Brain Injuries Caused by Nonfatal Drowning – Who is Liable?

Near drowning incidents are not just scary – they can also cause serious brain damage which is often irreversible. If you or a loved one has suffered a brain injury – whether by near drowning or other causes – you may have legal rights which must be vigorously defended. Contact an experienced brain injury attorney as soon as possible after any accident.

Theories of Liability

There are many ways in which an individual or business can be liable for brain injuries caused by a nonfatal near drowning. Here are some of the common legal theories that may apply to such cases:

Premises Liability: All landowners have a duty to make their premises safe. The level of safety required depends upon the injured party’s status on the land. If he or she is a social guest of a private homeowner, the landowner must warn of any known dangers. If the injury victim was a shopper on the owner’s land (a “business invitee”), the owner must inspect the premises and make them safe for customers. Trespassers on land are generally owed a very low duty of care, but landowners are still prohibited from inflicting harm upon them.

In near drowning cases, the status of the victim can determine what level of care was owed to him or her by the property owner. For example, the operator of a water park or public pool must make the facilities safe for customers on the premises. A private pool owner, on the other hand, need only warn guests about any particular dangers associated with the pool.

Attractive Nuisance Doctrine: The attractive nuisance doctrine applies to landowners with features (“attractive nuisances”) which attract children to their property. In general, the attractive nuisance doctrine holds landowners liable for a child’s injuries caused by the owner’s failure to protect the child from an attractive nuisance on his or her property. Imposing liability upon the landowner usually requires:

• The landowner knows (or should know) that children might trespass on the property.
• The condition on the property can cause injury or death to children.
• The injured child is too young to understand the dangers associated with the attractive nuisance.
• The cost of repairing or maintaining the attractive nuisance in a safe condition is small in comparison to the injuries it can cause.
• The landowner failed to take reasonable actions to prevent children from being injured by the attractive nuisance.

This is exactly what caused the tragic deaths of a five-year-old and his mother in Ohio. According to court records of the Supreme Court of Ohio, five-year-old Ricky Bennett crossed onto his neighbor’s yard one day and fell into the Stanley family’s swimming pool. The swimming pool had been drained and was unused. The Stanleys’ later testified that they did not use the pool and, therefore, had not put fencing or signs around it. Nonetheless, rainwater had accumulated in the pool and it now held water to a depth of approximately six feet. Ricky fell in the pool and drowned. His mother, attempting to save him, also drowned in the pool that day.

Failure to Supervise: Anyone who is charged with the care of a child can be held liable for injuries which occur due to negligent supervision. This is especially common with day care centers, schools, and other facilities which are paid for the express purpose of supervising children. But even private parties and friendly parents can be held liable for negligent supervision of a child. The parents of two teen boys who went missing at sea have been battling in court to determine whether the parents who owned the boat were liable for the boys’ wrongful death. An initial ruling held that the parents could only be sued for $500. Later, a judge ruled that the lawsuit against the parents could proceed for negligent supervision in allowing the boys to take the boat without adult supervision. The fourteen-year-old boys left from the Jupiter Inlet on a minimally equipped, nineteen-foot boat that was recovered eight months after the boys went missing. Their bodies were never found.

The Resiliency of Child Victims

Children, in particular, are known to be resilient to physical injuries. This caused a remarkable turnaround for one tiny near-drowning victim in Fayetteville, Arkansas. At the age of twenty-three months, young Eden Carlson slipped through a baby gate and fell into the family pool. She was underwater for between five and fifteen minutes. Her heart stopped, and it took one hundred minutes of CPR to restart the toddler’s heart. She spent five weeks in the hospital. With nothing further to be done in the hospital, Eden was sent home with a feeding tube and a heart monitor, which was necessary during the night when she stopped breathing and her parents had to resuscitate her. Her prognosis was not good.

After exploring other options for treatment, Eden’s parents consulted with doctors to begin oxygen therapy. This consisted of a series of oxygen treatments – both via nasal cannula and in a hyperbaric chamber – which vastly improved her cognitive functioning. An MRI scan taken 162 days after the injury showed only mild residual injury to the brain, and a near-complete reversal of the brain shrinkage which can occur in near-drowning cases.

Brain injury victims have legal rights under Florida law. They are legally entitled to be compensated for their injuries, pain and suffering, and lost wages. The Dolman Law Group has decades of experience in protecting the rights of brain injury victims in and around the Tampa Bay area. Call (727) 451-6900 to schedule your free consultation with an experienced, aggressive brain injury attorney today. Our friendly, professional staff offers the personalized service you need during this difficult time.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
727-451-6900

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