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In most cases, the owner of the property and the company that managed the pool are the first places to look. A drowning or near drowning at an apartment, hotel or community pool often follows a barrier, gate or supervision failure that a rule already required.
The step that cannot wait is the physical scene. Gates, latches and fences are often repaired quickly after an incident, and the condition on the day is the evidence. Near drowning is not the lesser case, because an anoxic brain injury produces lifelong care needs. Call 713-521-0059.
Pools are regulated, and that is the starting point for your claim. Enclosure height, self closing and self latching gates, latch height, depth markings, drain covers and posted safety equipment are governed by state and local requirements. A drowning frequently follows a gate that did not latch or a fence gap that had been reported. When a barrier was missing or broken, the records often show who knew and who was supposed to fix it.
In your case, the records often matter as much as the fence. Many properties keep maintenance logs, inspection reports, work orders and resident complaints about the pool. A complaint about a broken latch weeks before an incident can be one of the most important documents in your case. If you or a neighbor ever complained about the gate, find the email, text or portal message and keep it.
The property owner and the management company that controlled the premises are the usual defendants. Sometimes a pool maintenance contractor or an equipment manufacturer is responsible, where a drain or cover failed. Our page on defective product claims covers that side of a case. Each party may carry its own insurance, so your claim is usually stronger when all of them are identified early.
Where a child is involved, arguments about parental supervision are common. You should expect the property owner or its insurer to raise it early. In Texas responsibility is apportioned by percentage under Chapter 33 of the Civil Practice and Remedies Code. A claimant can recover so long as the claimant is not more than 50 percent responsible, and recovery is reduced by the claimant’s percentage. So a supervision argument usually narrows a claim rather than ending it. It also does not change what the rules required of the property, such as a gate that closes and latches on its own.
Sometimes a child is pushed, jumped on or held under by another child. For your claim, the questions about the property usually stay the same: who controlled the premises, and whether the fence, gate and latch were in the condition the rules required. Where a pool had a lifeguard, an attendant or a supervised swim program, what that staff was supposed to watch for can also matter. The age of the child who caused the harm can affect a claim against that child’s family. It does not change who controlled the pool or what its barriers should have been.
If you can, photograph the fence, the gate, the latch and its height, the depth markings, the drains and the posted signage before anything is repaired. Ask in writing for inspection records and prior complaints. Repairs after an incident happen fast.
Write down who was on duty, whether there was a lifeguard or attendant, and the names of other residents or guests who were there. Keep any access card, wristband or key fob. If you were not there, ask the people who were to write down what they saw while it is fresh. Ask the property in writing to keep its camera footage, because many systems record over old footage on a schedule. Emergency responders, the hospital and the police may each have a report, and each one is requested separately.
Under Section 16.003 of the Civil Practice and Remedies Code, most injury claims must be filed within two years after the day the claim accrues, which is usually the date of the injury. For a death claim, Section 16.003(b) runs the two years from the date of death. Exceptions can apply, and the facts decide which period is yours.
Where a drowning is fatal, your family may have a claim under Chapter 71. Section 71.004 allows the surviving spouse, children and parents to bring a wrongful death action. Section 71.021 separately allows a survival action for the claims the person who died would have had. Our page on wrongful death claims explains more. Call 713-521-0059.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Most of this evidence is held by the property, not by you. Photographs taken before repairs, work orders from the weeks before and after, and complaints from other residents are often what show the risk was known. A written request to keep all of it is the first step.
We start with the physical scene and the property’s own records, because together they show what was required and what was there. Then we identify every responsible party: the owner, the management company, any pool contractor, and the maker of any equipment that failed.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
Often, yes. The claim is usually against the owner and the management company that controlled the pool. It turns on whether the gate, fence and latch met the rules and whether earlier complaints were ignored.
It can reduce a claim, but it usually does not end it. Under Chapter 33, a claimant can recover so long as the claimant is not more than 50 percent responsible, and recovery is reduced by that percentage.
It can be. Near drowning is not the lesser case, because an anoxic brain injury produces lifelong care needs that have to be documented and planned for.
The questions about the property usually stay the same: who controlled the premises and whether its barriers were in the condition the rules required. The other child's age can affect a claim against that child's family, but it does not change who controlled the pool or what its barriers should have been.
The fence, the gate, the latch and its height, the depth markings, the drains and the posted signage, before anything is repaired.
Generally two years after the day the claim accrues, which is usually the date of the injury, under Section 16.003 of the Civil Practice and Remedies Code. In a death case, the period runs from the date of death. Exceptions can apply, so ask about your dates early.