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The Owner’s Liability for a Swimming Pool Drowning

Owner's Liability for a Swimming Pool DrowningSwimming pools are unquestionably a source of fun and respite for people during the dog days of summer. However, with swimming pool ownership come a number of legal responsibilities that the owner has when it comes to safety. If they fail to follow any one of them, they can be held liable when someone drowns in their pool. This goes for both public pools as well as private backyard swimming pools.

When one dies in a drowning accident at a private pool or a public pool, their loved ones may be able to file a negligence lawsuit against the owner. They can also file a lawsuit if their loved one suffers brain injuries or any other type of harm.

The truth is that liability presents an issue for swimming pool owners. If an accident happens at someone’s swimming pool, chances are that they can be held responsible for it. There are lawsuit verdicts in Illinois that have held hotels and property owners responsible for drownings that happened in their pools.

Premises Liability Law Generally Applies to Swimming Pool Accidents

The first thing to understand is the background law that applies to a swimming pool accident in Illinois. The standard concepts of premises liability law will apply, albeit with some differences that are unique to the context of pool safety.

Premises liability generally holds that a property owner is responsible for any injuries that occur on their property. The Illinois Premises Liability Act states that the property owner owes the duty “of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.”

The exceptions to premises law liability include when the injured person is a trespasser on the land and when they were the cause of their own injury. However, a landowner owes a higher standard of care when a child is on their land that would include warning them of obvious dangers to them.

When it comes to a swimming pool, homeowners would need to show an even higher standard of care for children that come on to the property under something called the “attractive nuisance doctrine.”

When Owners Can Be Liable for a Swimming Pool Accident

There are some circumstances in which swimming pool owners could be liable for a drowning in their swimming pool. They include:

  • The child was not adequately supervised in the swimming pool.
  • The pool was not kept in a state of good repair.
  • The pool was not fenced off or covered.
  • There was not the proper safety equipment.

Illinois Law for Private Swimming Pools

Illinois has a specific law that applies to residential swimming pools. It is called the Private  Swimming  Pool  Enclosure  Act and it is found at 55 ILCS 5/5-1066 and 65 ILCS 5/11-30-9. The law states that residential pools on private property must “be enclosed by a fence, wall, or other effective permanent barrier of 42 inches or  greater  height.” If property owners are following the law, this should prevent children from being able to access the swimming pool on their own when no adults are around.  Ideally, the pool owner should also have a pool cover to keep the area safe in case someone gets into the pool area.

Special Rules for Children and Swimming Pools

While premises liability law would usually hold swimmers to their own standard of care in a personal injury lawsuit, there is a special category in Illinois law that protects children. In other words, children do not enter the pool at their own risk.

For example, in the case of T.T., a Minor, et al. v. Kim, an Illinois Appellate Court held that a landowner has a duty to protect children from harm where he knows or should know that young children habitually frequent property. Courts in Illinois routinely hold that children are “too immature to appreciate risk involved.”

In general, courts will not look at the actions of a child who drowns in a swimming pool like they normally would in a comparative fault situation.  In a wrongful death case, Courts in Illinois use the dividing line of when a child is old enough to anticipate danger. The general rule in an Illinois case is:

“Where a person is old enough to comprehend a danger, and is familiar with the place and the location, his duty to exercise ordinary prudence and care would charge him with notice of it.”

Shipley v. Chicago & A.R. Co., 164 Ill. App. 69, 1911 WL 2731 (3d Dist. 1911)

When it comes to swimming pool accidents, courts in Illinois will generally use a dividing line of around eight years old. In other words, children below that age will not have their own actions held against them when there is something dangerous like a swimming pool.

However, it is important to note that there are some limits to the homeowner’s liability when someone is injured in their swimming pool. For example, in the case of Englund v. Englund, a court in Illinois held that the homeowner was not liable for a drowning in their swimming pool when the child’s parents were present. In other words, the parents are not relieved of their obligation to supervise their child when they are at someone else’s home that has a swimming pool.

Pool Owners’ Homeowners Policies

When it comes to paying for the damages caused by a homeowner’s swimming pool, the first place to go would be their homeowner’s insurance policy. This policy has a liability portion that would cover injury or death in a swimming pool.

However, many homeowners may not have a high amount of liability coverage attached to their homeowners’ policy. Certainly, they may not have enough to cover swimming pool injury.

The standard amount of liability coverage in a homeowners’ policy is $300,000, which may be insufficient to cover the damages if someone drowns in the pool. If the amount of homeowner’s insurance is not enough, you would need to go after other assets of the homeowner to satisfy the judgment because the insurance company cannot be made to pay more than the policy limits.

Homeowners should increase their liability insurance if they have a swimming pool on their property and have invited guests. However, many of them are either trying to keep their policy premiums low or do not realize the dangers of their own swimming pool or the extent of their possible pool liability.

If a loved one has died or been seriously injured in a swimming pool accident, contact a personal injury attorney at Rosenfeld Injury Attorneys for a free consultation.  A personal injury lawyer can handle your accidental drownings case and assist you in filing a lawsuit or settling the case with the insurance company.