When someone dies in a water-related accident, surviving family members frequently ask our wrongful death lawyers, “How does a drowning attorney prove negligence in a lawsuit?”
A drowning attorney in Chicago proves negligence in a lawsuit by establishing that four elements exist. If the lawyer can establish a duty of care, breach of duty of care, causation, and damages, the victim will likely win the case. After gathering evidence and interviewing witnesses, the wrongful death lawyer may employ the services of accident reconstructionists and other experts to help prove how the drowning happened, and that drowning was the cause of death. A deeper investigation will identify who was liable and the sources of recovery available to victims’ families.
Who Is Likely to Drown?
Drowning is among the most common types of accidents to occur. In fact, it’s the 3rd leading cause of death worldwide involving unintentional injuries, with the World Health Organization reporting that it’s responsible for 7% of the world’s injury-related deaths.
In determining who is most likely to drown, there are some groups of people who are more vulnerable than others.
Children are the most likely to drown in nearly any type of drowning accident. Drowning is the leading cause of death for children between one and four years old in the U.S.
Although children are the most susceptible to drowning, seniors comprise one-third of fatal drowning victims.
People Who Are Unable to Swim
Around 80% of all fatal drowning accidents involve individuals who can’t swim, which often includes young children and seniors.
People with Disabilities
Individuals with physical disabilities are also more likely to drown, as they often have a hard time swimming or moving in the water.
What Causes Drowning Accidents?
There are several key factors that can contribute to drowning incidents, with the following also potentially causing near-drowning accidents:
- Swimming in unsupervised locations is the main cause of drowning cases involving children.
- Sudden changes in weather, including high winds and storms, which people may not expect.
- Failure to follow posted swimming regulations leads swimmers to drown if they swim in restricted areas or otherwise ignore warning signs.
- Fatigued swimmers who are unable to stay afloat.
- Impaired judgment and swimming abilities due to the consumption of alcohol or drugs.
- Seizures in individuals with epilepsy render them unable to swim or move in the water.
Swimmers should know the risks of various activities involving the water. By remaining aware of the swimming environment and only swimming with others, individuals can increase their chances of staying safe and enjoying water-related activities.
Of course, some drowning accidents may result from the negligence of others. In cases when negligence causes a drowning incident, victims’ loved ones may be able to file a lawsuit against the responsible parties.
What Is Negligence?
In law, negligence involves situations when someone exhibits careless behavior and, through this behavior, causes property damage or harm to another person.
When it comes to drowning accidents, multiple parties could be held liable. For instance, boat drivers may practice negligence when operating boats while intoxicated, causing boating accidents that lead occupants to fall overboard and drown.
In other cases, individuals or entities may neglect to post sufficient warnings or signage disclosing the dangers of swimming in the area. They may also fail to ensure that swimmers are safe using proper precautions.
Who Can Be Held Liable for Drowning Accidents?
Oftentimes, it’s challenging to prove liability in drownings and other types of preventable deaths. In the case of drowning, depending on the specifics of each case, one or more negligent parties may have caused the drowning. In the event of a fatal drowning accident, the surviving family members may be able to file a claim against a negligent property or business owners. In addition to proving negligence, a lawsuit would need to prove that the negligence caused the drowning death. If negligence caused a drowning death, the victim’s surviving family members would specifically file a wrongful death lawsuit in this case.
The following are some of the potential parties whose negligence may result in death due to drowning.
In a swimming pool accident or an accident on the beach, a lifeguard may be liable for drowning deaths.
Lifeguards must remain aware and take the proper steps to prevent children and others from coming to harm. There are several types of negligence that lifeguards may practice that can cause people to come to harm, including:
- Neglecting to carry binoculars — Lifeguards may be liable for injuries if they are unable to observe swimmers due to a failure to use binoculars.
- Insufficient training — Lifeguards who don’t have adequate training may be incapable of using equipment properly to prevent drowning accidents. Lifeguards should know what signs of distress to look for, how to perform resuscitation procedures, and other precautions needed to keep swimmers consistently safe.
- Unauthorized break periods — Lifeguards must only take breaks when permitted according to their schedule. If they take unauthorized breaks, they will leave the swimming area unsupervised and vulnerable to potential accidents, including drownings.
- Failure to warn — Lifeguards also need to indicate hazards to swimmers, including children who engage in a dangerous activity such as running or entering restricted areas. Otherwise, a lifeguard could be who is liable for swimming pool slip and fall accidents.
- The influence of drugs or alcohol — Lifeguards who work while intoxicated may not be alert and may experience impaired judgment, which could put others at risk of drowning. They may also be unable to react in time to help save swimmers in distress.
- Fatigue — Lifeguards need to remain consistently aware and alert to potential problems that might arise on duty. If a lifeguard experiences fatigue, they may fall asleep or stop paying attention in other ways while at their post.
Other potential forms of negligence that a lifeguard may practice include inadequate gear and distractions that could lead them to put others in harm’s way.
Residential Property Owner Negligence
If a drowning death takes place on private property, which may include a person’s yard or home, the residential property owners may be responsible. This is due to the fact that residential property owners need to keep guests safe and notify them of any potential dangers on the property. In cases involving children, attractive nuisance laws may apply.
Waterpark staff or owners may be negligent if a drowning incident takes place at a waterpark. Waterpark staff needs to work to maintain a safe environment for all guests, with lifeguards on duty who are aware and properly equipped. Meanwhile, waterpark owners need to make sure there’s plenty of signage that notifies guests of potential hazards, maintain a safe place for all guests by removing preventable hazards, and engage in regular maintenance to keep the property in good shape.
Business Owner/Manager Negligence
If a drowning accident takes place on another type of business property, the business owner or manager may be liable. Like waterpark owners and managers, those running other businesses need to ensure that customers are safe and notify them of potential hazards.
Required Components for a Successful Negligence Claim
In negligence claims, including claims involving drowning deaths, there are several core components. These include the following:
Duty of Care
The first item to prove in a successful negligence case is that the allegedly negligent party owed a duty of care to the accident victim. For instance, a lifeguard would need to owe a duty of care to a drowning victim at a swimming pool or injured at a Chicago beach. If the lifeguard was on duty in the area where the victim was located at the time of the accident, this may prove a duty of care.
Breach of Duty of Care
In addition, plaintiffs in negligence cases need to prove that the defendant breached their duty of care. If a lifeguard, for example, fell asleep on the job due to fatigue, allowing the victim to drown, this could constitute a breach of duty of care.
Cause of Injury
Plaintiffs must also prove that the defendant’s breach of duty of care directly contributed to the plaintiff’s injury or death. This would mean that the defendant’s actions or inaction were the main reason why the plaintiff sustained the injury.
Proximate Cause of Harm
This relates to the scope of the defendant’s liability in negligence claims. Defendants will only be liable for harms that they could have predicted through their actions. If damages result that the defendant couldn’t have foreseen due to the damages falling out of the scope of the risks they’re trained to look for and mitigate, the plaintiff will likely be unable to prove that the actions of the defendant were the proximate cause of the injuries.
Damages and Harm
Plaintiffs need to prove harm that’s legally recognized, which is usually a form of harm to people or property. In a drowning death, plaintiffs would prove that the defendant’s actions breached a duty of care, that the defendant was aware of the consequences this breach of duty would have, and that this negligence resulted in the drowning death.
What Are the Damages Involved in Drowning Cases?
In fatal drowning cases, victims’ families may be able to hire a wrongful death attorney to represent them. Typically, the family would include spouses, parents, or children. If a drowning victim is unmarried without children at the time of the accident, their parents are often the only family members who can file a wrongful death lawsuit. However, if the victim was a minor, the guardians or parents may file.
Depending on the case, victims or their families may recover a variety of economic and non-economic damages.
Economic damages are those that come with a specific monetary value. They’re easier to calculate than non-economic damages because they have clear costs. Some economic damages in drowning accident cases could include:
- Medical bills if the victim received treatment
- Funeral expenses
- Lost wages and benefits
Meanwhile, victims and their families may also sue for non-economic damages, which could include pain and suffering, or loss of companionship and consortium.
What to Do in the Event of a Drowning Accident
Drowning is a danger that’s present in locations with a body of water. This makes it important for people at these locations to know which steps to take if they witness someone drowning.
If someone witnesses another individual drowning, they can take the following actions:
Call for Assistance
If individuals are untrained, unable to swim, or otherwise unable to help the drowning victim, it’s important to call for help from a professional. This could involve calling for a lifeguard or the authorities.
Throw a Device to Help the Victim
If in reach, individuals may be able to throw a life preserver or another type of flotation device to help the victim stay afloat.
Keep the Victim’s Head Above Water
The observer may be able to swim to the victim, in which case he or she can try to hold the victim’s head above the water and begin moving him or her to safety or wait until rescue services arrive.
However, if the victim is too far away and the ability to safely swim to the victim is uncertain, it’s best to wait for help to arrive instead of entering the water. For example, a victim may be unable to swim because of an undertow in a river that’s pulling him or her underwater, which could wind up trapping the rescuer in addition to the first victim.
Administer CPR if Possible
Victims may not be able to breathe again without resuscitation. If the observer has CPR training and understands how to perform the procedure properly, he or she may be able to do so upon moving the victim to a safe area away from the water.
Stay with the Victim
Whether in a safe location or still in the water, it’s important to stay with the victim until medical professionals arrive at the scene.
Proving Negligence in Drowning Cases
A negligent party may be liable for a drowning accident. In these instances, drowning attorneys may be able to prove negligence by proving a duty of care, breach of that duty of care, and that the breach of duty caused the injury and damages.