Maryland Drowning Accident Lawyer

How Maryland Law Decides Whether a Family Has a Drowning Claim

The law is only one small part of what a family carries after a drowning. It still helps to know its shape.

Most Maryland drowning claims rest on negligence, which asks four questions: whether someone owed a duty of care, whether that duty was breached, whether the breach caused the harm, and what losses followed. Premises liability is the name for negligence claims against whoever owns or controls a property, such as a pool owner or operator; the question is whether that person used reasonable care toward people on the property. Negligent supervision applies where a lifeguard, a pool attendant or another supervisor took on a duty to watch swimmers, and asks whether that duty was carried out with reasonable care. A drowning, on its own, does not prove that an owner, an operator, a lifeguard or a parent was careless. Whether any duty was breached depends on the facts.

One Maryland rule shapes every one of these cases. In Coleman v. Soccer Association of Columbia, filed July 9, 2013, the Court of Appeals of Maryland addressed the doctrine of contributory negligence, explained in its own section below. The short version is hard but simple: in Maryland, any fault attributed to the injured person may end a claim entirely, which is why the details of how the accident happened carry so much weight.

Why the Place Your Loved One Was Swimming Changes the Legal Questions

The place where a drowning happened often decides who owed a duty and what kind of duty it was.

• Hotel, resort and vacation-rental pools are run by commercial operators. The questions usually involve how the operator kept the pool, its gates, its drains and its rescue equipment, and whether any supervision was offered.
• Apartment and condominium pools add parties: a property manager, an owner or a homeowners' association may each have had some part in running the pool.
• Private residential pools raise questions about what a homeowner owed guests and, when a child is involved, about fencing, gates and barriers. How Maryland law treats a child who wanders into a pool depends on the facts and on the state's current law.
• Water parks bring commercial operators, attraction design and lifeguard staffing into the picture.
• Boating drownings bring their own questions about the vessel, its operator and the safety equipment aboard.

Open water is different. Under section 5-1103 of the Natural Resources Article of the Maryland Code, "an owner of land owes no duty of care to keep the premises safe for entry or use by others for any recreational or educational purpose, or to give any warning of a dangerous condition." This rule applies except as section 5-1106 provides. Section 5-1106 of the Natural Resources Article says the limit does not apply to liability for a "willful or malicious failure to guard or warn" against a dangerous condition, or to an injury where the owner charges the person for recreational or educational use, except as section 5-1109(a)(2) provides. If the land is leased to the State or one of its political subdivisions, the lease payment is not a charge. For a family, this means a free swim at private shoreline can be treated very differently from a paid admission.

Whose Role Matters to Your Family's Claim After a Pool or Water Accident

A single drowning can involve several parties, and the legal theory follows each one's role.

Property owners are the starting point in many premises-liability claims. Their duty is to use reasonable care toward people they allow onto the property. Whether that duty can be handed off to someone else depends on Maryland's current law and the facts. For a family, the owner's identity is often the first fact that shapes the rest of the claim.

Pool management companies and lifeguard services can be separate from the owner, where a hotel or an association contracts out operations or staffing. For a family, this can mean more than one party's duties are in question.

Manufacturers or installers can come into a case where a drain cover, a gate latch, a fence or another pool feature is said to have played a part. That product-liability theory asks whether the product was defective and whether the defect caused the harm; a failed part does not prove a defect by itself. For a family, preserving the equipment itself may matter to whether this theory can be tested.

Local governments add an early step. Under section 5-304 of the Courts and Judicial Proceedings Article of the Maryland Code, part of the Local Government Tort Claims Act, a claim for unliquidated damages against a local government or its employees generally requires written notice within one year after the injury, with exceptions covered below. For a family whose loss happened at a public pool or a public beach, this notice step can matter as much as the lawsuit deadline itself. The site's drowning accident lawyer overview describes these theories in more depth.

Filing Deadlines Under Maryland Law — and What They Mean for Your Family

Deadlines leave the least room for error of any part of the law.

A statute of limitations is the time limit for filing a lawsuit. Section 5-101 of the Courts and Judicial Proceedings Article of the Maryland Code provides: "A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced." Wrongful death has its own period, covered below.

When a cause of action accrues in favor of a minor, section 5-201 of the Courts and Judicial Proceedings Article applies. A minor or a mental incompetent "shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed." This covers claims under Subtitle 1 of that title or under the wrongful-death subtitle. It does not apply if the limitation period has more than three years to run when the disability is removed. Imprisonment, absence from the State and marriage do not extend the period.

Under section 5-304, the local government notice must be in writing and state the time, place and cause of the injury. The claimant or the claimant's representative must give it in person, or by certified mail with return receipt requested and a United States Postal Service postmark. If the local government is a county, the notice generally goes to the county commissioners or county council. The section does not apply to certain nonprofit corporations listed in section 5-301(d), or to actions brought under section 5-117. It also does not apply if, within one year after the injury, the local government had actual or constructive notice of the injury or of the defect or circumstances that caused it. Even without notice, a court may hear the suit "upon motion and for good cause shown," unless the defendant shows that its defense was prejudiced. Claims against the State of Maryland itself are a different matter, and their rules depend on the state's current law.

Which of these periods applies, and when each one started, turns on the facts of the case. If that is the question in front of you, our attorney can talk it through with you; you can request a case evaluation.

Maryland's Contributory Negligence Rule and What It Means When a Child or Adult Is Hurt

Families often ask whether it matters that their loved one broke a pool rule, swam alone or went past a marker. In Maryland, that question carries unusual weight.

In Coleman v. Soccer Association of Columbia, the Court of Appeals of Maryland described the rule this way: a plaintiff whose negligence contributes proximately to the injury "is barred from all recovery, regardless of the quantum of a defendant's primary" negligence. The Court said it had the authority to change this common-law rule but chose to leave any change to the General Assembly. So it is a rule made by court decision, not a statute, and it remains Maryland's rule unless the legislature acts.

Under comparative fault, which the Coleman opinion notes a number of other states adopted, the injured person's share of fault reduces recovery rather than wiping out the claim. Under Maryland's rule, a finding that the injured person contributed to the harm may end the claim.

In a drowning case, this puts close attention on the facts on both sides. Was the pool supervised? Were the rules posted and visible? Were the fence and the gate working? Was the drain covered? What did the injured person do, and what did they know? Defenses based on a child's conduct, or a parent's, depend on the facts and on Maryland's current law. This can be painful to sit with, and it helps to understand it fully before drawing any conclusion about blame.

Damages Maryland Law May Allow — and the Cap on Noneconomic Damages

Talk of damages can feel cold beside what has been lost, but the law sorts losses into categories.

Economic damages are losses that can be counted, such as medical expenses, lost earnings and the cost of future care. Section 11-108 of the Courts and Judicial Proceedings Article of the Maryland Code defines noneconomic damages in a personal-injury action as "pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury." Punitive damages are not included.

Section 11-108 also caps noneconomic damages. For personal-injury causes of action arising on or after July 1, 1986, the cap is $350,000. For personal-injury or wrongful-death causes arising on or after October 1, 1994, the cap is $500,000, except as paragraph (3)(ii) provides. That limit "shall increase by $15,000 on October 1 of each year beginning on October 1, 1995." Each increased amount applies to causes of action arising between October 1 of that year and September 30 of the next, so the figure for a given case depends on when it arose. The cap does not limit economic losses in the same way.

A nonfatal drowning is a submersion in water that the person survives. A hypoxic or anoxic brain injury is harm to the brain from too little oxygen, or none, during that event. When a family is living with such an injury, the medical records and the long-term care plan are usually central to what the law considers, and what any claim includes depends on the injury, the treatment and the losses, never on a formula.

What Records Can Show What Happened to Your Loved One

Evidence is how a claim answers the questions of duty, breach, causation and damages. Records that often matter include:

• incident or accident reports prepared by the property or the operator, which can show the owner's own account of events
• pool inspection records, maintenance logs and any health department inspection reports, which bear on whether the pool was kept with reasonable care
• lifeguard certifications, staffing schedules and training records, which bear on whether a supervision duty was carried out
• surveillance footage, bystander video and photographs of the pool, the drain, the gate and the fence, which can show conditions at the time
• the posted pool rules and signs, and the condition of any barrier, which can matter under the contributory negligence rule
• medical records describing the injury, the treatment and the outlook, which shape what damages are considered
• the names and contact details of witnesses, whose accounts can fill gaps in the records

Some of these records are held by the family, and others by the property owner, the operator or a public agency.

Wrongful Death After a Maryland Drowning — What the Law Provides for Families

Wrongful death is a claim for the family's own loss when a death is caused by another person's wrongful act. Under section 3-904 of the Courts and Judicial Proceedings Article of the Maryland Code, such an action is generally "for the benefit of the wife, husband, parent, and child of the deceased person." A parent may not benefit in certain cases involving crimes listed in the Criminal Law Article, or where the parent caused the child's death. Whether other relatives may benefit depends on the statute's current text. Under section 3-904(g), the action generally "shall be filed within three years after the death of the injured person," with separate rules for an occupational disease.

Section 3-904 provides that wrongful-death damages are not limited by the "pecuniary loss" rule. Section 11-108 defines noneconomic damages in a wrongful-death action to include "mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education." The cap described above applies, and the amount recovered is divided among the beneficiaries as the verdict directs. A survival action is a separate claim brought for the person who died, for losses they suffered before death; how it works depends on Maryland's current law. The site's Delaware drowning accident lawyer and Georgia drowning accident lawyer pages show how neighboring states handle these questions.