According to the Centers for Disease Control (CDC), there are thousands of drownings in the United States each year, including Colorado. A large percentage of those victims are under the age of 15. If a person survives, the lack of oxygen from being underwater for so long can cause permanent brain damage and subsequent disabilities. Premise liability, personal injury, and/or wrongful death claims may be pursued in some cases.
At Hagen Nares PLLC, our personal injury lawyer in Colorado handles these very sensitive cases. If you or a loved one has suffered, you can get financial relief to help with the expenses arising out of this type of accident. Call Hagen Nares PLLC today at 720-772-8513 to schedule a Free Consultation.
Liability and Colorado Drowning Accidents
Critical to any drowning case is proving liability for the injury or wrongful death. Liability can rest with many different people or entities, depending on the facts and circumstances as well as the theory behind the lawsuit. The liable party could be a neighbor who failed to fence their pool or a private entity (e.g. waterpark owner) who failed to adequately hire and train employees. It could even be a babysitter agency that provided a babysitter who failed to supervise a young child in the bathtub.
Generally, civil cases for drowning arise out of premises liability, negligence per se, and/or product liability legal theories.
Premises Liability in Colorado
Liability under the premises liability theory often falls into three categories that define the type of injured party.
- Visitors. Visitors are people who are invited (directly or indirectly) onto another property (usually a commercial property), and the owner or manager benefits from them. Examples include patrons of grocery stores, malls, hotels, private recreational facilities, and the like. In these situations, the property or business owner may be liable for a drowning when there is a failure to inspect, identify, and address any hazardous condition, like those that could cause or lead to drowning.
- Licensees. Licensees are people (e.g., friends, family members, or utility workers) who are on another person's property for their own benefit and not the property owner, manager, or renter's benefit. There is no duty to inspect the property for hazards, but if a hazard is known or should have been known, reasonable steps must be taken to prevent a drowning.
- Trespassers. Trespassers are people on the property without benefit to and authorization by the property owner. As such, property owners typically do not owe a duty of care to trespassers. There are, however, two situations where property or business owners may owe a duty. First, if trespassers are foreseeable, a property owner can't create a situation that poses a harm to trespasses without warning them. Second, if the trespasser is a child and the property owner knows or should know that children may be curious about a hazard on the property (e.g., a pond), the property owner must take steps to address the condition.
That legal duty to keep visitors safe extends to public beaches and parks, as well. In these situations where the property is public and not private, procedural hurdles must be overcome before filing a lawsuit against a government entity.
Negligence Per Se
Negligence per se is the theory that a person or entity is automatically deemed negligent for breaking a law or rule and someone gets hurt because of it. In these cases, however, the harm must have been foreseeable or what the law was meant to prevent.
At a recreational park, if regulations are not followed and a violation leads to drowning, the violation could be enough to support a negligence per se claim.
Product Liability
Pools, jacuzzis, bathtubs, and all other similar and related products can be the subject of a product liability claim if there was a defect in the product and that defect led to or created a hazardous situation. As a result of the defect, a victim drowned. Three types of defects could exist: a defect in the design of the product, a defect in the making of the product, or a defect in advertising where adequate warnings of the possibility of drowning were not provided.
Compensation for Victims and Loved Ones of Drowning in Colorado
Compensation is dependent on who is to be compensated: a survivor of a drowning or the loved ones of a drowning victim who did not survive. In general, there are two types of compensation: economic and non-economic.
Economic Damages
You can expect to be reimbursed for any and all medical bills (past, present, future), transportation costs, lost wages, and loss of earning income. Economic damages are relatively easy to determine, but you want to keep track of all expenses and costs related to the injury. If it's a wrongful death claim, you may also recover expenses like funeral costs.
Non-Economic Damages
You can receive non-economic damages for things like but not limited to pain and suffering, mental distress, loss of enjoyment, and loss of consortium. Non-economic damages are not easily quantifiable. To calculate roughly what non-economic damages could be worth, you should consider the sum of economic damages, the extent and severity of the injury, the injury's permanence, and/or the extent and impact of the loved one's death on surviving family members.
Who Sues if the Victim Dies from Drowning in Colorado?
If a victim dies from drowning, the victims' family may be able to bring a wrongful death lawsuit against the at-fault party. Potential families members who could bring the lawsuit include immediate family members, like:
- Spouse
- Child
- Grandchild (when the deceased grandparent's children are also deceased)
- Grandparent (when the deceased child's parents are also deceased)
- Anyone entitled to the property of the drowned victim in accordance with that state's intestate succession laws.
When a drowning victim survives but lives in a vegetative state, the power of attorney may sue on the victim's behalf. The power of attorney, if not already designated in an estate plan, is typically the victim's spouse or closest relative.
Who Pays the Compensation?
Typically, compensation is paid out through the insurance company. It could be the property insurance of the business or it could be homeowner's insurance. Sometimes, these insurance companies or insurance adjusters will refuse to settle. If they do, then a personal injury lawyer can take the case to trial and force them to pay.
Possible Defenses in a Drowning Lawsuit
Defendants often fight lawsuits, especially when it involves an insurance company. They will try to blame the victim and will invoke defenses like:
- The victim assumed the risk of drowning, meaning the victim knew of the risk and chose to go into the water anyway
- There was no duty of care, meaning the property owner owed no duty to the victim
- The victim contributed to the accident–under contributory negligence laws, the victim will not recover if shown to be at fault by just a little percentage; and under comparative negligence laws, the compensation will be reduced by the percentage the court finds the victim to have been at fault
- The victim waived liability, which happens when the victim signed a liability waiver to partake in certain activities, like swimming, rafting, surfing, boating, jet skiing, and more
Because insurance companies will hit hard with their defenses, it is important to retain a personal injury or wrongful death lawyer who can properly and adequately address and counter any defense invoked by the defendant.
Contact a Personal injury Lawyer for Drowning Accident in Colorado Today
At Hagen Nares PLLC, we want to make sure you get the compensation you deserve. Drowning accidents can be very traumatic. Death often results. The trauma it causes to loved ones is exponential. Contact us today at 720-772-8513 to schedule a Free Consultation with someone who can help you during this difficult time.