Hawaii Drowning Accident Lawyer

Hawaii's Legal Framework for Drowning and Near-Drowning Claims

Nothing about the law can undo what happened to your family. What the law can do is set out the questions that decide whether anyone else may be held responsible, and Hawaii answers some of those questions in its own way.

Most drowning claims rest on negligence, which means a failure to use reasonable care. For a family, a negligence claim comes down to four questions. Did someone owe your loved one reasonable care (duty)? Did they fall short of it (breach)? Did that shortfall cause the harm (causation)? What losses followed (damages)? Whether each is answered yes depends on the facts.

For pools, hotels, resorts and many beachfront properties, negligence usually takes the form of premises liability, the responsibility of a person who owns or controls property for unsafe conditions on it. A related theory, negligent supervision, is a claim that someone responsible for watching swimmers, or for staffing and training the people who do, failed to use reasonable care.

Hawaii also has a written rule for shared fault. Section 663-31 of the Hawaii Revised Statutes provides: "Contributory negligence shall not bar recovery in any action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made." This is called comparative negligence: fault is weighed in shares.

Hawaii also limits one kind of damages. Section 663-8.7 of the Hawaii Revised Statutes states that damages for pain and suffering "shall be limited to a maximum award of $375,000; provided that this limitation shall not apply to tort actions enumerated in section 663-10.9(2)." Whether that exception reaches a given drowning case depends on which actions section 663-10.9(2) of the Hawaii Revised Statutes lists and on the facts.

What this means for you: these rules can decide whether a claim exists at all, how much any share of fault reduces it, and whether pain-and-suffering damages are limited. Families often weigh what they know about each of the four questions, and a conversation with an attorney can help sort out how these rules fit what happened.

Where Drowning Accidents Happen in Hawaii — and Why the Setting Matters

The place where a drowning happened often decides who owed a duty of care and how much care the law asked of them. For a family, that can mean the difference between a claim against a hotel, an apartment owner, a park operator or a government.

At a hotel or resort pool, the questions usually involve the property's duty to keep the pool area reasonably safe, the condition of gates, drains and safety equipment, and whether lifeguards were posted and how they were trained. Those questions are explored further on the page about hotel pool drowning claims. At an apartment complex or a private home, the focus is often on the owner's duty to fence, warn about hazards and maintain the pool. At a water park, the operator's care for its attractions and its supervision of swimmers tends to be central.

Ocean beaches, bays and other open water raise different questions. A beach may sit on land held by the State, a county or a private owner, and the owner's identity shapes both the duty and the deadlines. Boating drownings form their own category, where questions about the vessel, its operator and other law can arise alongside Hawaii's rules.

Hawaii's recreational-use law matters most in open-water settings. Under section 520-4 of the Hawaii Revised Statutes, except as section 520-5 specifically recognizes or provides, an owner of land "who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes" does not extend any assurance that the premises are safe, does not give the person the legal status of an invitee or licensee owed a duty of care, and does not assume responsibility or liability for injury caused by the acts or omissions of those persons, or for injury to people who enter in response to an injured recreational user. The words "without charge" carry weight: a paid hotel stay or park admission may be treated differently from free access to land, and whether the rule applies depends on the facts.

If you are piecing together what happened, two early questions are who owned or ran the place and whether any fee was paid to be there. Receipts, booking records and admission tickets can help answer them.

Who May Be Responsible for Your Injury or Loss

When a family begins asking who may be responsible, the honest answer is often more than one party. Because section 663-31 compares the injured person's negligence with the combined negligence of those sued, leaving a responsible party out of the picture can change how fault is weighed.

Property owners and operators owe a duty to keep premises reasonably safe and to warn of hazards they know about. A company that employs lifeguards may face questions about training, staffing and supervision, the negligent supervision theory described above. A manufacturer or supplier of a drain cover, a flotation device or other pool equipment may face a product-liability claim, which asks whether the product was defective and whether that defect caused the harm. A drowning, by itself, does not show that any product was defective or that anyone was careless.

Government owners follow separate rules. Under section 662-4 of the Hawaii Revised Statutes, a tort claim against the State "shall be forever barred unless action is begun within two years after the claim accrues," except that medical tort claims follow section 657-7.3. Counties are handled differently. Under section 46-72 of the Hawaii Revised Statutes, before a county is liable for injuries received in its public places or caused by the negligence of a county official or employee, the injured person, or someone on the person's behalf, must give notice within two years after the injuries accrued to the individual identified in the respective county's charter, or if none is specified, the chairperson of the council of the county or the clerk of the county in which the injuries occurred. Case notes on that official page record claims held time-barred where no written notice was given.

If you are trying to work out who was involved, the records that usually matter include incident reports, pool inspection and maintenance logs, lifeguard staffing records, photos, video and the names of people who saw what happened.

Filing Deadlines That Affect a Hawaii Drowning Claim

A statute of limitations is the time limit for starting a lawsuit. Thinking about dates while grieving or caring for an injured child is hard, so the Hawaii rules are set out here one at a time, exactly as the statutes state them.

For personal injury, section 657-7 of the Hawaii Revised Statutes provides that actions for injury to persons "shall be instituted within two years after the cause of action accrued, and not after, except as provided in section 657-13."

For a death, section 663-3 of the Hawaii Revised Statutes provides that an action "shall be commenced within two years from the date of death of the injured person, except as otherwise provided."

For children, section 657-13 of the Hawaii Revised Statutes provides that if a person entitled to bring an action was within the age of eighteen years when the cause of action accrued, the person may bring it within the time the law allows after the disability is removed, or at any time while it exists. The section excepts actions against the sheriff, chief of police or other officers. Case notes on that official page state that it applies to the period in section 663-3 and that it is not applicable to actions against the State.

Claims against the State follow the two-year rule of section 662-4, and claims against a county require the notice under section 46-72, both described above. The notice to a county is a separate step from filing a lawsuit.

Which of these periods applies, and when it began, can turn on who owned the place and who was hurt. If it would help to talk through which rule may fit your family's situation, you may want to consider a conversation with our attorney.

What Shapes the Strength of a Hawaii Drowning Case

The question beneath much of a family's worry is simple: what actually has to be shown? It comes back to the four negligence questions described above, applied to the setting.

A pool owner's duty may concern fencing, gates and maintenance. A lifeguard's role may concern watching swimmers and responding. An operator's duty may concern warnings about known hazards. An accident, even a tragic one, does not by itself prove negligence or a defect. What is at stake is whether the evidence links a specific failure to the harm; without that link, a claim may not succeed however serious the loss.

Near-drownings need their own attention. A nonfatal drowning means a person survived after being submerged. Some survivors suffer a hypoxic or anoxic brain injury, harm to the brain from too little oxygen or none at all, and the full effects may not be clear right away. A surviving person's claim is a personal-injury claim, not a wrongful-death claim.

Shared fault follows section 663-31. If an injured person, or a parent in a claim for a child, is found partly at fault, damages are reduced by that share. Under the statute's judgment rule, if that share is greater than the negligence of those sued, the court enters judgment for the defendant. For a family, that means how events are described and documented can affect the outcome.

If you were hurt, or your child was, the records that usually matter include incident and police reports, pool inspection and maintenance records, lifeguard training and staffing records, photos and surveillance video, medical records describing the injury, and witnesses' names and contact details. Families often weigh which of these they already hold and which others control, a question a conversation with an attorney can help sort out.

What a Wrongful-Death Claim Covers Under Hawaii Law

For a family that has lost someone, this is often the hardest part of the page to read, and it is fine to come back to it later.

If your loved one died because of someone else's wrongful act or neglect, Hawaii lets the family bring a wrongful-death claim. That claim stands apart from the personal-injury claim your loved one could have brought had they lived. Section 663-3 provides that when a death "is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death." The action is maintained on behalf of the persons named in subsection (b), and it must be commenced within two years from the date of death, except as otherwise provided.

What your family may recover depends on the full text of section 663-3 and on the facts. The section 663-8.7 limit on pain and suffering, with its exception for the actions listed in section 663-10.9(2), may also affect how much a court can award your family. The comparative-negligence rule in section 663-31 expressly covers negligence "resulting in death," so any share of fault assigned to the person who died can reduce damages.

Who may answer for a death depends on who owed a duty and what happened: a property owner, an operator, a lifeguard's employer, an equipment maker, or the State or a county. Each family's facts differ, and other states' rules, such as those for California drowning claims, do not decide a Hawaii case. Questions a family may weigh include who will act as legal representative, which relatives fall within subsection (b), and whether a government owner is involved; a conversation with an attorney can help sort these out.