California Drowning Accident Lawyer: What Families Need to Know

Could Someone Be Legally Responsible for What Happened?

When families are ready to look at the law, California's starting point is a single sentence of its Civil Code.

Civil Code section 1714, subdivision (a), provides: "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself."

Three legal theories usually grow from that duty in drowning cases. Premises liability means the responsibility of someone who owns or controls property, such as a pool, to use ordinary care in how it is kept and run. Negligent supervision means a failure to use reasonable care in watching over swimmers, often children, by someone who had taken on that role. Wrongful death is a civil claim brought by certain family members when a death was caused by another's wrongful act or neglect.

A nonfatal drowning is a drowning event that a person survives. Some survivors live with a hypoxic or anoxic brain injury, harm to the brain from too little oxygen or none at all. California's statutes speak of "injury to" and "the death of" an individual, so both situations fall within the same framework.

A drowning does not, by itself, prove that anyone was careless. The law asks whether a duty existed, whether it was breached and whether that breach caused the harm. For a family, that means the question is less "did this happen" than "what did the people in charge of the water do or fail to do."

Fault can also be shared. If you are worried that a lapse by your family, or by the person who was hurt, ends any claim, California's rule is different. In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, the Supreme Court of California superseded the all-or-nothing rule of contributory negligence with a system of pure comparative negligence, which assigns liability in direct proportion to the amount of negligence of each of the parties. For non-economic damages, Civil Code section 1431.2, subdivision (a), makes each defendant's liability "several only," meaning each pays only the share allocated in direct proportion to that defendant's percentage of fault. How fault might be divided is one of the questions a conversation with an attorney can help sort out.

Does It Matter Where the Drowning Happened?

The place where the water was often shapes the law that applies. A hotel or resort pool, an apartment or condominium pool, a backyard pool at a friend's home, a water park, an ocean beach, a lake or a boat each comes with a different owner, a different operator and sometimes a different set of rules. For a family, simply learning who owned and ran that water is often the first concrete step toward understanding what happened.

Hotel and apartment pools are usually private businesses inviting guests or tenants to swim. The general duty in Civil Code section 1714(a) applies to how that property is managed. More on those settings appears on our page about hotel pool drowning cases.

Open land and water can be treated differently. Civil Code section 846, subdivision (a), provides that an owner of an interest in real property "owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions," except as the section provides. "Recreational purpose" refers to people coming onto land for activities like swimming or boating. Subdivision (d) states that the section does not limit liability that otherwise exists in listed situations, including a "willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity."

For a family whose child drowned at a lake, this can mean a very different legal question than a drowning at a hotel pool. Whether section 846 applies, and whether an exception does, depends on the property and how the person came to be there.

The setting also answers whether a city, a county or a state agency owned or operated the pool, beach or park. If so, California's separate claims process applies, discussed below.

Who Could Have Been Responsible for the Water — and What Would Have to Be Shown?

Many families do not know, at first, who owned the pool, who managed it, or whether anyone was paid to guard it. That is a normal place to begin. The answer often comes out slowly, from records and reports.

Depending on the facts, the people and businesses that may be examined in a California drowning case can include pool owners, property managers, hotels and resorts, apartment operators, water park operators, lifeguard services, makers of pool equipment and public entities. Civil Code section 1714(a) sets the general duty of ordinary care in the management of one's property or person, but not every defendant is measured only by that standard; claims against public entities, for example, are governed by the Government Claims Act, and equipment makers may face other theories of liability. Our page on pool owner liability walks through how that duty works for owners.

If you are trying to understand whether what happened could support a claim, a negligence case generally turns on four questions. Did the owner, operator or supervisor have a legal obligation to use reasonable care toward the person hurt (duty)? Did they fall short of that care, for example in how a pool was fenced, staffed, maintained or supervised (breach)? Did that shortfall actually lead to the drowning or injury (causation)? Did real harm result (damages)? Each answer has to be shown with evidence, and none is proven by the accident alone.

Because of the comparative fault rule in Li v. Yellow Cab Co., more than one party's conduct can be weighed in the same case. If only the most obvious name is examined, another party's share of fault may go unaddressed. That is one reason families often want a full picture of everyone involved.

Public entities stand apart. A city, county or state agency running a public pool or beach is subject to California's Government Claims Act. Learning early whether one was involved matters, because that path has its own requirements before any lawsuit, explained next.

Filing Deadlines Under California Law — and Why They Are Different for Public Entities

A statute of limitations is the time limit for filing a lawsuit. Code of Civil Procedure section 335.1 provides that an action "for injury to, or for the death of, an individual caused by the wrongful act or neglect of another" must be brought "within two years." In California, that is the general rule for both a near-drowning injury and a drowning death.

Children are treated differently in one way. Under Code of Civil Procedure section 352, subdivision (a), if a person entitled to sue was under the age of majority, or lacked the legal capacity to make decisions, when the cause of action accrued, that time "is not part of the time limited for the commencement of the action." Subdivision (b) states that this rule does not apply to an action against a public entity or public employee on a cause of action for which a claim must be presented under the Government Code.

That exception matters a great deal when a public pool, beach or park is involved. Government Code section 945.4 provides that, except as provided in sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on such a cause of action until a written claim has been presented and acted upon by the board, or deemed rejected.

Government Code section 911.2, subdivision (a), requires a claim "relating to a cause of action for death or for injury to person" to be presented "not later than six months after the accrual of the cause of action."

After that, Government Code section 945.6, subdivision (a), sets the time to sue, except as provided in sections 946.4 and 946.6 and subject to subdivision (b): if written notice is given under section 913, not later than six months after that notice is personally delivered or deposited in the mail; if it is not given, within two years from the accrual of the cause of action.

For a grieving family, it can be jarring that the law asks for paperwork this soon. When a public entity may be involved, knowing which path applies is often the most pressing legal question. If it would help to talk through whether a public pool or beach is part of your situation, our attorney can review it through a case evaluation.

Which Records May Help Explain What Happened?

In the first days after a drowning, nobody is thinking about evidence, and that is entirely understandable. Later, when questions about what happened grow louder, certain records tend to hold the answers.

If you were present, or are caring for someone who survived, the records that often matter include medical records documenting the injury, including any diagnosis of a hypoxic or anoxic brain injury, incident reports written by the property owner or operator, and police or first-responder reports. Photographs and video from the scene, and the names and contact information of people who saw what happened, often help show the condition of the pool and who was nearby. Memories fade and scenes change, so what a family keeps early can be what later shows the facts.

Some of the records that may matter most are not in the family's hands. Pool inspection and maintenance records, lifeguard staffing schedules and certification records, and any prior complaints, incident reports or citations involving the property usually sit with the property or a government agency. These can show how the water was kept and who was responsible for watching it. When a legal proceeding is underway, records held by others can be compelled to be produced.

None of these records proves fault on its own. Together, they help show the facts that California's duty, breach and causation questions turn on. Without them, those questions can be hard to answer; an attorney can help identify which records exist and who holds them.

Wrongful Death Claims in California After a Drowning

This section is for families who have lost someone. No legal process can measure that loss, and nothing here is meant to suggest otherwise. What the law does offer is a way for certain family members to ask questions about responsibility.

Code of Civil Procedure section 377.60 provides that a cause of action for a death caused by the wrongful act or neglect of another may be asserted by certain persons, or by the decedent's personal representative on their behalf. Under subdivision (a), those include "the decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession." If the parents would be entitled to bring the action and are deceased, the decedent's legal guardians, if any, may bring it as if they were the parents.

For parents who lose a child with no children of their own, this means the question of who may bring the claim often follows the rules of who would inherit. For a spouse, the statute names them directly.

The kinds of loss a wrongful death action may address depend on California's current law and the facts of the case. Where non-economic damages are involved, Civil Code section 1431.2(a) applies to wrongful death actions as it does to injury cases: each defendant is liable only for its proportionate share. No outcome can be predicted from the statute alone.