According to the Centers for Disease Control and Prevention, 10 people die every day in the United States due to “unintentional drowning.” Children between the ages of 1 and 4 are especially at risk. Among this age group, drowning is the leading cause of death aside from congenital birth defects.
Frazier v. Godley Park Homeowners Association, Inc.
Most child drowning deaths occur in residential swimming pools. In some cases, the pool owner’s negligence may be the proximate cause of the child’s death. You should not assume that just because a child suffers a fatal or non-fatal drowning, the owner is automatically liable. To the contrary, under Georgia law, a swimming pool owner “is not an insurer of its safety.”
Consider this recent decision by the Georgia Court of Appeals. This case involved the tragic drowning death of a 4-year-old child in Savannah. The pool was owned by a local homeowners association. The victim’s aunt was a resident. She frequently invited her relatives to use the association’s pool even when was she was not there personally, as was the case on the day of her nephew’s death.
According to the Court of Appeals, the “pool was very crowded that day, and [the victim] was underwater for almost five minutes before he was discovered.” It took emergency personnel approximately 20 minutes to respond to the scene “partly due to some confusion over the address of the pool.” First responders were sadly unable to resuscitate the victim.
The child’s father subsequently filed a wrongful death lawsuit against the homeowners’ association. Specifically, the father alleged the association was negligent by failing to have a lifeguard on duty at the pool, by not having a “safety rope” separating the three-foot and five-foot depths of the pool, and by not posing a sign “displaying the pool’s address.” The association disputed it was negligent, and further argued the father and the victim were “trespassers” and therefore not entitled to recover any damages. The trial judge agreed and awarded summary judgment to the association.
The Court of Appeals disagreed in part with the trial court. The victim was not a “trespasser,” the appeals court concluded, because he was a guest of his aunt, who was a legal “invitee” with respect to the pool. Given that she frequently invited her family to the pool, this “customary use” was sufficient to at least create a question for the jury as to whether the victim was a trespasser or an invitee.
That said, the Court of Appeals did agree with the trial judge that the homeowners’ association “had not been negligent in any fashion” with respect to pool safety. To the contrary, the pool complied with all relevant county regulations. Among other things, the county did not require the posing of a lifeguard or safety ropes for this particular type of pool. Similarly, the pool’s signage was “code compliant,” and there was no reason to believe that had the address been posted more visibly that emergency help would have arrived any sooner or that it would have made any difference in reviving the victim.