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The Centers for Disease Control and Prevention lists Louisiana as the third leading state for drowning deaths, behind Alaska and Hawaii. The number of child drownings in Louisiana even increased by 50% from 2019 to 2020. The CDC also estimates that 11 fatal and 22 non-fatal drowning events occur daily across the U.S.

Even non-fatal drowning incidents can result in significant, lifelong injuries due to oxygen deprivation. Some victims also experience organ damage, especially to their lungs, hearts, and brains.

You may be able to recover damages for injuries sustained while swimming without a lifeguard, depending on the specific circumstances of your case. Read on to learn about the assumption of risk and how premises liability law treats child victims.

What is the Assumption of Risk?

Assumption of risk is a legal doctrine that absolves defendants of liability when plaintiffs voluntarily accepted the inherent dangers of the actions that led to their injuries. The defendants use this doctrine as an affirmative defense. It doesn’t apply if the plaintiff wasn’t aware of the risks.

Warning Signs

Signs that warn of dangers negate the owner’s liability if the sign is visible, near the threat, and specifically lists the danger. For example, a sign warning you not to feed the wildlife on a beach wouldn’t apply to drowning injuries. A sign warning of the risk of drowning at a pier wouldn’t apply to injuries sustained from a dock breaking.

Obvious Danger

Potential defendants don’t owe potential plaintiffs a legal duty if the plaintiffs know the risks and proceed with the activity despite them. This doctrine applies to situations that involve apparent danger. It also applies when you sign a liability waiver that explains the risks.

Some examples of accepting the risk and proceeding with an activity include:

  • Swimming at a closed beach, even if other people are using it
  • Swimming in plain view of warning signs
  • Swimming in a pool with no lifeguard and posted warning signs that no lifeguard is on duty
  • Trespassing to go swimming at a closed beach or pool
  • Swimming at a beach that doesn’t and has never had a sign or lifeguard
  • Swimming at a beach displaying a red or yellow flag warning

You can contact Dudley DeBosier Injury Lawyers to discuss your case if you’re unsure how or if assumption of risk applies to your claim. We can answer your questions and give you feedback during a free consultation.

Premises Liability and Child Victims

Drowning kills more 1 to 4-year-old children than any other cause except congenital disabilities.

Louisiana premises liability laws outline the minimum duties property owners must perform regarding visitors. They must maintain their property to eliminate hazardous conditions or provide adequate warning of those conditions so visitors can avoid them.

Because children cannot accurately assess risk, premises liability law places a higher duty of care on property owners, especially when there is a pool or other water feature on the property. Curious children sometimes wander onto a neighbor’s property to investigate pools, ponds, and cliffs. Louisiana considers these features “attractive nuisances.”

Attractive Nuisance

An attractive nuisance is any property feature that attracts children and poses a danger to them; water features pose a drowning risk, and cliffs pose a fall risk. Property owners owe an extra duty of care to children, even trespassers, to prevent them from being harmed by these features.

Property insurance companies often make property owners install fences at least four feet tall and that use a self-latching gate around pools to prevent children from getting access. Sometimes owners fail to maintain these fences or leave the gates open, allowing children to get in, leaving the owners potentially liable.

Damages for Child Victims

Because children don’t have jobs, they can’t receive compensation for lost wages after a near-drowning; however, they can recover damages for loss of earning capacity if they suffer long-term neurological defects after non-fatal drowning incidents. Many of these children require intensive care in and out of the hospital for years down the road and into their future careers. In most other respects, damages for children and adults are similar.

Discover if You Have a Case

Contact the Louisiana premises liability attorneys at Dudley DeBosier Injury Lawyers to schedule a free case evaluation. We will examine your evidence and ask questions to determine if you can win a personal injury or wrongful death claim after a drowning at a pool or beach.

We believe everyone deserves access to justice, which is why we work on contingency. We don’t collect any fees unless we win your case.

Disclaimer: This content has been reviewed by Chad Lederman, Director of Legal Operations at our New Orleans office.

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