Article Author: Peter W. Riley
Although they are one of the country’s most popular forms of recreation, water sports, and specifically swimming and diving, are also quite dangerous. Statistics from the National YMCA Aquatic Program indicate that there are over 300 drownings in private pools every year. In the period 1945 through 1983, the National Safety Council estimated that over 245,000 people drowned in the United States; a significant number of these drownings occurred in swimming pools. The National Spinal Cord Injury Data Research Center has estimated that 800 people each year are rendered quadriplegics as a result of diving injuries. The purpose of this article is to give the reader an overview of aquatic injuries, with the specific focus upon swimming pools. Of most critical importance, however, is that the reader understand that it is not possible to produce a primer or CLE course which would fully prepare the individual practitioner to handle an aquatic injury case. To the contrary, these cases are invariably complex, lengthy, and costly, and the attorney contemplating undertaking the representation of a person injured under the circumstances discussed herein must be prepared to commit substantial time, energy, and financial resources to the client’s representation. The author also hopes that the reader will have a better sense of the potential dangers involved in aquatic sports, including swimming and diving, and will be better able to advise friends, family, and neighbors about the proper use of swimming pools and other such facilities.
II. SWIMMING POOLS
Swimming pools are of two general types; (a) above-ground, and (b) in-ground. Each have their own particular characteristics and associated hazards, and so will be discussed separately.
A. Above-ground pools.
These pools are generally the less expensive type, and they often come in a “kit” which the homeowner assembles in his or her backyard. Because they may not involve the excavation of any dirt (although see, infra) they can be set up simply and inexpensively. However, they have obvious limitations of depth. The typical above-ground pool will have a depth of 3 to 4 feet, a depth which is entirely inadequate for any diving. (See, types of injury, infra).
An exception to the limited depth of an above-ground pool is a hybrid type which involves a larger liner and which involves one portion of the pool having some dirt dug out underneath it to form a deeper end. Typically, these modified pools (above/in-ground) also are not of sufficient size to permit any type of diving.
Despite the fact that these pools are almost invariably unsuited to diving, above-ground pool manufacturers have been slow to acknowledge this limitation and to warn consumers of the dangers attendant to diving into such a structure. In fact, in some cases, pool manufacturers’ brochures even show, by way of illustration, persons diving from the side of the pool into the pool itself. In cases such as this, the manufacturer’s subsequent protestation that the pool was meant for swimming, not diving, is obviously without merit. Accordingly, any material that comes with any pool or other product used for aquatic activities should be carefully scrutinized in the event of a serious injury.
B. Inground pool.
These pools are the more expensive pools whose surface is essentially flush with the surrounding landscape. They obviously involve an extensive amount of excavation and preparation of the hole into which the pool will be placed. Although the types of installers that manufacture these pools vary, the two most common types are concrete liner and vinyl liner pools. In the former, after the hole is excavated, the area is contoured for the final dimensions of the pool, and then the side of the pool is lined with concrete or a similar substance. In vinyl liner pools, however, significant savings are achieved by utilizing a hard sandlike substance over the excavated dirt, and then placing on top of that a vinyl “liner” which is attached to the top edge of the pool to contain the water. Such pools are quite common in Minnesota, both for their adjustment to cold weather, and also because there are substantial cost savings in utilizing a vinyl liner, despite the fact that the liner must be replaced periodically. Within the vinyl liner/inground pool category, there was one particular type which merits special mention in the context of aquatic injuries. In an attempt to provide a “diving” environment, vinyl liner pool manufacturers, such as Fox Pools, have developed a type of bottom known as the “hopper” bottom. In looking at the pool longitudinally (for example, from the shallow to the deep end), one would see the usual configuration of a flat, shallow area, proceeding to a transition area to the deepest portion of the pool, and then an area that rises rapidly up to the wall of the pool. Typically, the shallow area in pools such as this is approximately 3 feet deep, and the bottom then drops away to a transition to the deep part of the pool, and then rises back up. The transition will generally descend to a depth of approximately 8 feet, but then the pool will rise again so that at the very edge of the pool the depth is in the area of approximately 5 feet.
Similarly, in looking at the pool across its width, the pool will have a uniform depth across the shallow end of approximately 3 feet. In the deep end, however, each side of the pool will also slant in so that at the wall of the pool the depth will be approximately 5 feet, whereas at the very middle of the deep end the depth will be 8 feet.
This is a less expensive way of manufacturing a pool that can be advertised with a depth of “8 feet”, where in reality the 8 foot depth will be only perhaps 8 feet by 8 feet square, leaving only a “target” of some 64 square feet for the diver to hit. Typically, these pools will also be installed with diving boards to further encourage diving.
It is also typical that none of the above-types of pools carry any kind of bottom marker to show the unacquainted user where the transition from the deep to the shallow end is, or where any of the “hopper bottom” sides are. Given a uniform blue bottom, the unacquainted user is led to believe that the entire deep end of the pool is 8 feet deep, and is totally unaware that the greater bottom area of the pool is far less than 8 feet deep. If an unsuspecting child or adult dives off the diving board and has the misfortune to miss the “hopper bottom”, quadriplegia can result. When coupled with the absence of any markings on the pool to show the unsuspecting diver even the area that they are supposed to hit, the defect in this type of product in its design and manufacture is apparent.
III. INJURY TYPES
While there are recorded instances of injuries occurring in the aquatic environment from many different sources, this article will focus on two types of injury, diving and drowning.
The scene is repeated with distressing frequency — someone unfamiliar with a swimming pool, and often after having consumed alcohol or another drug, dives into the water, either believing that the water is deeper than it is, or that he or she can adapt their dive to the existing depth. Striking their head upon the bottom of the pool, their neck is either hyperextended or hyperflexed, and devastating, often permanent spinal cord injury results. What follows is extensive rehabilitation, and a life of partial or total paralysis.
In handling this type of case, any attorney faces substantial preconceptions by the trier of fact, as well as by the trial judge. Most jurors will have dived themselves, and rarely have personal experience with a diving injury. In addition, jurors are often receptive on voir dire to discussions of watching trained swim racers start using so-called “racing dives” into 3 feet of water or less. Under these circumstances, the defense is obvious — if everyone else could dive safely, this individual must have caused their own injury, either by drinking or some other carelessness. The truth is quite often to the contrary. Environmental and human factors can contribute to a diving injury. For example, the absence of markings on the bottom of the pool can make it difficult for an unfamiliar user to determine the depth of the pool. Added to this is the fact that depth markers on the sides of pools are often inaccurate, and fail to inform the user that while a dive straight down at the marked point may well be into a 9 foot area, if the user strays more than a couple of feet to either side of the marker, the depth may change radically. For example, a 9 foot marker may be placed at the very base of the transition from the shallow to the deep end. When someone dives from the 9 foot marker towards the shallow end, their dive may take them 8 feet or more from the point of the marker. At the point of entry into the water, the water depth may very well be substantially less than the 9 feet which the user is expecting.
The “hopper bottom” discussed above also can play a role in injuries of this type. With a hopper bottom that is 8 feet on a side, the diver has only 64 foot square area in which to dive. If the inexperienced diver does not precisely hit this “target”, he or she may find himself diving into 5 feet or less of water, instead of the 8 or 9 feet which they expected.
Safe depth diving research is also very revealing. Few, if any, pool users know and understand that when someone dives from any type of a raised area, such as a diving board or platform, their body does not begin to decelerate until at least one-half of it is in the water. Thus, if someone 6 feet tall dives from a diving board straight down into 3 feet of water, the effect is little, if any, different from diving into an empty pool! While it is indeed true that trained divers can execute dives into 3 feet of water without injury, inexperienced water users do not have the training or expertise to make such a dive, and all pools should have as a rule that no one dive into water less than 9 feet deep. In fact, swimming pool research has shown that injuries can happen in depths up to 16 feet, a depth which virtually no residential, and few commercial pools provide.
The substance which lines the pool, whether concrete or vinyl, can also alter the risk of injury. Many people who dive do so with their hands out in front of their heads. However, vinyl liner pools are often quite slippery, especially if they are not carefully maintained to avoid any type of growth or accumulation of oil or other residue upon the liner itself. When a diver enters into too shallow water, they undoubtedly expect that their hands will form a safety-type barricade above their heads for any type of obstruction they might hit. However, a slippery vinyl liner can cause the hands to slip out from on top of the head, exposing the head to hyperextension or hyperflexion, depending upon the angle at which the head strikes the bottom of the pool; in either event, catastrophic spinal cord injury can result.
Every summer, newspaper, radio and television seem to carry several stories of young children who wandered into too deep areas of pools or other bodies of water, resulting in their drowning deaths. When coupled with the absence of lifeguards at commercial pools at hotels and other facilities, including even athletic clubs, it is apparent that a moments inattention by a parent can result in a lifetime of emotional trauma. Even adults who are untrained in swimming can fall into the trap of believing that they can simply wade about the shallow end of a pool or other body of water, and when they slip or are drawn by a current into deeper waters, can then drown.
Claims arising out of the drownings of small children in pools or other bodies of water most frequently involve the failure of the pool owner to properly protect and isolate persons from coming into the pool area. Most municipalities now require fencing around pools, and in addition there are a number of pool “alarms” which are available which would alert the owner in the event a small child falls into the pool. In addition, there are a number of types of covers which are manufactured which are sufficiently strong to prevent a child from falling into the pool. These may be deployed either manually or by motor.
Given the availability of alarms, fences, and hard covers, it is extremely difficult to understand why the rate of infant and young child drownings in pools is as high as it is.
Similarly, the absence of a lifeguard at public pools such as hotels and athletic clubs is very difficult to justify. The defense in “no lifeguard cases” often rely upon the absence of any state requirement of a lifeguard and the absence of any “industry standards” in this regard. However, the industry standards, if carefully examined, amount to little more than groups of hotel owners getting together and deciding that they don’t want to spend the money for a lifeguard, rather than the true attempt to balance the cost with the benefit to be obtained from the presence of a lifeguard.
IV. THEORIES OF RECOVERY AND DEFENSE
1. Product Defect
Swimming pools are, like other water devices, a product, and as such, must not be unreasonably dangerous to users thereof. Inasmuch as extensive research has been done into safe diving depths, diving injuries, the effect of warnings, and other human factors, the individual who dives believing the area to be safe, and who subsequently discovers that it is not, or whose dive is caused to be altered by defect in the pool (such as a slippery coaming (edge) which causes them to dive straight down when they intended to dive in a flat trajectory) can produce evidence of a product defect. For example, reported cases have found as defects which rendered the product unreasonably dangerous the following conditions:
a. Absence of depth markers.
b. “Hopper bottom” design.
c. Pool deck designs that allow the pooling of water and the resultant growth of slippery algae, causing the user to slip and fall into the pool, breaking his neck.
The above list is not meant to be exhaustive, and is simply illustrative of the type of product defects which have been identified in swimming pools. In addition, the very presence of a diving board in a pool without sufficient depth and space for dive can, in and of itself, be considered a product defect.
With the continues erosion of the distinction between strict product liability and negligence, all of the conditions of defect set forth above can also be considered under the concept of negligence. Here, as well, there can be found recovery for failure to have a lifeguard, proper safety equipment, proper pool markings, and for improper pool maintenance which allows the water to be cloudy, preventing the user from determining the actual depth of the pool or other body of water.
3. Contributory Negligence
The principle defense which meets claims of pool defect or negligence in these types of injuries is that of contributory negligence. As was discussed above, the plaintiffs may face not only the preconceived notions of the jury, but also hostility from trial courts who will refuse to allow the matter to proceed to trial under the guise of a summary judgment determination that there are no “disputed issues of fact.” It was under just such a scenario that the plaintiff in McCormick v. Custom Pools, Inc., et al., 376 N.W.2d 471 (Minn. App. 1985) ended up being denied his day in court. In McCormick, the plaintiff was rendered a quadriplegic when he dove into the shallow end of a swimming pool at his friend’s house. McCormick testified in his deposition that he dove into the shallow end intending to do a flat dive, and go over to the deep end of the pool.
After this testimony, both the manufacturer and installer of the pool moved for summary judgment. In opposition to this motion, the plaintiff’s counsel submitted the affidavit of the pool design engineer who had surveyed the pool. This expert identified defects as follows:
a. Failure to warn.
b. Failure to mark the pool to delineate the ends of the unsafe diving area.
c. The entire shallow area was completely flat, as opposed to a shallow slope to the shallow end of the pool.
d. Absence of retention of any safety engineer or others to specifically identify the potential safety hazards of the pool and correct same.
The trial court dismissed McCormick’s claim, holding that the sole cause of the accident was the plaintiff’s failure to do a safe surface dive.
The Court of Appeals affirmed, holding that since McCormick was aware of the risk of a shallow water dive, the failure to warn was not a cause of his injury, and that McCormick was aware of all the pool defects of which he complained, including the depth and slope of the pool. Significantly, the Court of Appeals in this case sat en banc. The majority opinion was written by Judge Huspeni who was joined in her decision by Judges Popovich, Randall and Forsberg. Judges Foley, Parker and Crippen dissented. Review was denied by the Minnesota Supreme Court.
Subsequently, in Jonathan v. Kvaal, the Court of Appeals, again sitting en banc, decided a quite similar case in favor of allowing a claim. In Jonathan v. Kvaal, plaintiff was a tenant in the defendant’s home, which had in its backyard a vinyl liner above-ground swimming pool. A portion of the shallow end of the pool was dug into a hill in Kvaal’s backyard, which resulted in a shorter distance from ground to pool than at other points. The pool had markers of depth around it, with a minimum depth of 4 feet and a maximum depth of 7 feet; the pool also contained a sign warning against jumping and diving.
Since he was a tenant at the home, Jonathan had used the pool on at least 10 occasions prior to his injury. In addition, the plaintiff had helped the defendant completely dismantle, clean and reassemble the pool, and acknowledged he was aware of the warning sign and depth marker. On one occasion previous to the night of his injury, the plaintiff had entered the pool from the roof of the house (it is not clear from the opinion whether he had dived on this occasion or jumped); in any event, the defendant had warned plaintiff not to do this again.
On the night of his injury, Jonathan drank an unknown quantity of strong beer at home, and then went to several local bars and continued to drink. Upon returning from the bar, he indicated in his deposition
he decided to go for a swim, jogged along the side of the pool and dove into the shallow end where it had been dug into the ground; as a result of the dive, he is a quadriplegic.
As in McCormick, the defendants moved for summary judgment on the basis of plaintiff’s familiarity with the pool. The trial court dismissed the case.
On appeal, the Court of Appeals, sitting en banc, reversed the trial court and remanded for trial. The opinion was written by Judge Foley; Judges Randall, Wozniak, Forsberg, Huspeni, and Popovich dissented. The Court distinguished McCormick, noting that in that case, the plaintiff was an experienced swimmer, whereas the plaintiff in Jonathan considered himself at most a “fair swimmer.” In addition, the plaintiff in McCormick knew that a “body surface dive” was necessary in view of the height of his entry and depth of the water of the pool; in Jonathan, the Court noted plaintiff did not have such knowledge.
A careful reading of both of these cases demonstrates that the true distinction in their holdings can be found not in the facts before the Court, but the composition of the Court at the time of the decision. Since the Jonathan opinion does not specifically identify those joining with Judge Foley, it is not possible to identify which Judge turned the tide; however, the dissenters in Jonathan were all in the majority in McCormick, and thus the distinction is obvious. Clear, too, is the lesson to be learned by plaintiff’s counsel — a plaintiff’s knowledge of the risks of his dive can be fatal to his or her claim. In fact, the knowledge which the plaintiff in McCormick claimed to possess is simply illogical — had Mr. McCormick truly known what he professed in his deposition to know, he could never and would never have dived into the pool. To the contrary, it is precisely because pool users think that dangerous acts are safe that the number of pool diving injuries is so high.
V. OTHER TYPES OF AQUATIC INJURIES
While this article is focused upon swimming pool injuries, it is important to recall that there are numerous other potential areas of injury. As an example, “hot tubs” or “spas” have produced numerous drownings. Small children get into the pools and either find them too deep in which to wade, or else are sucked into the drains in the bottom of the spas. In addition, adults have been drowned by having hair or other parts of their body caught in drains which were improperly covered, or not covered at all.
Water slides are another potential source of serious injury. In utilizing water slides, a popular form of aquatic recreation, it is essential that users proceed only feet first, not head first.
In the health-conscious 90’s, water sports will undoubtedly remain a popular form of recreation. Hopefully, lawsuits and education programs will produce safer sports as well.