Indiana Drowning Accident Lawyer

What Indiana Law Asks After a Drowning or Near-Drowning

Nothing about the law changes what a family has lost. The legal questions matter only because they touch that loss.

Two theories usually sit at the heart of a pool or waterway case. Premises liability is the law about what an owner or operator owes people on the property, such as a hotel to its guests or a landlord to tenants using a complex pool. Negligent supervision is a claim that someone responsible for watching swimmers, often a lifeguard service or facility staff, did not supervise with the care the law expects. For a family, either theory comes down to four things that would have to be shown: that a duty was owed, that it was breached, that the breach caused the harm, and what the harm cost.

What an Indiana owner or operator must do for a particular visitor depends on Indiana's current law and on that person's status on the property; our guide to pool owner liability explains the broader concepts. A drowning, on its own, does not prove that any owner, operator, lifeguard or parent was careless.

The statutes on deadlines, fault and wrongful death sit in Title 34 of the Indiana Code, published by the Indiana General Assembly. What is at stake early is which of those rules applies, and that turns on where it happened, who controlled the water, and whether a public body was involved. For a family looking for a drowning accident lawyer Indiana families can talk with, those three answers are often the first things worth writing down.

Where Indiana Drowning Accidents Happen and Who May Be Involved

The setting shapes nearly everything that follows. The cases this site covers arise at hotel and resort pools, apartment complex pools, water parks, private backyard pools, lakes and other open water, and in boating accidents.

Each setting points toward different parties who may have owed a duty:

• A pool owner, such as a hotel company, a homeowner or an apartment owner.
• A pool operator or property manager hired to run the pool, set its rules and maintain it.
• A lifeguard service under contract to staff a pool or a beach.
• An equipment manufacturer, where a drain, a gate latch, a life jacket or a boat part is part of the story.

Hotel cases raise their own questions about guest status and drain-cover rules, described on our page on hotel pool drowning cases. Naming a type of party here says nothing about whether any one of them did anything wrong.

What is at stake in identifying the owner is the timeline itself. When the pool or beach belonged to the state or a local government, such as a city pool or a state park beach, Indiana's notice rules for claims against government apply, and their periods are much shorter than two years. Records that usually help show who controlled the water include any incident report, photos and video, a lease or rental agreement, a hotel receipt, and the names of people who were there.

Filing Deadlines and Notice Requirements Under Indiana Law

A statute of limitations is the time limit for starting a lawsuit; once it runs, a court can refuse to hear the claim.

For an injury, section 34-11-2-4 of the Indiana Code provides that an action for "injury to person or character" "must be commenced within two (2) years after the cause of action accrues." For a near-drowning survivor, including someone with a lasting brain injury, this is the general period for their own claim. Section 34-11-6-1 states that "a person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed."

For a death, section 34-23-1-1 provides that the action "shall be commenced by the personal representative of the decedent within two (2) years." Section 34-23-2-1 creates a separate action for the injury or death of a child, explained below.

Claims involving government move faster. Under section 34-13-3-6, except as sections 7 and 9 of that chapter provide, a claim against the state is barred unless notice is filed with the attorney general or the state agency involved within 270 days after the loss occurs; filing with the wrong agency does not bar the claim if the claimant reasonably tried to find and serve the right one. Under section 34-13-3-8, except as section 9 and subsection (b) provide, a claim against a political subdivision is barred unless notice is filed within 180 days after the loss with its governing body and, while that commission exists, the Indiana political subdivision risk management commission; missing the commission is excused if the subdivision was not a member of its fund when the act occurred.

Section 34-13-3-9 provides that if a person is incapacitated and cannot give notice, the claim is barred unless notice is filed within 180 days after the incapacity is removed. Section 34-13-3-10 requires a short, plain statement of the facts, including the circumstances, the extent of the loss, the time and place, the names of persons involved if known, the amount of damages sought and the claimant's residence. Section 34-13-3-12 requires the notice to be in writing and delivered in person or by registered or certified mail, and section 34-13-3-13 provides that a person may not sue a governmental entity "unless the person's claim has been denied in whole or in part."

For a grieving family, these clocks keep running while no one is thinking about paperwork, and when a claim accrues can itself turn on the facts. A family may weigh noting the date of the loss, whether a public body owned the site, and whether the injured person can act for themselves; those are the points a conversation with an attorney can use to sort out which clock applies.

How Indiana's Comparative Fault Rule Applies to Your Claim

Families often hear early that the injured person, or a supervising adult, was partly to blame. Indiana answers that through comparative fault, which divides responsibility among everyone whose conduct contributed. It lives in chapter 2 of article 51 of title 34 of the Indiana Code, which governs actions based on fault for injury or death, except medical malpractice actions against qualified health care providers and actions that accrued before January 1, 1985.

Section 34-51-2-5 provides that contributory fault chargeable to the claimant "diminishes proportionately the amount awarded as compensatory damages" but does not bar recovery except as section 6 provides. Section 34-51-2-6 states that the claimant "is barred from recovery if the claimant's contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant's damages," whether there is one defendant or several.

In plain words, if a jury found the injured person partly at fault, any award would shrink by that share; if that share were greater than everyone else's combined, the claim would be barred. Whether any fault is assigned depends on the evidence.

Section 34-51-2-2 provides that this chapter "does not apply in any manner to tort claims against governmental entities or public employees" under the chapter on claims against government. A family whose loss happened at a city pool or a state beach is dealing with different rules on fault, and on how such claims are valued, under Indiana's current law for those claims. If a blame argument has already been raised, or a public body is involved, those are questions worth bringing to a conversation with an attorney, along with any limits Indiana places on what can be recovered from a government defendant.

When a Family Has Lost Someone: Indiana's Wrongful Death Claims

This section is for families who have lost someone. It is written knowing that no statute can measure that.

Under section 34-23-1-1 of the Indiana Code, when a death is caused by another's wrongful act or omission, the personal representative of the person who died may maintain the action if the person could have sued for the same act had they lived. The damages are as the court or jury determines, "including, but not limited to, reasonable medical, hospital, funeral and burial expenses, and lost earnings." Medical, funeral and burial amounts go to the estate; the remainder goes to the widow or widower and dependent children, or dependent next of kin. When none survive, the damages go to those who provided hospital, medical and funeral services and to the personal representative for administration costs, including a reasonable attorney's fee.

A child's death is handled separately. Section 34-23-2-1 defines a child as an unmarried individual without dependents who is under 20, or under 23 and enrolled in a postsecondary or career and technical education program. The action may be maintained by both parents jointly, or by either one naming the other as a codefendant; after a divorce, by the parent awarded custody; or by a guardian. Damages include the loss of the child's services, love and companionship, and expenses for health care, the funeral and burial, counseling for a surviving parent or minor sibling, the child's uninsured debts, and administering the estate. They cover a period ending at the child's 20th or 23rd birthday or the last surviving parent's death, whichever comes first, with companionship damages running to the last surviving parent's death. A parent or grandparent who abandoned the child is not entitled to recovery.

What is at stake is who may bring the claim. A family may weigh whether a personal representative has been named, whether the person who died fits the statute's definition of a child, and how custody was arranged; those answers point to which action fits. Either way, a claim succeeds only if the evidence shows duty, breach, causation and damages.

If a Drain, Latch, Life Jacket or Boat Part Failed

Sometimes the questions point past the property to the equipment. Indiana's product statute is section 34-20-3-1 of the Indiana Code, covering product liability actions in negligence or in strict liability in tort. For a family, strict liability means a maker or seller may be responsible for a defective product without anyone having to prove carelessness, but the family would still have to show the defect and that it caused the harm.

Except as section 2 of that chapter provides, the action must be commenced within two years after the cause of action accrues, or within ten years after the product was delivered to the initial user or consumer. If the cause of action accrues at least eight but less than ten years after that delivery, the action may be commenced within two years after it accrues. The ten-year limit is a statute of repose, measured from delivery, not from the injury, so it can close a claim even when an injury is recent.

The section applies "regardless of minority or legal disability," notwithstanding section 34-11-6-1, so the disability exception above does not extend a product claim. An accident does not prove a defect, and if the part is discarded or repaired, the evidence that could show one may be gone. Families who suspect equipment often keep the product or part, purchase records, and incident or inspection reports; an attorney can review them to judge whether a defect question exists and how the product's age bears on timing.

The Records That Can Show What Happened

Evidence is how a family learns what actually happened, apart from any lawsuit. It is also what decides whether duty, breach, causation and damages can be shown, and some of it, such as surveillance footage or maintenance logs, sits with others and may not be kept forever.

The records a family or attorney typically looks for are:

• Incident reports, 911 records, and inspection or maintenance logs for the pool, the waterway or the vessel.
• Medical records. In a nonfatal drowning, meaning a person survived being submerged, they may document a hypoxic or anoxic brain injury, which is harm to the brain from too little oxygen or none at all.
• Photos and video of the scene, including surveillance footage.
• Names and contact information of witnesses.
• Lifeguard certifications and staffing records, where a lifeguard was on duty.

A family at a bedside may be gathering discharge papers and therapy notes; a family after a death may be gathering a coroner's or police report. If a public body was involved, these details also feed the notice statement Indiana requires. None of this has to be done perfectly or all at once; a text with a time stamp, a photo of the gate or a hotel confirmation often fills in more than expected, and an attorney can identify which records held by others may be worth requesting.

Questions Worth Asking Before You Speak With an Indiana Drowning Lawyer

A few questions help bring the picture into focus. Was the accident at a public or government-owned facility? Was a product involved? Was a child injured or killed? When did it happen, and is the person who was hurt able to act for themselves?

These answers decide which Indiana Code sections govern. A government facility brings in the 180-day or 270-day notice rules and takes the claim outside the comparative-fault chapter. A product brings in the two-year and ten-year limits of section 34-20-3-1. A child's death brings in the parents' separate action. A person with a legal disability may fall under section 34-11-6-1.

Whether you are looking for an Indiana drowning lawyer, an Indiana pool drowning lawyer, or someone to talk through what happened, writing these answers down may help. If it would help to walk through them, you can request a case evaluation, a conversation with our attorney about where it happened, who controlled the water, the dates and the records you have. Other states handle these questions differently, as the California drowning claims page shows; this page covers Indiana only.