While our personal injury lawyers have previously discussed the Florida 5th DCA case of Southern Owners Insurance Company v. Cooperativa v. De Seguros Multiples, etc. as it relates to negligent supervision, this blog considers a different issue. Although many drowning accidents in Florida result from lack of adequate supervision, trespassing children can receive special protection under the law. Swimming pools pose a unique risk to young children who often lack the maturity and experience to understand the threat of drowning or severe injury including brain damage from oxygen deprivation.
Although the main issue in the case involved the absence of a lifeguard or other supervision, drowning incidents sometimes involve children who wander onto property with a pool without express or implied permission. Lawsuits arising out of swimming pool drownings on the property of another are governed by premises liability law. When a person is injured by a hazard on the property of a third party, the individual’s purpose for being on the property will dictate the duty of care owed by the owner.
The general rule under Florida law is that a property owner does not have a duty to warn a trespasser of hazards on the premises, but the owner is not permitted to intentionally or recklessly create dangerous conditions that cause harm. Child trespassers are entitled to a higher duty of care under the attractive nuisance doctrine. This legal principle permits holding property owners financially responsible for hazardous conditions on their property that should be anticipated to be an enticement to child trespassers who lack the maturity to understand the nature of the risk. Swimming pools had traditionally been regarded as the classic example of an attractive nuisance.
The owner of a property can be liable for a fatality or injury to a child if the following apply:
- The property owner knew or should have known of a hazard on the premises.
- The owner knew or should have known the hazard posed an unreasonable risk of harm to child trespassers.
- The owner does not implement reasonable safeguards to eliminate the risk or otherwise protect child trespassers from the danger.
- The hardship involved in mitigating the risk is slight compared to the danger posed to children.
- The child was lured onto the property by the hazardous condition.
The hazard also must be man-made as opposed to a condition that occurs in nature. However, this distinction might not be straightforward in certain situations. While a pond on a property where a child drowns would not be an attractive nuisance, a row boat beached on the edge of the pond might justify imposing liability. Parents of drowning children should be aware that the owner of an apartment complex or condominium development like the owner in the personal injury case we discussed above can be liable for the catastrophic injury or wrongful death of a child trespasser. The Florida attractive nuisance law cites some specific examples of items that might constitute an attractive nuisance, which include freezer lockers, dryers, ice boxes, washers, refrigerators, or other airtight units with a locking door.
Greenberg, Stone, & Urbano: Seeking Maximum Recovery for Damages Sustained Due to Negligence
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