Anoxic Brain Injury, Near Drowning, Premises Liability
This near-drowning case involved a young woman who nearly drowned in an apartment swimming pool. She suffered severe anoxic brain injury resulting in persistent vegetative state. The tragic drowning happened on the last day of school and a few days after the season-opening of apartment swimming pool in Edmonds, Washington. While wading in the pool, the woman was unaware of abrupt slope change to the 9-foot-deep end. The woman went underwater and started drowning within a matter of seconds. Her friends and others in the pool tried to help, but it was too late. After being pulled to the deck of the swimming pool, she was unconscious and not breathing. Chest compressions and CPR were started, but she was already severely brain damaged.
After filing a lawsuit, lawyers at the Perey Law Group learned that no safety float line (a rope with floats used to separate the shallow and deep areas of a swimming pool) was installed at about the 4-foot depth in the swimming pool on the day of the incident. A float line serves the purpose of a visual warning, a physical barrier and an emergency hand hold. The float line was hanging uselessly on the pool enclosure fence. It was used during the winter to hold up the tarp covering the pool. Further, plaintiffs’ lawyers discovered a photograph of the pool with the float line in place prior to the date of incident that had been used to advertise the apartment on defendant’s website. The parties disputed whether a float line was required. Plaintiffs argued that a float line was required by national swimming pool industry standards and by WAC 246-260-090(11)(1991). Defendants argued that the industry standards did not require a float line and that the Washington Administrative Code provision made the use of a float line optional because the pool had a bottom marker line (a tile line spanning the width of the pool).
Defendants asserted affirmative defenses of comparative fault on the part of the drowning victim, her father, her sister and her stepmother. The parties filed cross-motions for summary judgment on that issue. King County Superior Court Judge Mary Roberts granted plaintiffs’ motion for summary judgment and dismissed the affirma-tive defense regarding the comparative fault, but allowed the comparative fault of plaintiff and her stepmother to survive summary judgment and be presented to the jury. The parties settled this case through post-mediation negotiation the week before trial.