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In most cases, drownings and injuries around pools or lakes in Georgia involve the concept of premises liability or negligent lifeguarding. This article will examine some of the issues present in these types of cases.
These are by far the strongest cases to present. There are strict procedures that lifeguards must follow and without negligence, it is rare that a child drowns in a pool watched by a lifeguard in Georgia. If a child drowns in Georgia while under the supervision of a lifeguard, there is usually a strong case against the entity behind the lifeguard, if they are private.
In cases involving City pools, unless the City has insurance or there are private lifeguarding entities that can be sued, the claim is likely barred.
“The operation of public…swimming facilities, primarily for public benefit rather than for revenue… is a governmental function, so that the city is shielded from negligence claims by the doctrine of governmental immunity.” Scott v. Millen 153 Ga. App. 231 (1980)
However, that sovereign immunity can be waived through the purchase of insurance, usually through GIRMA (Georgia Interlocal Risk Management Agency). Note also OCGA § 33-24-51 (purchase of insurance for motor vehicles)
Be aware that the Georgia Recreational Property Act can act as a bar to any claim for injury at a City pool. Under O.G.C.A. § 51-3-21(3), an owner “who invites or permits without charge any person to use the property for recreational purposes” is immune from suit.
Sometimes tragedy strikes after hours or because of some element of design in the pool or lake area. In those circumstances, a general premises liability analysis will apply. Premises liability is a surprisingly simple body of law that can be condensed into this: if the person or company owning or running the facility knows more about a particular danger than you do and you are hurt by the danger, then there may be a case. If the danger is obvious, there is probably no case because your knowledge is equal to the owner’s.
We will deal here with people who are allowed to be on the property. Remember that trespassers have far fewer rights when illegally on the property. “A landowner owes only a minimal duty to a trespasser: to avoid willfully or wantonly injuring” them. Gomez v. Julian LeCraw & Co. 269 Ga. App 576 (2004) (however remember that if the property owner knows that people trespass there frequently, the duty increases)
Lake drowning cases, absent a lifeguard, are challenging. In one important case, the family of a woman who drowned in Dekalb County Georgia sued a property developer, arguing that the owner should have erected a fence around the detention pond. While the experts disagreed on whether the fence was required under the code, the appellate court cut to the heart of the matter and threw the case out on summary judgment, finding that the mother was fully aware the lake was there and could have appreciated the risk of drowning. In other words, the woman who drowned had knowledge equal to that of the landowner so there was no case. Brazier v. Phoenix Group 280 Ga. App. 67 (2006)
A constant concern for Georgia parents and homeowners are children who trespass into swimming pools and drown. It is every parent’s nightmare and it happens all too frequently. So what is the law? If your child wanders into a neighbors pool or an apartment complex pool and drowns, is the pool owner responsible? It’s trespassing, right?
Georgia has adopted the attractive nuisance doctrine. Gregory v. Johnson 249 Ga. 151 (1982) When it comes to child trespassers, the law puts a special duty on property owners if they own a place where an artificial condition (as opposed to a lake) exists which will attract kids. The condition has to be “inherently alluring.” A swimming pool is a perfect example but a stack of railroad ties or wooden shelves is not.
Consider though a case where children snuck into a closed apartment pool through a hole in the fence.
The Court reiterated that drowning is an obvious danger that even children appreciate and a plaintiff older than 7 may assume the risk of drowning by going into the water. They then held that the trial judge who threw the case out was correct in that there was nothing the grieving mother could do to point to the responsibility on the part of the pool. Rice v. Oaks Investors II 292 Ga. App. 692 (2008)
In summary, speak with a lawyer who deals with drowning cases in Georgia soon after the tragedy to determine what duties and rights apply.