Hot Tub Drowning: What Families Need to Know About Legal Rights and Responsibility

What Makes Hot Tubs and Spas Different From Other Water Hazards

A hot tub is a small, enclosed body of hot water, moved by a pump through jets and drains. The hazards are often built into the equipment and the property, not just into a moment when someone looked away. That is part of why families are often surprised that a drowning could happen in water so shallow.

A spa drowning is a drowning or near-drowning in a hot tub, spa or similar heated tub, whether the person dies or survives. Federal law treats these structures as part of the same family as pools: under 15 U.S.C. § 8002, "swimming pool" or "spa" means any outdoor or indoor structure intended for swimming or recreational bathing, and it expressly includes hot tubs, spas, portable spas and non-portable wading pools.

Hot tub drain entrapment happens when the suction at a drain holds a person's hair, a limb or the body against the opening, so the person cannot pull free or come up for air. The same section defines a "main drain" as a submerged suction outlet, typically at the bottom of a pool or spa, that carries water to a recirculating pump.

Heat and the shape of the tub matter too. Hot water is one of the conditions families and investigators ask about when a person became faint, confused or unconscious, and molded seats and steep walls can make it harder for someone in trouble to get out on their own.

The federal law aimed at drain entrapment is the Virginia Graeme Baker Pool and Spa Safety Act, beginning at 15 U.S.C. § 8001. In its findings, Congress stated that adult supervision at all aquatic venues is a critical safety factor in preventing children from drowning, and that barriers or fencing, used properly, along with additional layers of protection, could substantially reduce childhood residential pool drownings and near drownings.

For a family, this means a hot tub drowning is not only a question of who was watching. The drain, the pump, the cover and the layout of the tub may each carry legal weight. Whether the Act applies to a particular hot tub, and whether any feature played a part, depends on the facts. A family may find it useful to write down what they remember about the tub itself, such as where it was, whether it was covered and what the drain looked like, while those details are still fresh, and an attorney can help sort out which of them matter.

Common Scenarios in Hot Tub Drowning Cases

These cases tend to fall into a handful of patterns, described here by what happened to the person. The next sections look at the duties and equipment behind them. None of these patterns, on its own, shows that anyone was at fault.

• Drain or suction entrapment, where a child's long hair, a hand or a foot is held by a drain. Children are smaller and may play near the bottom of the tub, which is why this pattern so often involves them.
• A child who reaches a hotel, resort or vacation-rental hot tub without an adult nearby, sometimes through a gate that did not latch or a door left open.
• An adult who loses consciousness from heat, alcohol or medication and is not found in time. Here the questions often turn to whether others could see the tub, whether anyone was checking on it, and whether a cover or barrier was in place when the tub was not in use.
• An equipment problem at the moment of the incident, such as a pump that kept running when someone was held at the drain.

Federal law gives barriers a specific meaning for hot tubs. Under 15 U.S.C. § 8002, a "barrier" includes a natural or constructed feature that prevents unpermitted access by children to a swimming pool, and, with respect to a hot tub, a lockable cover. For a family whose child was found in a backyard or rental-home spa, that definition is one reason the cover, and whether it was locked, so often becomes part of the story.

A spa drowning can also involve more than one pattern at once, such as a gate left open and a drain cover that was cracked. Which pattern fits what happened is a question of fact. Talking through the timeline with an attorney can help a family see which of these patterns, if any, matches their own.

What Hot Tub and Spa Owners Are Required to Do

When a person is hurt on someone else's property, the law that usually applies is premises liability: the legal doctrine that holds property owners and those who control a property responsible for keeping it reasonably safe for the people on it. For a family, this is where the question "could this have been prevented?" starts to take legal shape.

State law sets most of these duties, and it differs from state to state. In many states, the duty depends on why the person was on the property, for example a paying hotel guest, a tenant, a social guest at a home, or a child who wandered in. Commercial properties such as hotels, resorts and apartment complexes are often held to a higher duty toward their guests than a homeowner owes a visitor, though the exact standard varies by state. No single state's rule applies everywhere.

Federal law adds equipment rules for spas open to the public. If your family's incident happened at a public spa, 15 U.S.C. § 8003 says that spa must be equipped with anti-entrapment devices or systems that comply with the ASME/ANSI A112.19.8 performance standard, or any successor standard. If that spa had a single main drain, other than an unblockable drain, the law also calls for at least one of these systems:

• a safety vacuum release system that stops the pump, reverses the flow or otherwise releases the vacuum when a blockage is detected, tested by an independent third party to ASME/ANSI A112.19.17 or ASTM F2387;
• a suction-limiting vent system with a tamper-resistant atmospheric opening;
• a gravity drainage system that uses a collector tank;
• an automatic pump shut-off system;
• a device or system that disables the drain; or
• any other system the Consumer Product Safety Commission determines is equally effective or better.

Whether a spa counts as "public" is the first question. The statute's definition reaches a spa open to the public generally, for a fee or free; one open only to members of an organization and their guests, to residents of an apartment building, apartment complex or other multi-family residential area, or to patrons of a hotel or other public accommodations facility; and one operated by the federal government, or a concessionaire on its behalf, for members of the Armed Forces, agency employees and their dependents. A private backyard spa used only by a family is not on that list.

What is at stake is which set of rules a family can point to. At a hotel, apartment complex or club spa, both state premises-liability duties and the federal equipment rules may be in play; at a private home, the question rests mainly on state law. Beyond equipment, the duties a court may examine under state law include maintaining the tub, posting warnings, restricting access and supervising where that is required. Whether an owner met them depends on the facts. A family may weigh where the spa was, who ran it and who could use it, and an attorney can help sort out which duties applied.

Safety Failures That Appear in Hot Tub Drowning Cases

Where the scenarios above describe what happened to a person, this section looks at what investigators check at the tub itself. Each category links something physical to a legal question. Listing them here is not a finding that any of them occurred in any case.

The drain cover is often first. Under 15 U.S.C. § 8003, each pool or spa drain cover manufactured, distributed or entered into commerce in the United States must conform to the entrapment protection standards of ASME/ANSI A112.19.8 or a successor standard. The current federal regulation, 16 C.F.R. § 1450.3, generally requires drain covers to conform to ANSI/APSP/ICC-16 2017, the American National Standard for Suction Outlet Fitting Assemblies for use in pools, spas and hot tubs. In a hot tub drain entrapment case, those standards are a benchmark for asking whether a cover was missing, cracked, loose or not compliant. Whether a cover met them is a question of fact.

Other categories investigations often examine include:

• whether an emergency shut-off or other required anti-entrapment system was present and working;
• whether barriers, fencing, self-closing gates or locking covers kept children out when no adult was there;
• whether the equipment was inspected and maintained on a regular schedule;
• whether warning signs addressed water temperature, alcohol and time limits;
• whether a commercial property provided supervision or lifeguard coverage where it may have been required.

For a family, what is at stake is the link between a failure and the harm. "A safety failure" and "the cause of the injury" are two separate questions: a broken latch may be found, and the law will still ask whether it made a difference. Both questions depend on records and equipment that may change after an incident. A family may want to ask whether the tub, its drain cover and its records still exist in their original condition, and an attorney can help sort out how those questions are usually approached.

Injuries That Follow a Hot Tub Drowning or Near-Drowning

There is no easy way to write about this part. Some families reading this have lost someone. Others are sitting beside a hospital bed, waiting to hear what recovery might look like.

A nonfatal drowning is a drowning event in which the person survives, at least at first. Some survivors recover; others are left with lasting effects. When the brain goes without enough oxygen during a drowning, doctors may describe a hypoxic brain injury, meaning damage from reduced oxygen to the brain, or an anoxic brain injury, meaning damage from a complete loss of oxygen. Survivors of a hot tub near-drowning may face long-term neurological effects, and what those effects are for any one person is something only their doctors can describe. Entrapment can also cause physical injuries where the body was held against the drain.

When a drowning ends in death, the claim the law allows is usually a wrongful death claim: a legal claim brought by surviving family members when a death is caused by another party's negligence or wrongful act. Who may bring it, and for which losses, is set by each state's wrongful-death statute.

The kind of injury shapes the kinds of damages the law may allow. In general terms these can include medical expenses, lost earnings, pain and suffering and, after a death, the losses a state's wrongful-death law recognizes for the family. Which categories apply depends on the injury, the facts and the law of the state. None of it measures what a family has lost, and the law does not pretend that it does.

When the time feels right, a family may consider keeping medical records, bills and notes from doctors together, since they describe the injury the law will look at. An attorney can help sort out whether the situation points toward a personal injury claim or a wrongful death claim, and who in the family may bring it.

Evidence That Often Matters in These Cases

Evidence is what connects a safety failure to a legal question about responsibility. Equipment can be repaired, footage can be recorded over and memories fade, so the condition of things in the first days after an incident often becomes important. Families in the middle of grief are not expected to think like investigators, and many only begin to think about this later.

The evidence that usually matters falls into a few groups.

• Physical evidence: the hot tub or spa itself, the drain covers, the pump and shut-off systems, and the barriers, gates and covers, in the condition they were in at the time.
• Documents: maintenance logs, inspection records, prior complaints or incident reports, and equipment purchase and installation records.
• Photos and video: pictures of the scene and the equipment, and any surveillance footage.
• Medical records documenting the injury and the treatment that followed.
• Witness accounts from bystanders, hotel or resort staff and first responders, and the names of the people who were there.

Recalls and safety notices are a separate record. If a manufacturer, distributor or retailer of a spa part learned that it may be unsafe, federal law expects that company to tell the Consumer Product Safety Commission. Under 15 U.S.C. § 2064, that report is due when the company obtains information that reasonably supports the conclusion that a product fails to comply with an applicable safety rule, contains a defect that could create a substantial product hazard, or creates an unreasonable risk of serious injury or death. The Commission may order notice, repair, replacement or a refund. For a family, a recall covering a drain cover or other spa part is not a finding that the part injured anyone, but whether one exists can be part of the record.

If you are sorting through what was kept and what may still exist, a conversation about these records is one step a family may want to consider; you can request a case evaluation to talk through it with our attorney.

Who May Bear Responsibility for a Hot Tub Drowning

Many families reasonably wonder whether anyone is responsible at all, or whether it was simply a terrible accident. The law asks that question carefully, and the answer can involve one party, several or none. The categories below are types of parties, not anyone in particular.

• Property owners and operators, such as hotels, resorts, apartment complexes, rental-home owners and private homeowners, under premises liability.
• Equipment manufacturers and component suppliers, under products liability if a defect in a drain cover, pump or shut-off system contributed. Products liability is the legal doctrine that holds manufacturers and sellers responsible for injuries caused by defective products. Federal regulations describe a defect as "a fault, flaw, or irregularity that causes weakness, failure, or inadequacy in form or function," arising from manufacturing errors, design, or warnings and instructions, under 16 C.F.R. § 1115.4.
• Maintenance and service companies, under negligence, if improper maintenance or repair contributed.
• Rental property managers and platforms, where responsibility depends on the facts and on the state's law.

More than one of these may share responsibility in the same case. How fault is divided is decided by state law. Many states use comparative fault, which reduces or divides responsibility according to each party's share of fault, including any share assigned to the injured person; a few use stricter rules, and the details differ. State law also sets the deadlines for filing. A statute of limitations is the period within which a claim must be filed, after which the right to sue is generally lost, and wrongful-death claims and claims involving government-run facilities may carry their own separate periods or notice requirements. This page does not set out any one state's deadlines; the site's state pages, such as those for Florida drowning claims, Arizona drowning claims and Georgia drowning claims, describe those states' rules from their own statutes. Which parties and which deadlines matter for one family's situation is a question a conversation with an attorney can help sort out.