Serving clients in Fayetteville and all of NW Arkansas
Swimming is a wonderful activity to do during the warm summer months. Many families eagerly wait for the local swimming club to open so that they can take their children there to burn off some of their extra energy and get some exercise. Benton County has over ten public swimming pools and there are many families in an around the county that have their own private swimming pools. However, while swimming may be a wonderful activity, it also poses dangers for people of all ages and children in particular.
Risk Factors for Accidental Drownings
Between the years of 2011 and 2012, the Centers for Disease Control and Prevention reported that there were an average of 390 drowning deaths per year in pools. According to the Centers for Disease Control and Prevention drowning is the leading cause of death for children from ages 1-4.
- Age – a persons’ age poses a major risk for drowning. According to the Arkansas Infant and Child Death Review Program at Arkansas Children’s Hospital, the state ranks seventh in the United States for drowning-related deaths among children younger than 17, a figure that is 60 percent higher than the national average
- Gender – Nearly 80% of people who die from drowning are male.
- Alcohol use – Alcohol influences balance coordination and judgment. It is involved in up to half of adolescent and adult deaths associated with water recreation
When your child is swimming you should keep a careful eye on them. It only takes a few seconds for a child to drown, and you should not rely on lifeguards to provide absolute protection for your child.
What are the Causes of Drowning Accidents?
By far the biggest reason for accidental drownings is when the owner of a swimming pool is negligent. The Arkansas Legislature has enacted certain rules to try and combat swimming pool owner negligence and in addition Benton County has enacted its own rules, which require taller fences than the ones required under state law. In Benton County, public pool fencing must be at least 6 feet high, located 5 or more feet away from water’s edge and have gates with locks that are at least 4 feet above the ground. For private pools, fencing must be at least 5 feet high, located 5 or more feet away from the edge of the pool, and have a latch that can only be opened from the interior side of the fence. These requirements are more stringent than those at the state level. Because cities and counties often adopt localized rules, pool owners should verify that any signage and fencing complies with all local requirements. In addition, The Arkansas State Board of Health has issued rules and regulations pertaining to Swimming Pools and Other Related Facilities. These rules were promulgated under Authority of the Ark. Code Ann. § 20-7-109 and Ark. Code Ann. § 20-30-103 et. seq. and became effective on August 1, 2012. This section only applies to public swimming pools. Under these rules, public pools are required to have fences that are at least four feet tall, and public pools are required to employ A minimum of one lifeguard shall be provided for each 2000 square feet of water surface. One additional lifeguard shall be provided for each additional 2000 square feet of water surface, or fraction thereof equal to or greater than 1000 square feet.
In addition to swimming pool owner negligence accident drownings can occur because of:
- Manufacturing or design defects of drains and covers.
- Improperly installed diving boards.
- Defective fence and gate installation.
- Inadequate or untrained lifeguards
- Lack of warnings signs for both deep and shallow water.
Drownings accidents are an unfortunate reality and many people lose their lives every year in public swimming pools across the nation. While these accidents can be devastating, they can also leave us asking who is liable and who is responsible for this tragedy.
Who is Liable?
If your child or someone you know has been the victim of an accidental drowning, then you may be able to file a claim against the person or the facility. Most of these cases are brought under a theory of negligence. And in order to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff’s damages. Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). Duty is a concept that arises out of the recognition that the relationship between individuals may impose on one a legal obligation for the other. Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. The question of the duty owed by one person to another is always a question of law and never one for the jury.
In Arkansas, for purposes of premises liability, there are three basic categories of persons present on another’s property who may allege injury against the landowner: trespasser, licensee, and invitee. Arkansas courts adhere to common law distinctions between the duties owed to these three categories of persons.
- Trespasser – Generally a landowner does not owe a trespasser any duty of care, however, The Arkansas State Board of Health requires that provisions must be made to exclude unauthorized entry to the public swimming facility. This means that a public pool owner may have a duty to install a barrier or fence to keep people out.
- Licensee – A licensee is one who goes on the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). Our supreme court has generally held that a primarily social guest is a licensee. A landowner owes a licensee the duty to refrain from injuring him through willful or wanton conduct, except that where the landowner discovers that a licensee is in peril, he has a duty of ordinary care to avoid injury to the licensee. Bader, supra. That duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved.
- Invitee – When determining whether a visitor qualifies as either an invitee or licensee, it is important to look to the purpose of the visit and the property owner’s invitation. An invitee, in contrast, is one induced to come onto the property for the business benefit of the possessor. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). There are two types of invitees: public and business. A public invitee is invited to enter or remain on the property as a member of the public for a purpose for which the property is held open to the public, such as a hospital or library. Lively v. Libbey Mem’l Physical Med. Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business invitee is invited to enter or remain on the property for a purpose directly or indirectly connected with the business dealings of the possessor of the property.
The duty owed to invitees is much broader and encompasses a property owner’s liability if he has superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Therefore, it is crucial that before you file a lawsuit for an accidental drowning, you determine who if anyone may be liable, as well as the status of the person.
In Need of an Experienced Benton County Accidental Drowning Attorney?
If you or a loved one has been seriously injured due to negligence or recklessness at a public or private pool, Ken Kieklak, Attorney at Law may be able to fight for you. For more than 20 years Ken Kieklak has fought on behalf of injured Arkansans. To schedule a free, confidential personal injury or wrongful death consultation, call (479) 251-7767 today or contact us online.
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