Delaware Drowning Accident Lawyer

What a Family's Drowning Claim Has to Show Under Delaware Law

A drowning, on its own, does not prove that anyone was careless. That can be a hard thing to read when the loss is so large. But the law asks a set of questions, and those questions decide whether a claim exists.

If your family is wondering whether someone was at fault, a negligence claim generally asks four things about what happened. Did someone have a legal responsibility toward the person who was hurt (a duty)? Was that responsibility not met (a breach)? Did that failure actually lead to the injury or death (causation)? Is there real harm the law recognizes (damages)? Each answer depends on the facts, and a claim generally needs all four.

In drowning cases, two theories come up most often. Premises liability is the responsibility a property owner or operator may have for the condition of a pool, a beach area or a waterfront, such as gates, drain covers, depth markings or rescue equipment. Negligent supervision is a claim that a person with a duty to watch swimmers, such as a lifeguard, a camp counselor or a hired caregiver, failed to do so in a way that contributed to the harm. Our site's page on pool owner liability explains how owner duties are framed.

What this means for a family is that grief and a sense of injustice are not the same as a legal claim; the claim depends on whether these four questions can be answered from the facts. Families often begin by writing down what they remember about who was watching and what the water area looked like, since those details speak to duty and breach.

Why the Place Where It Happened Can Change a Family's Claim

The place where a drowning happened often shapes the law that applies. A family thinking back on the day may not realize how much the setting matters.

Delaware water settings include hotel, resort and vacation rental pools, especially near the coast; apartment and condominium community pools; water parks and recreational facilities; the Atlantic Ocean beaches and the Delaware Bay shoreline; lakes, ponds and inland waterways; and boats on all of these waters.

Each setting raises a different question about who controlled the water. A hotel guest paid to stay, and a hotel pool raises its own issues, covered on our hotel pool drowning page. An apartment pool may be run by a management company rather than the owner. A beach may be public land. A lake may be private land opened to the public for free.

The visitor's status can matter too. Delaware's recreational-use law, discussed below, refers to the legal status of an invitee or licensee to whom a duty of care is owed, which shows that the relationship between a visitor and an owner is part of the analysis. A family may weigh how the person came to be there: as a paying guest, a resident, a visitor invited at no charge, or a member of the public. That detail, along with who ran the water area, is often one of the first things an attorney asks about.

Who Could Be Held Responsible for What Happened

Responsibility in Delaware turns on who owed a duty and whether it was breached, not simply on who was nearby. Several kinds of parties can be involved:

• Private property owners, both residential and commercial, who own the pool or waterfront.
• Hotel, resort and apartment complex operators, and the management companies that run their pools.
• Counties, towns and other local government bodies that run public pools, parks or beaches.
• Lifeguard services and staffing companies hired to supervise swimmers.
• Manufacturers of pool equipment, such as drain covers or safety devices.

For a family, the identity of the defendant can change the whole path of a claim. If a management company rather than the owner ran the pool, the question of who owed the duty may point to that company. If a county or town ran the pool or beach, special rules apply. Under section 4011 of Title 10 of the Delaware Code, governmental entities are immune from tort suits except where a statute expressly provides otherwise, and section 4012 lists exceptions, including negligent ownership, maintenance or use of machinery or equipment, whether mobile or stationary. Notice and damages rules for these claims appear in the deadlines section.

A claim against a manufacturer is a product claim. It generally asks whether the product was defective and whether that defect caused the harm. A drowning near a piece of equipment does not show that the equipment was defective.

More than one party may share responsibility, and whether any of them is responsible depends on the facts. A family may find it useful to note who owned the property, who ran the pool or beach day to day, and who was hired to watch swimmers. Sorting out which of these parties had control is often a central part of a conversation with an attorney.

Filing Deadlines Under Delaware Law

A statute of limitations is a law that sets the time to file a lawsuit. These deadlines are among the most consequential rules a family faces, because a claim filed too late can be barred no matter what happened.

For injuries, section 8119 of Title 10 of the Delaware Code states:

"No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained; subject, however, to the provisions of § 8127 of this title."

For a death, section 8107 of Title 10 provides that no action for wrongful death "shall be brought after the expiration of 2 years from the accruing of the cause of such action." Section 8117 of Title 10 adds that time a defendant spends out of the state, in the ways it describes, may not count toward the limit.

If the drowning happened at a pool or beach run by a county or town, the family may face an extra step. Under section 4013 of Title 10, a political subdivision may require notice by ordinance, but that requirement cannot bar suit if notice is given within 1 year of the occurrence. The same section limits damages, including costs, against a political subdivision and its employees to $300,000 for all claims from a single occurrence, unless the subdivision buys more insurance, in which case the limit is the coverage amount. This limit applies only to those claims. Separately, section 8124 of Title 10 requires written notice to the Mayor of Wilmington within 1 year for injury or death claims against the Mayor and Council of Wilmington.

For a family in the first weeks after a loss, these dates can feel unbearable to think about. Deadline questions are worth raising early in any conversation with an attorney, because the right date can depend on who the defendant is.

When a Family Is Told the Injured Person Shared the Fault — Delaware's Comparative Fault Rule

"Was it partly our fault?" Many parents carry that question quietly. When an insurer or a defendant raises it out loud, it can feel like blame on top of grief. Delaware's rule does not make that question the end of the matter.

Section 8132 of Title 10 of the Delaware Code sets out comparative negligence, the rule for weighing each side's share of fault:

"...the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or the plaintiff's legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff."

In plain words, a family is not automatically shut out because some fault is found on their side. Any damages are reduced by that share. If the plaintiff's negligence is greater than the combined negligence of the defendants, the rule bars recovery.

How fault is divided is often hotly contested. It turns on what each person knew, could see and was responsible for at that moment. If an insurer suggests the injured person or a parent was to blame, a family may weigh that statement against what others were responsible for, such as supervision or the pool's condition. An attorney can help sort out how each party's role may be viewed under this rule.

Wrongful Death in Delaware — Who Can Bring a Claim and What the Law Covers

This section is for families who have lost someone. No statute can measure that loss. The law gives a framework, and nothing more.

Under section 3722 of Title 10 of the Delaware Code, an action may be brought against a person whose wrongful act causes another's death.

Section 3724 says who the claim is for. It is "for the benefit of the spouse, parent, child and siblings of the deceased person." If none of them qualify, it is for any person related to the deceased by blood or marriage. Only one action lies for each death. The two-year period in section 8107, described above, applies.

For a grieving family, section 3724 describes the kinds of loss the court or jury may consider, including:

• the financial support the family could have expected from the person's continued life;
• the parental, marital and household help the person gave, including the reasonable cost of caring for minor children;
• reasonable funeral expenses up to $7,000, or the amount designated in section 5546(a) of Title 29, whichever is greater;
• mental anguish to the surviving spouse and next of kin, limited to the family members the statute names in its order.

Punitive damages may be awarded only if the death was maliciously intended or resulted from reckless, wilful or wanton misconduct, and only through a separate finding. Section 3725 states the law's purpose: to permit recovery "not limited to pecuniary losses." Whether a claim may be brought, and what it may include, depends on the facts. Because only one action lies for each death, family members often consider together who is named in the statute, and an attorney can help explain how that one claim is brought on behalf of everyone it covers.

If the Drowning Happened at a Lake, Pond or Open Land — Delaware's Recreational-Use Law

Families who lost someone at a lake, a pond or open land sometimes learn that Delaware has a special rule for recreational land. It can change what an owner owed.

Section 5903 of Title 7 of the Delaware Code provides that, except as section 5906 provides, an owner "owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition." Section 5902 defines recreational purposes to include swimming and boating, among other activities. It defines land to include water and watercourses, and an owner to include a tenant, occupant or person in control of the premises.

The exceptions in section 5906 matter a great deal. The chapter does not limit liability that otherwise exists for wilful or malicious failure to guard or warn against a dangerous condition. It also does not limit liability where the owner charges people to enter for recreational use. Payment an owner gets for leasing land to the State or a subdivision is not counted as a charge.

So a paid swim area and a free lakefront may be treated very differently. Whether the statute applies depends on the property, how people came to be there, and the statute's own conditions. A family may look back on whether anyone paid to enter, and whether the owner knew of a danger and gave no warning. Those details often shape an early conversation with an attorney about whether this rule applies.

What Records Can Show About What Happened

The records from that day, and from before it, often tell the story the law asks about. Each one ties back to duty, breach, causation or damages. For a family, these records can be the difference between a question that stays open and one that can be answered.

If someone you love survived, the records that usually matter include the medical records of the injury, treatment and diagnosis. A hypoxic or anoxic brain injury means harm to the brain from too little oxygen (hypoxic) or none at all (anoxic). It is often central to a near-drowning, also called a nonfatal drowning, and the medical records describe what doctors found.

Families and injured people also often gather:

• incident reports written by the property owner, operator, or a police, fire or rescue agency;
• photographs and video of the scene, including any surveillance footage;
• pool inspection, maintenance and lifeguard staffing records;
• the names and contact details of people who saw what happened;
• any prior complaints, citations or inspection records tied to the property.

Some of these are in the family's hands, and others are held by a business or agency. If surveillance footage or staffing records held by someone else are lost, the family may have fewer ways to show who was watching or what the pool looked like. Sorting out which records exist, and who holds them, is often part of an early conversation with an attorney.

Questions a Family May Have Before Speaking With a Delaware Drowning Lawyer

When a family first thinks about calling a Delaware drowning lawyer, the questions are usually heavier than legal ones. Many of them sound like this:

• What happened, and why did no one stop it?
• Who owed a duty to the person who was hurt or who died?
• Does the setting, whether a pool, beach, lake or boat, change what the law requires?
• What does Delaware's comparative fault rule mean for a family?
• What do Delaware's deadlines mean for this kind of claim?

These questions matter because each one ties to a rule above: duty, the setting, shared fault and the filing deadlines. Not every question has an answer before a conversation. Some answers depend on facts only the family knows, such as who was watching, what was said, and what the pool or shoreline looked like. Others depend on records held by someone else.

A case evaluation is a conversation with our attorney about what happened: the place, the people involved, the injuries or the loss, and the reports and photos the family has. If it would help to talk through these questions, you can request a case evaluation with Water Safety Justice Group. For a drowning outside Delaware, the rules differ, as our California drowning law page shows for that one state.