If you live in Florida and own property with a pool built after October 1, 2000, you are required by law to adhere to the Residential Swimming Pool Safety Act, codified inChapter 515 of Florida Statutes. Failure to do this is not only a potential tragedy in the making; it could open residential property owners to the possibility of a personal injury or wrongful death lawsuit – even if the person harmed was trespassing at the time of the incident.
Miami swimming pool accident lawyers understand that this is exactly what happened in Blackburn Ltd. P’ship v. Paul, a case out of Maryland, which has similar pool safety laws and requirements. Here, the Maryland Court of Appeals (the highest court in that state) ruled in favor of a mother whose son suffered permanent brain damage as a result of nearly drowning in the pool owned and maintained by the apartment complex where they lived. The ruling will allow her to continue pursuit of her claim, which had previously been halted by a summary judgment in favor of the pool owner.
According to court records, the 3-year-old had been playing outside with his older brother when he wandered off. It was several minutes from the time the mother was alerted to this until he was found – at the bottom of the apartment complex pool. The child was rushed to the hospital and survived, but as a result of oxygen deprivation, suffered permanent brain damage that left him in a vegetative state, largely unresponsive, unable to move on his own or eat or even see. His condition requires continuous care, and doctors have no expectation he will improve.
The mother filed a personal injury lawsuit against the owners of the property, the property management company and the pool maintenance firm, seeking $15 million in damages for medical expenses, plus interest. Specifically, she alleged that the defendants failed to keep the pool in reasonably safe condition for all residents (namely, children) and had failed to follow state law regarding pool regulations. The defendants argued they were not any more liable than the mother, who had left the child unsupervised. Further, they asserted they had no duty of care to the child beyond the duty to refrain from willful or wanton injury of the boy, as he was a trespasser at the time he was hurt. He was a resident of the complex, but the posted rules indicated that he was not to be in that area unsupervised.
The trial court sided with defendants, granting the motion for summary judgment. That decision was affirmed by the court of special appeals, but then reversed and remanded upon review by the state high court. The high court found that simple violation of state law was enough to potentially establish negligence, regardless of the level of duty owed to the victim.
Further, as the victim was a child trespasser, his mother could plausibly argue negligence pursuant to the attractive nuisance doctrine. This legal principle holds that if the trespasser is a child and the property owner knew that a danger on site would be potentially attractive to children, he or she would have a duty to minimize the risk.
Anyone with toddlers know how fast young children can move. They are impulsive and inquisitive and they don’t have a realistic understanding of the danger. This is exactly for this kind of situation that the attractive nuisance doctrine exists. Other examples of cases for which courts have found it applicable would be injuries sustained on trampolines, piles of sand, lumber stacks and even abandoned cars.
Generally, there are five conditions that have to be met in order for attractive nuisance to apply. Those are:
- The condition exists on property that the possessor knows or should know that children are likely to trespass
- The condition knows or should know that the condition has the high potential to cause serious harm or death
- The child(ren) involved are too young to fully understand the risk involved with coming into contact with the condition
- The cost in maintaining or eliminating the condition is slight to the owner in comparison to the risk posed to the child
The possessor does not exercise reasonable care in shielding children from this danger. Pool owners in Florida need to take this tragic example to heart. First and foremost, there is the fact that this young man’s life is effectively over and it has forever impacted his family. Secondly, the resulting litigation will most likely result in a substantial award of damages to compensate the family for the cost of his care and the loss of his companionship.
Florida ranks highest in drowning deaths for children between the ages of 1 and 14, and many of these cases occur in swimming pools. But these incidents are entirely preventable with proper supervision and appropriate barriers. According to Florida Statute 515.27, residential swimming pools must meet at least one of the following requirements
- Be isolated from access to home by enclosure that meets the pool barrier guidelines as set forth in statute 515.29
- Be equipped with a pool cover that is approved for safety
- Have adjacent windows and doors providing direct access from the residence to the pool equipped with exit alarms that meet sound pressure ratings
- Have direct-access doors from the home to the pool equipped with self-closing, self-latching devices that are placed at no lower than 54 inches above the ground.
A person or entity that fails to equip residential swimming pools with at least one of these features is considered guilty of a second-degree misdemeanor. This is punishable by a jail term of up to 60 days and a fine of up to $500. We assure, however, that any civil judgment obtained against a defendant in a wrongful death or personal injury case involving a swimming pool will almost certainly be far higher than that. The only exemptions to the statute are structures used for agricultural purposes (stock ponds, storage tanks, watering troughs, etc.), public swimming pools, portable spas with safety covers and small, temporary pools that have no motors (often referred to as “kiddie pools”).
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