It is every parent’s nightmare to lose a child to a drowning incident. When your child drowns through the negligence of another party, you should seek justice. There is no legal remedy that can undo the tragedy that you have suffered. However, you can recover damages and receive justice for having the wrongdoers charged in court. Filing for a negligence-based claim, a premises liability, or a wrongful death claim is difficult. When such times arise, consulting a professional personal injury lawyer is essential.

Negligence-Based Lawsuits for Child Drownings

In negligence-based lawsuits for child drownings, the focus is whether the defendant breached their duty to act as a reasonable person in a similar situation. The tort of negligence is therefore arrived at when a party has breached their duty of care, and as a result of the breach, the claimant has suffered a loss, in this case, the loss of a child through drowning. In such a case, you must prove several things for your claim to be successful. These are:

  1. There must be a legal relationship between the parties involved, where one party owes the other a duty of care. Therefore, the defendant had the legal duty to protect the child from harm that could be reasonably anticipated. If this duty is breached, for example, by a homeowner who has not fenced off a pool area, it will be grounds for liability.
  1. You must prove that the defendant breached the duty of care they owe to the child. This occurs when the accused person has not acted as they should. For example, if a lifeguard at a public pool was inattentive or a homeowner left their pool gate unlocked, these could breach their duties of care.
  1. The defendant was negligent, and the negligence was the cause of the child’s drowning. This is split into two aspects:
    1. Actual Cause – This means that the harm would not have occurred in the absence of negligence by the defendant.
    2. Proximate Cause – Proximate cause examines whether the injury was reasonably anticipated from the defendant’s conduct. For example, if a pool owner neglected to fix a broken gate and a child gained unauthorized access and drowned, the owner would be legally responsible because the drowning was considered a reasonably foreseeable risk of the owner’s negligence.
  1. In wrongful death claims due to drowning, this typically involves the loss of life and may include other compensatory damages such as emotional distress for the family. These cases often demand detailed evidence, including expert testimonies, to establish the extent of harm and the causal link to the defendant’s conduct.

Premises Liability Lawsuits for Child Drownings

Like other premises liability cases, property owners and other responsible individuals can be held liable for negligence that caused child drownings. The law asserts that property owners must take reasonable care to ensure their premises are safe to prevent avoidable, predictable risks of harm. If they do not respond to the risks or provide adequate protection, they become liable for any mishap or loss of life.

For example, if a child drowns in a residential swimming pool, the homeowner is likely to be sued if they did not fence the pool or install safety gates as provided by the law of California. Similarly, facility owners could be legally liable if a pool is public and has no lifeguard or warning signs for swimmers.

Premises liability claims in these cases mainly seek to prove that the defendant knew of the dangerous condition on the premises and failed to rectify it. In this case, the plaintiffs must be able to establish that the negligence complained of caused the child to drown.

Product Liability Lawsuits for Child Drownings

Your child could drown due to a defective product, for example, a defective pool gate, drain, or malfunctioning flotation device. If you could show that a product led to your child’s drowning, then you could file a product liability claim to hold the manufacturer or distributor liable.

Below are the elements you must prove beyond a reasonable doubt to secure compensation:

Defectiveness

Defectiveness assumes a significant position in product liability suits involving child drownings. Defectiveness may be design-related, manufacturing-related, or even marketing-related.

For example, a pool fence with gaps big enough for a child to climb through is considered defectively designed. Likewise, a pool alarm that does not sound when a child has drowned in the water can be classified as defectively manufactured.

These defects render the products dangerous for the purpose for which such products are used. Sometimes, a product designed and manufactured to the best standards is considered defective if it lacks adequate warnings or usage instructions.

Manufacturers and sellers are legally bound to guarantee that their products are safe for use, especially by children. This responsibility is even more crucial if the product is related to water usage, such as pool safety covers, water flotation devices, and alarms.

These products are used in homes, and designing them even with minor defects can lead to disastrous consequences, such as kids drowning. Therefore, if a child dies in a swimming pool due to a faulty safety product, the producer of the product can be charged with the injuries or death resulting from that product.

The analysis of defectiveness also requires considering the product's purpose and the harm caused. Was the product used in the way it was expected to be? If not, was the misuse reasonably foreseeable?  These are questions courts will ask when deciding on whether the product was defective or the defect caused the death of a child or the injury.

Causation

When a child has drowned, the question of causation is always essential in product liability claims, alongside being challenging to prove. Negligence means establishing that the defect in a product was the cause of the child’s injury or death.

You also have to prove the specific defect was the proximate cause of the incident. This means that an injury or death was bound to happen due to the presence of the defect. Once the manufacturer could reasonably expect that this defect in a product could lead to a child drowning, he could be held liable. For example, for a child who drowned after using a substandard material flotation device that was supposed to help her float, a proximate cause would be possible if the device deflated with the child in the water.

You bear the burden of showing that the defective product was present and that its existence and presence led to the incident. Most of the time, the courts will look at whether the product reasonably fits the purpose for which it was used. But if the ordinary person would have expected the product not to allow the child to drown and the product failed to do so due to the defect, causation is probably made. However, if the child’s actions or other circumstances in her environment played a significant role in the incident, it may break the chain, and the manufacturer would be hard to sue.

It is also essential to consider contributory negligence or misuse of the product. If the product was used in a way not intended by the manufacturer, or if the parents were negligent in supervising the child, it might reduce or eliminate the liability of the product manufacturer. In these cases, courts will examine whether the misuse was foreseeable.

Reasonable Usage

The term 'reasonable usage’ means that a product must be used as a typical user would expect and, therefore, obey the manufacturer’s guidelines. For example, a pool cover is designed to hold a specific amount of weight and to offer exclusion to the pool. If the cover gives in to normal use and a child drowns, then the manufacturer can be legally prosecuted.

However, reasonable usage may become a tricky question regarding children’s product engagement. Children have different ways of using items compared to adults, and manufacturers are expected to understand this. For example, a safety gate at a swimming pool should be constructed to prevent even the curious child from opening it because the child may climb or manipulate the gate in any way they deem fit. If this kind of foreseeable misuse is not considered in the design of a product, then the product is deemed defective.

Damages

In product liability claims, damages are awarded to the family to offset their concrete and non-concrete losses. Families can pursue two primary categories of damages: economic and non-economic damages, as explained in the section below.

  • Economic Damages

Economic damages compensate the family for all the expenses they incurred because of the occurrence. These include medical bills that may have been paid before the child's death, funeral and burial expenses, and any loss of potential income from that child had they lived. Economic losses are usually easy to quantify based on actual and expected future losses.

For example, the cost of medical treatment or emergency services that were probably offered before the child's death can be summed up to arrive at part of the economic damages. Likewise, funeral and burial expenses are quantifiable to give a starting point for the compensation the family is seeking.

  • Non-Economic Damages

Non-economic damages compensate for the family's suffering, including the loss of companionship, love, and guidance that the child would have offered in the future. These damages are qualitative and likely to differ from one case to another. Information about the child’s age, the relationship between the child and the family, and the effect on parents and siblings influence the assessment of non-economic losses.

  • Punitive Damages

Punitive damages are not paid to compensate the family but to punish the manufacturer if they acted negligently, willfully, or negligently. These damages are rare and awarded only when the manufacturer's behavior is reprehensible or negligent.

Wrongful Death Lawsuits for Child Drownings

Wrongful death lawsuits come into play when a child dies by drowning due to negligence or a wrongful act of another party. In California, such lawsuits are under the legal provisions of the California Code of Civil Procedure Section 377.60, which entitles some family members to seek damages.

With child drownings, wrongful death lawsuits can be brought against the following:

  • Property owners
  • Lifeguards
  • Pool service companies
  • Manufacturers of defective pool equipment

To succeed in such a lawsuit, you, as the grieving parent, must prove four key elements:

  1. Duty of care. This element sets the foundation for the defendant to have a legal responsibility to exercise reasonable care concerning your child. This duty is even more important when children are involved because they are helpless and cannot grasp the risks of water.
  2. Breach of duty. This breach manifested in many ways, such as the pool owner not installing proper fencing, a lifeguard not being attentive, or a pool maintenance company not fixing faulty equipment in the pool. In each of these situations, the standard of care was not as it should be, and your child was in danger.
  3. Causation. This means being able to show that the defendant’s negligence or wrongful act was a contributing factor to the death of your child. You need to prove causation, which relates the defendant’s breach of duty to the drowning.
  4. Damage. These are the losses as far as the death of the child is concerned. These may include special damages like funeral costs and loss of earnings and punitive damages such as sorrow and anguish for the family. In wrongful death actions, non-economic damages are often the greatest kind since they put a price tag on such things as the loss of a child in as far as companionship, love, and the potential that was robbed by premature death.

Recoverable Compensation in Child Drowning Lawsuits

In a situation where parents are bereaved of their child in a fatal drowning incident, there is nothing anyone or any amount of money can do to replace the lost child. However, the legal claim enables you to receive justice and compensation for this tragedy’s effects on your life.

Recoverable compensation in child drowning lawsuits typically falls into two categories, including:

Economic Damages

Compensatory damages are the measurable monetary losses occasioned by a child's death. They can consist of different costs and losses, current and future, that can be traced to the occurrence.

Among the most obvious and tangible economic losses are funeral and burial expenses, which may be incurred right after the person’s death. Burying fees are high, and this puts an extra burden financially at a time when the family is understandably grief-stricken. You can also seek reimbursement of these costs from the parties at fault for your child’s drowning.

Another aspect of economic loss is the loss of financial maintenance. Even though a child is not an earner, the law appreciates that children may have grown up to become earners in their families. As such, this type of loss is often difficult to estimate since it entails estimating the child’s future earnings, age, health, life expectancy, and probable line of work.

If there was any medical treatment needed before the child drowned, the cost of that treatment may also be recoverable. This includes hospital costs, ambulance charges, and any other medical expenses incurred while trying to keep the child alive.

Non-Economic Damages

Special damages are supposed to cater for the non-financial losses you suffer after losing your child through a tragic event. Such amounts are usually quantified with more problems since they are intended to provide for such a calamity's sense and psychological losses.

The most typical non-economic damages are loss of companionship and affection damages. When a child dies, parents lose that bond and the happiness that comes with being able to relate with a child. The parents can seek compensation for the loss, although no amount can fully compensate.

Pain and suffering encompasses what parents go through psychologically, sorrow, and pain that parents have to live with after burying their child. The loss is traumatic psychologically, and it can affect almost every domain in a person’s life. This may include mental health, interpersonal and social relations, and daily living. Non-economic losses also cover the affection, companionship, instruction, and protection that the child should have provided. This aspect acknowledges that children are part of the family and participate in all family activities, including this one, but are excluded from the emotional and social realm. When a child is lost, this future is stolen from them, and there is nothing that can ever replace it.

Punitive Damages

Punitive damages are awarded not to compensate for losses the claimant sustained due to the defendant’s actions but to punish the offender and prevent them from repeating the same mistake. While these damages are not usually alleged in a wrongful death claim, they could be if the defendant's actions were willful.

Call a Las Vegas Personal Injury Attorney Law Firm Near Me

Drowning is a common cause of death among children. During such a painful time, seek justice for your child and ensure that those who are responsible bear responsibility through the legal process. When you have a qualified personal accident lawyer, you can ensure your child gets the justice he deserves and the compensation that will go a long way to offset some of the costs of this tragedy.

Contact The Personal Injury Attorney Law Firm at 800-492-6718 for more information and to speak with a knowledgeable personal injury lawyer. We will handle all the complicated legal issues, giving you time to mourn and heal.