Arkansas Drowning Accident Lawyer

How Arkansas Law Looks at a Drowning Case

If you have lost someone to the water, or someone you love is still fighting to recover, the law can feel very far away right now. It is here when you are ready for it.

Most drowning claims rest on a few legal ideas. The first is premises liability: the responsibility a person or business has for the safety of property it owns or controls, such as a pool, a dock or a beach area. A claim of this kind generally asks whether there was a duty of care, whether it was breached, whether that breach caused the injury or death, and what harm followed. The second is negligent supervision: a claim that someone who had a duty to watch over the person in the water, such as a lifeguard, a camp, a school or another supervisor, failed to do so with reasonable care. A third, where a drain, gate, pump or other product is involved, is product liability.

Arkansas sets its own rules for these claims. It compares the fault of everyone involved, sets three-year limits for wrongful-death and product claims, and lets its courts decide how a wrongful-death recovery is divided. These rules are found in the Arkansas Code of 1987 Annotated, and each is explained below. A neighboring state's rule, or the rules described on our page for a California drowning accident lawyer, does not carry over into Arkansas.

A drowning, however painful, does not by itself prove that anyone did something wrong. The questions that matter are what happened, who was responsible for what, and what each person knew and did. Some families begin by writing down what they already know; a conversation with an attorney can help sort out which of these legal ideas, if any, fits.

When a Drowning Happened at a Pool, Lake or Open Land in Arkansas

Drowning and near-drowning accidents in Arkansas can happen at hotel and resort pools, apartment-complex pools, water parks, private backyard pools, lakes and rivers, and during boating. Each setting raises different questions, because the law looks at who owned or controlled the place and why the person was there.

The relationship between the owner and the person in the water shapes what duty the law imposes. Arkansas law speaks of the "legal status of an invitee or licensee to whom a duty of care is owed." In general terms, an invitee is someone invited onto property, often for the owner's business, such as a paying hotel guest. A licensee is someone present with permission. How a person is classified can change what a claim has to show. Our page on pool owner liability explains these categories more broadly, and our page on hotel pool drowning cases covers that setting.

Recreational-use immunity is an Arkansas rule that protects certain landowners who open their land to the public for free. Section 18-11-305 of the Arkansas Code of 1987 Annotated provides that, except as section 18-11-307 recognizes or provides, an owner of land who invites or permits any person to use the property for recreational purposes without charge does not by that permission:

1. Extend any assurance that the lands or premises are safe for any purpose;
2. Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed;
3. Assume responsibility for or incur liability for any injury caused by an act or omission of such persons; or
4. Assume responsibility for or incur liability for injury caused by any natural or artificial condition, structure, or personal property on the land.

The words "without charge" matter: the protection is tied to free use. Section 18-11-307 of the Arkansas Code of 1987 Annotated sets out exceptions to this immunity. For a family whose loved one drowned at a lake, swimming hole or other open land, whether immunity applies turns on the type of property and whether anything was paid. Who owned the land, why the person was there and whether any fee, ticket or rental was involved are points a family may weigh and raise with an attorney.

Who May Be Responsible When a Loved One Is Hurt at a Pool or in the Water

When a family asks who could be responsible, the honest answer starts with a question: who controlled the water, the area around it and the equipment in it? The answer shapes which parties a claim could look to, and which it could not.

If your loved one was hurt at a hotel, an apartment complex, a water park or a private pool, the owner or operator may have owed a duty of reasonable care. Around a pool or waterway, that duty generally concerns how the area was maintained, fenced, gated, marked and equipped, so those are the details a family may notice and remember.

If someone was supposed to be watching swimmers, such as a lifeguard, a camp, a school program or a hired lifeguard company, a negligent-supervision claim asks whether that person or group took on that responsibility and whether it was allegedly not met. What role each one actually took on often decides whether this question arises at all.

Equipment and product makers may be part of the picture when a defective drain, drain cover, gate, pump or other product is involved. Arkansas treats these as product liability actions under section 16-116-203 of the Arkansas Code of 1987 Annotated, discussed with the deadlines below. A drain or gate being at the scene is not, by itself, proof that it was faulty or that it caused the harm.

More than one party may be involved, each in a different way. If one is overlooked, a claim may end up looking only at part of what went wrong. A family may weigh who ran the property, who was watching and what equipment was in use, and an attorney can help sort out how each fits.

When the Other Side Says the Injured Person Was Partly at Fault

Arkansas uses a rule called comparative fault: a way of comparing the share of blame of the person bringing the claim with the share of those being sued. Section 16-64-122 of the Arkansas Code of 1987 Annotated applies it, except as provided under section 16-118-109, to actions for personal injuries or wrongful death in which recovery is based on fault. Its key words are these:

"If the fault chargeable to a party claiming damages is of a lesser degree than the fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is entitled to recover the amount of his or her damages after they have been diminished in proportion to the degree of his or her own fault."

And the statute continues: if the claimant's fault "is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entitled to recover such damages."

In plain words, if the claimant's share is found smaller than the share of those being sued, damages are reduced by that share. If the shares are equal, such as an even fifty-fifty split, or the claimant's share is larger, there is no recovery. The statute defines "fault" broadly, to include any act, omission, conduct, risk assumed, breach of warranty or breach of a legal duty that is a proximate cause of the damages.

For families after a child's drowning, this can be one of the hardest parts. Questions about a parent's supervision, or about a teenager's own choices, may come up, and fault is divided on what actually happened. A family may find it useful to think through how the other side might describe events, and to ask an attorney how this rule could apply.

Filing Deadlines Under Arkansas Law for a Drowning Claim

A statute of limitations is a law that sets the time within which a lawsuit must be started. If a claim is filed after the deadline, a court may refuse to hear it, however strong it might otherwise be. That is a hard thing to read while grieving, so here are the Arkansas rules plainly.

Wrongful death. Section 16-62-102 of the Arkansas Code of 1987 Annotated requires every wrongful-death action to be commenced within three years after the death. The claim is brought by and in the name of the personal representative of the person who died, or by the heirs at law if there is no personal representative. The statute gives an exception allowing a longer period against a person convicted of capital murder or first- or second-degree murder. If a nonsuit (a voluntary dismissal) is entered, the action must be brought within one year from the date the nonsuit was entered, without regard to the date of death.

Product liability. Section 16-116-203 of the Arkansas Code of 1987 Annotated provides that all product liability actions shall be commenced within three years after the date on which the death, injury or damage complained of occurs.

Young people. Section 16-56-116 of the Arkansas Code of 1987 Annotated provides that if a person entitled to bring an action is under twenty-one years of age, or insane, when the cause of action accrues, that person may bring it within three years after attaining full age, or within three years after the disability is removed. A disability counts only if it existed when the right of action accrued, and where two or more disabilities existed then, the limitation does not attach until all are removed.

When a period starts and whether an exception fits are questions for the specific case. If dates are weighing on you, our case evaluation page is one way to start a conversation about them.

When a Family Brings a Wrongful Death Claim in Arkansas

Wrongful death is a claim the law allows when a death is caused by someone else's wrongful act, neglect or default. Under section 16-62-102 of the Arkansas Code of 1987 Annotated, it applies where the person who died could have brought a claim had they lived, and the claim survives even the death of the person alleged to have caused the death.

The personal representative brings the claim, or the heirs at law if there is none, but the statute names who benefits from it: the surviving spouse, children, father, mother, brothers and sisters; persons of any age standing in loco parentis (in the place of a parent) to the person who died; and persons to whom the person who died stood in loco parentis.

The jury, or the court where there is no jury, may fix damages that are fair and just compensation for pecuniary injuries, including a spouse's loss of services and companionship and any mental anguish suffered by the surviving spouse and beneficiaries. The statute says that mental anguish includes the "grief normally associated with the loss of a loved one." No part of the recovery is subject to the debts of the person who died. The judge fixes each beneficiary's share, though a jury makes that division at the request of any beneficiary or party, and courts approving a settlement consider the best interests of all the beneficiaries.

No law can give back a child or a partner. What this statute does is recognize, in its own words, that grief is a real loss. A family may weigh who among them would serve as personal representative and who falls within the statute's list of beneficiaries; an attorney can help work through these questions.

Records That Help a Family Show What Happened

A drowning death, a nonfatal drowning (a drowning the person survives) and a hypoxic or anoxic brain injury (brain injury from a lack of, or loss of, oxygen) each leave different records behind. In a death, the records often include the death certificate and any medical or emergency records. After a near-drowning, the hospital and rehabilitation records describe the injury and the care that followed. These records are often how a family's account of what happened is shown, and when they are missing, that account can be harder to support.

Beyond medical records, families and injured people often gather:

• incident reports filed by the property owner, the operator or a responding agency;
• photos and video of the scene, including any surveillance footage;
• records about the pool, waterway or equipment, such as inspection logs, maintenance records and safety certifications;
• the names and contact details of people who were present; and
• any product involved, such as a drain cover, gate or pump, along with purchase records where they exist.

Each item connects to a question covered above: photos and inspection logs to how the setting was kept, ownership records to who controlled it, witness names to what happened, and medical records to what the injury cost. A family may weigh which of these it already has, and an attorney can help see where gaps may exist.

Discussing a Drowning Case in Arkansas

A drowning or near-drowning in Arkansas raises questions that turn on details: where it happened, who owned or ran the pool or shoreline, whether the use was free, who was supervising, and what the dates are. A conversation with our attorney can cover the setting, the people and equipment involved, the injuries and treatment, the reports, photos and witnesses, and whether any product was kept. This page explains Arkansas law in general; it does not cover trampoline, theme park ride or boating-equipment product claims outside drowning.

When you are ready to talk through what happened with our attorney, you can request a case evaluation through Water Safety Justice Group.