Michigan Drowning Accident Lawyer

When a Family Asks Whether Someone Failed to Take Care

Nothing about the law can undo what happened to your family. What it can do is give a family a way to ask whether someone who owed care failed to give it.

In Michigan, most drowning claims are negligence claims. They ask four things: whether someone owed a duty of care, whether that duty was breached, whether the breach caused the harm, and what harm resulted. Premises liability is the name for a claim against the person who owns or controls a property, such as a pool, based on the condition or management of that place. The duty a Michigan owner or operator owes depends on who the visitor was and why they were there, under Michigan's current law. If someone was supposed to be watching the water, such as a lifeguard, a pool operator or a caregiver, a negligent supervision claim asks whether that person failed to watch with reasonable care.

Two terms matter for injured survivors. A nonfatal drowning means a person went through a drowning event and survived. A hypoxic or anoxic brain injury means harm to the brain from too little oxygen, or none at all. When a person dies, a wrongful death claim is the legal action brought because of that death.

A drowning does not, on its own, prove that anyone was careless. For a family, the question is not only what happened but whether the facts show a duty, a breach and causation. Families often start by writing down who was in charge of the water and who was watching.

Where It Happened Can Decide Who Owed Care

The place where a drowning happened often decides who may have owed care, and which Michigan rules come into play.

Hotel, resort and apartment pools are usually controlled by a business or a landlord. A claim there is typically a premises-liability claim about the pool's condition, its barriers, its drains and its supervision.

Private home pools raise the same kind of questions about the owner's duty, and the answer depends on the person's reason for being on the property and on Michigan's current law.

Water parks add an operator who runs attractions, hires staff and decides how swimmers are watched. Supervision records and equipment often become central.

Lakes, beaches and open land bring in section 324.73301 of the Michigan Compiled Laws, Michigan's recreational-use statute. It says that a cause of action does not arise against an owner, tenant or lessee for injuries to a person who is on the land "without paying to the owner, tenant, or lessee of the land a valuable consideration" for fishing, camping, sightseeing "or any other outdoor recreational use," with or without permission, "unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee." Whether a person paid, and what they were doing there, can matter a great deal.

Boating drownings can involve rules beyond the ones on this page. They usually center on how the boat was operated and equipped.

The details worth noting are who owned or ran the place, whether any fee was paid, and why the person was there. Those details shape which rules an attorney would look at first.

Who May Be Responsible Under Michigan Law

Families often ask who, if anyone, the law looks to after a drowning. The answer comes in categories, not names, and it matters because a claim can only proceed against someone who actually owed care.

A property owner or operator may owe a duty to lawful visitors under Michigan premises-liability law. A lifeguard service or pool-management company may be asked whether its supervision met the care the law requires. A boat operator owes general care in how the boat is run.

If a piece of equipment, such as a drain cover or a flotation device, failed, the maker or seller may face a products liability action, which claims the product was defective and caused harm. Michigan sets special rules for these actions, including the damages limit discussed further down.

A governmental agency can also be involved. Section 691.1404 of the Michigan Compiled Laws covers injuries "by reason of any defective highway." It requires the injured person to serve notice on the agency within 120 days, giving the exact location and nature of the defect, the injury and known witnesses. For a child under 18, the notice is due within 180 days and may be filed by a parent, attorney, next friend or guardian; for someone physically or mentally unable, within 180 days after the incapacity ends. The official text also carries a constitutionality note citing Reich v State Highway Department (1972), which held the notice requirement violated equal protection. In plain terms, a court once found it unfair to require this notice for claims against government bodies but not private parties; how that note bears on a claim today is a question for an attorney. Other claims against public bodies may be shaped by rules that depend on Michigan's current law.

Listing every person or business that had a role gives an attorney a starting point for reviewing which of them may have owed care.

Filing Deadlines That Apply to Michigan Drowning Claims

A statute of limitations is the law's deadline for starting a lawsuit. For a family still in shock, a deadline can feel beside the point. It is fixed by statute all the same, and it does not pause for grief.

Section 600.5805 of the Michigan Compiled Laws states that, "except as otherwise provided in this section, the period of limitations is 3 years after the time of the death or injury for all actions to recover damages for the death of a person or for injury to a person." That same three years covers both an injury claim and a wrongful-death claim, counted from the death or the injury.

The same section states that "the period of limitations is 3 years for a products liability action." It adds that for a product in use for at least 10 years, the plaintiff must prove a prima facie case "without the benefit of any presumption." Other parts of Michigan law, under its current text, can also affect timing in a product case.

Children get extra time. Section 600.5851 of the Michigan Compiled Laws says that if the person entitled to bring the action is under 18, or insane, when the claim accrues, that person "shall have 1 year after the disability is removed through death or otherwise" to bring it, "although the period of limitations has run." The section lists its own exceptions in subsections (7) and (8). For a child, the disability is usually removed at 18.

How these periods line up with one family's dates depends on the facts. The date of the incident, the date of any death and a child's date of birth are the dates an attorney would use to work out the timing.

When Someone Says the Swimmer or a Parent Shared the Blame

Hearing that a child, a parent or the person who drowned shared some blame can be one of the hardest parts of this. Knowing the rule can at least make that argument less mysterious.

Comparative fault means a court weighs each person's share of fault and adjusts damages to match. Section 600.2959 of the Michigan Compiled Laws says the court "shall reduce the damages by the percentage of comparative fault of the person upon whose injury or death the damages are based." If that person's fault "is greater than the aggregate fault of the other person or persons, whether or not parties to the action," the court reduces economic damages and "noneconomic damages shall not be awarded." The current version applies to actions arising on or after March 28, 2013.

Section 600.6304 of the Michigan Compiled Laws has the jury find each plaintiff's total damages and the percentage of fault of everyone who contributed, including nonparties. It states that liability "is several only and not joint," so a person generally pays no more than their own share, subject to exceptions the section names, including defendants jointly liable under section 6312.

In a drowning, fault arguments may point at an owner, an operator, a supervising adult or the swimmer. How fault is divided depends on the facts. If an insurer or property owner has already suggested your family was at fault, that is a point an attorney can weigh against the evidence before anyone accepts it. Other states set this rule differently, as the Colorado drowning claims page and the Georgia drowning claims page show.

Wrongful Death Claims After a Michigan Drowning

This section is for families who have lost someone. It explains who acts in court for the person who died.

A wrongful death action in Michigan is the claim the law allows when a death is caused by another's wrongful act, neglect or fault. Section 600.2922 of the Michigan Compiled Laws makes the party who would have been liable had the person lived liable "notwithstanding the death."

The statute states that "every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased." The personal representative is the person appointed to act for the estate. Within 30 days after the case begins, that person must serve the complaint and notice on those who may be entitled to damages.

Those people are limited, subject to sections 700.2802 to 700.2805 of the Michigan Compiled Laws, to those who suffer damages and survive the deceased: the spouse, children, descendants, parents, grandparents, brothers and sisters; if none survive, those who would inherit under intestate succession; and the children of the deceased's spouse.

The three-year period in section 600.5805 applies, as described above. Whether the claim succeeds turns on duty, breach, causation and damages. If you have lost someone and are unsure who would act for the estate, a conversation about a wrongful death claim can cover the people involved and how the process unfolds.

Records That Help a Family Learn What Happened

When a family is grieving or keeping watch at a hospital, papers and recordings are the last thing on anyone's mind. They are still what a Michigan court relies on to decide duty, breach and causation. If a video is recorded over or a log is discarded, the question of who was watching, or whether a drain or gate was in order, may have no clear answer later.

If someone in your family was hurt or died, the records that usually matter include:

• incident or accident reports made with the property or operator;
• pool inspection and maintenance logs and water-quality records;
• surveillance or security video from the facility;
• lifeguard training records, certifications and staffing schedules;
• medical records describing the nonfatal drowning or brain injury and the care given;
• the names and contact information of witnesses;
• equipment involved, such as drain covers, flotation devices, fencing and signs;
• for a boating accident, the vessel, its registration and any official report of the accident.

Families often keep photos, receipts and their own notes of what they saw and when. Many of the other records are held by the owner or operator, and getting them can require formal legal process, which is one of the things an attorney can help with.

What a Family's Losses Can Mean Under Michigan Damages Law

No list of legal categories comes close to what a family has lost. The law's categories are simply how a court names harm.

The losses a court recognizes come in two kinds. Economic damages cover the money a family has lost or will lose, such as medical bills, lost income and future care. Noneconomic damages cover what is not money, such as pain and suffering and the loss of a loved one's companionship. What a court may allow depends on the injury, the proof of causation and the division of fault under section 600.2959. In practice, if the person who drowned is found more at fault than everyone else combined, a family's claim could be left with reduced economic damages and nothing for grief, pain or lost companionship.

Product cases carry a separate limit. Section 600.2946a of the Michigan Compiled Laws says that in a product liability action, noneconomic damages "shall not exceed $280,000.00," or $500,000.00 if the defect caused death or permanent loss of a vital bodily function. Those are base figures: the state treasurer adjusts them each year to match section 1483. The jury is not told the limit, and the court adjusts the award afterward. The higher limit does not apply to a defendant whose gross negligence caused the death or loss, as the trier of fact finds by a preponderance of the evidence.

That limit is written for product liability actions. Whether it touches a particular drowning claim depends on the legal theory and the facts. Medical bills, pay records and notes on how life has changed give an attorney a basis to discuss which categories may apply. Other states set their own limits, as the California drowning claims page describes for California.