Florida has more drowning deaths than almost any other state—a tragic consequence of our year-round warm weather and the abundance of pools, lakes, and coastal waters. For families who lose a child...
Florida has more drowning deaths than almost any other state—a tragic consequence of our year-round warm weather and the abundance of pools, lakes, and coastal waters. For families who lose a child or loved one to drowning, or who face the long-term consequences of a near-drowning brain injury, the grief is compounded by questions of how this could have happened. In many cases, drowning incidents are preventable—the result of inadequate barriers, missing safety equipment, poor supervision, or violations of pool safety laws. When property owners fail to maintain safe swimming areas, they can and should be held accountable. Understanding Florida's pool safety requirements and premises liability law is the first step toward seeking justice.
Florida's Drowning Crisis
Drowning is a leading cause of death for young children in Florida. According to the Florida Department of Health, drowning is the number one cause of death for children ages one to four in our state. Many more children survive drowning incidents but suffer devastating brain injuries from oxygen deprivation.
Several factors contribute to Florida's drowning problem. The state has more residential pools than anywhere in the country. Our warm climate means pools are accessible year-round. Tourists unfamiliar with water safety visit constantly. And apartment complexes, hotels, and resorts have pools that may receive less supervision than residential pools.
But drowning is not inevitable. Most drowning incidents involve preventable factors—barriers that weren't in place, alarms that weren't working, supervision that lapsed, or safety equipment that was missing. When property owners fail to implement reasonable safety measures, they bear responsibility for the resulting tragedies.
Florida's Residential Pool Safety Act
Florida law requires specific safety measures for residential swimming pools. The Florida Residential Swimming Pool Safety Act (Florida Statute 515.27) mandates that all new residential pools include at least one of the following safety features: an approved barrier (fence, wall, or enclosure) isolating the pool from the home, an approved safety pool cover, exit alarms on all doors providing direct access to the pool, or self-closing, self-latching doors with release mechanisms above children's reach.
Barriers must meet specific requirements: at least four feet high with no openings that allow a four-inch sphere to pass through, gates that are self-closing and self-latching, and no objects nearby that children could use to climb over.
Violating these requirements doesn't automatically prove negligence, but it's strong evidence. If a pool lacked required safety features and a drowning or near-drowning resulted, the property owner faces significant liability exposure.
Commercial Pool Requirements
Commercial pools (at hotels, apartments, clubs, etc.) face additional requirements under Florida law and local codes. These typically include mandatory fencing and barriers, depth markers and 'no diving' signs where appropriate, safety equipment (life rings, shepherd's hooks), clear sight lines for supervision, proper drain covers to prevent entrapment, and depending on the facility, lifeguard requirements.
Property Owner Liability for Drowning
When someone drowns or suffers a near-drowning injury at a pool, several theories of liability may apply:
Premises liability holds property owners responsible for maintaining safe conditions. If dangerous pool conditions (broken barriers, missing safety equipment, slippery decks) contributed to the incident, the owner may be liable.
Negligent supervision applies when the property owner had a duty to supervise swimmers but failed to do so adequately. This is particularly relevant for facilities that employ lifeguards or that host children's activities.
Violation of pool safety statutes can establish negligence per se—automatic proof of negligence if the violation caused or contributed to the drowning.
Product liability may apply if defective pool equipment (drain covers, ladders, slides) contributed to the incident.
The specific theory depends on the circumstances. A hotel may be liable for failing to provide adequate supervision or warning about pool depth. A residential owner may be liable for failing to maintain required barriers. An apartment complex may be liable for broken gate latches that allowed unsupervised access.
The Attractive Nuisance Doctrine
Florida recognizes the 'attractive nuisance' doctrine, which provides special protection for children. Under this doctrine, property owners can be liable for injuries to trespassing children if the property contains a condition that is likely to attract children (like a swimming pool), the owner knows or should know children are likely to trespass, the condition poses an unreasonable risk of death or serious injury to children, children don't appreciate the danger due to their age, and the cost of eliminating the danger is slight compared to the risk.
Swimming pools are classic attractive nuisances. Children are drawn to pools and may not understand the drowning risk. This doctrine is why Florida law requires barriers around residential pools—to protect children who might wander onto the property.
If a child drowns after gaining unauthorized access to a pool, the attractive nuisance doctrine may impose liability on the pool owner even though the child was technically trespassing.
Near-Drowning Brain Injuries
Not all drowning incidents are fatal. Near-drowning survivors often suffer hypoxic brain injuries—damage caused by lack of oxygen to the brain during the incident. These injuries can be devastating.
The severity of brain injury depends on how long the brain was deprived of oxygen. Even a few minutes of oxygen deprivation can cause permanent damage. Consequences may include cognitive impairments, memory problems, motor function deficits, seizure disorders, personality changes, and in severe cases, persistent vegetative state.
Victims of near-drowning brain injuries require extensive medical care, often for the rest of their lives. The cost of this care can reach millions of dollars. Personal injury claims for near-drowning survivors can therefore involve substantial damages including past and future medical expenses, lifetime care costs, lost earning capacity, and pain and suffering for both the victim and family members.
Wrongful Death Claims for Drowning Victims
When drowning causes death, surviving family members may bring a wrongful death claim under Florida's Wrongful Death Act. This claim compensates family members for their losses resulting from the death.
Surviving spouses can recover for lost companionship, protection, and support, as well as mental pain and suffering. Parents of minor children can recover for mental pain and suffering and lost support and services. Children can recover for lost parental companionship, instruction, and guidance, as well as mental pain and suffering.
The estate can also recover medical and funeral expenses and lost earnings from the date of injury to death. In cases involving minor children, there are no lost earnings to recover, but the non-economic damages—the loss of a child's life and companionship—can be substantial.
Wrongful death claims must be filed within two years of the death under Florida's current statute of limitations. Working with an attorney promptly ensures that evidence is preserved and legal deadlines are met.
Investigating Pool Drowning Cases
Building a strong drowning or near-drowning case requires thorough investigation:
Pool safety compliance is examined. Did the pool have required barriers, alarms, and safety equipment? Were they functioning properly? Were there code violations?
Supervision practices are reviewed. Was a lifeguard required? Were supervisors properly trained? What were they doing when the incident occurred?
Maintenance records are obtained. Was the pool properly maintained? Were there prior incidents or complaints? Were problems identified but not corrected?
Witness statements are gathered. Who was present? What did they observe? How quickly was the victim discovered and rescued?
Medical records document the injuries. For near-drowning victims, the extent of brain injury must be thoroughly documented. For fatal drownings, autopsy and medical examiner reports are important.
Expert witnesses may be needed. Pool safety experts can testify about industry standards and code violations. Medical experts can explain brain injury causation and prognosis. Life care planners can project future care needs and costs.
Contact Emas Law Group Today
Drowning and near-drowning incidents are often preventable tragedies that occur when property owners fail to implement basic safety measures. If you've lost a loved one to drowning or are caring for a near-drowning survivor with brain injuries, you may have a legal claim against the property owner responsible for the unsafe conditions. While no lawsuit can undo the tragedy, holding negligent parties accountable can provide resources for ongoing care, prevent future incidents at the same property, and bring a measure of justice to grieving families. At Emas Law Group, we understand the profound impact these cases have on families. We approach drowning cases with compassion and determination, fighting to hold negligent property owners accountable. Contact us for a free, confidential consultation to discuss your case.
Frequently Asked Questions
Can I sue a homeowner if my child drowned in their pool?
Potentially, yes. If the homeowner failed to maintain required safety barriers or was otherwise negligent, they may be liable. Florida's attractive nuisance doctrine may impose liability even if the child accessed the pool without permission.
What if the drowning happened at a hotel or apartment pool?
Commercial properties have duties to maintain safe pools, including proper barriers, safety equipment, and potentially lifeguard supervision. Violations of these duties can establish liability. Hotels and apartment complexes typically have insurance to cover such claims.
How long do we have to file a drowning lawsuit in Florida?
For wrongful death claims, the statute of limitations is two years from the date of death. For near-drowning injury claims, it's also two years from the incident. Acting quickly to preserve evidence is important regardless of the deadline.
What compensation is available for near-drowning brain injuries?
Compensation can include all medical expenses, lifetime care costs, lost earning capacity, and pain and suffering. Given the extensive care many brain injury survivors require, these claims can be substantial—potentially millions of dollars.