peláez & Bennet, PC, will work to ensure you receive the compensation you deserve. For more information about our firm or to schedule a consultation, call our office at 631-348-1702 or fill out our contact form.