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.
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.
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.
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:
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.
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:
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:
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:
In the above hypothetical, Maria would only be able to recover a maximum of $6,000.
In a Montana personal injury case, there are 3 types of damages available:
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.
There are just 2 exceptions that might apply in certain swimming pool accident cases:
When enjoying the water this summer, the DPHHS requests that you keep the following safety tips in mind:
“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.