North Dakota Drowning Accident Lawyer

Wondering Whether Someone Was Careless? What a North Dakota Claim Has to Show

A personal-injury claim built on carelessness is usually described as having four parts: a duty owed to the person who was hurt, a breach of that duty, causation (the failure actually led to the harm) and damages (the real losses that followed). Section 32-03.2-01 of the North Dakota Century Code defines "fault" to include acts or omissions "that are in any measure negligent or reckless." It also states that "Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault" (Chapter 32-03.2).

In a drowning case, the duty question usually turns on the setting. Premises liability is the legal obligation a property owner or operator may owe to people who come onto the property, such as guests at a hotel pool or tenants at an apartment pool. Negligent supervision is a failure to provide the level of oversight the law may require, for example where children are swimming. Where a lifeguard is on duty, the law may ask what a person in that role reasonably should have watched for and done.

A drowning alone does not prove anyone was careless. For a family, this means that if one of the four parts cannot be shown, the claim may not succeed even when the loss is devastating. An attorney can help sort out which of these questions matter in the family's situation.

Pool, Lake or Boat: Where the Accident Happened and Who May Be Responsible

Drowning and near-drowning accidents in North Dakota can happen at hotel and resort pools, apartment complex pools, private residential pools, public and private lakes, water parks, rivers and recreational waterways, and in boating accidents. Each setting raises the same question: who controlled the water, and what did the law ask of them?

The law looks at broad categories rather than names: the property owner, the company that operated or managed it, the employer of any lifeguards or supervising staff, and, where a product failure is involved, the equipment's manufacturer or seller. Being in a category says nothing about whether anyone did anything wrong.

The relationship between that party and the person who was hurt also matters. A hotel guest, a tenant, a party guest at a private home and someone fishing on open land may stand in very different legal positions, and whether a fee was paid for entry can change what duty existed. The place where the accident happened can decide which rules apply, including the recreational-use rule and the government notice rules below.

Boating accidents are a setting of their own. This page does not address North Dakota's boating statutes or any federal role on the water; for a boat-related drowning, the questions on this page about duty, fault, products and deadlines still apply, and a boat component may raise a product question discussed below.

Was the Water on Open Land? How North Dakota's Recreational-Use Rule Affects a Claim

Section 53-08-02 of the North Dakota Century Code says that, subject to section 53-08-05, "an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes." It also says the owner owes no duty "to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes" (Chapter 53-08). The section does not apply to two groups: a person who enters land to provide goods or services at the owner's request and under the owner's direction or control, and "an owner engaged in a for-profit business venture that directly or indirectly invites members of the public onto the premises for commercial purposes or during normal periods of commercial activity in which members of the public are invited."

Section 53-08-05 of the North Dakota Century Code keeps in place any liability that otherwise exists in two situations. The first is a "willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity." The second is an injury where the owner charges for entry, apart from any amount the state pays the owner, and the owner's total recreational charges in the previous calendar year exceeded twice that land's property taxes for that year. For agricultural land, the threshold is four times the property taxes.

"Willful and malicious" points to deliberate conduct, a higher bar than ordinary negligence. For a family whose loss happened on open land, this rule can mean that ordinary carelessness by the landowner is not enough, so who owned the land, whether a fee was charged and how the accident happened become the central questions.

Filing Deadlines for a North Dakota Drowning Claim, and Why They Are Fixed

A statute of limitations is the period within which a lawsuit must be filed. Section 28-01-16 of the North Dakota Century Code requires certain actions to be "commenced within six years after the claim for relief has accrued" (Chapter 28-01). Item 5 covers "any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided." For a near-drowning injury, the first question is whether that six-year period applies or another statute expressly provides a different one.

When death follows, section 28-01-18 of the North Dakota Century Code sets two years for "An action for injuries done to the person of another, when death ensues from such injuries." The claim is "deemed to have accrued at the time of the death of the party injured." Death from malpractice follows a separate discovery rule. The section also opens with "Except as provided in section 28-01-25.2."

For a person under eighteen when the claim accrues, section 28-01-25 of the North Dakota Century Code provides that "the time of such disability is not a part of the time limited for the commencement of the action." The extension cannot run "longer than one year after the disability ceases," and in professional malpractice cases the extension for infancy "is limited to twelve years."

Under section 32-12.2-04 of the North Dakota Century Code, a claim against the state or a state employee requires written notice to the director of the office of management and budget within one hundred eighty days after the injury "is discovered or reasonably should have been discovered," or within one year for a serious injury (Chapter 32-12.2). The time does not include any period when the injured person is incapacitated by the injury from giving notice. Section 32-12.1-10 of the North Dakota Century Code sets three years after accrual for an action against a political subdivision, except as that section otherwise provides (Chapter 32-12.1).

A claim filed after its period has run is generally barred, however strong it may be. In practice, a family whose loss happened at a state-run site could lose a claim by missing the notice window, even while the general period is still open. That is why pinning down which period applies is often one of the first steps with an attorney.

If the Person Who Was Hurt Was Partly at Fault: North Dakota's Fault Rules

Many families carry a painful question: was it partly our fault, or partly his? Section 32-03.2-02 of the North Dakota Century Code provides: "Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering" (Chapter 32-03.2). The court may, and on request of any party shall, have the jury find each person's percentage of fault, "whether or not a party."

The same section makes liability "several only, and is not joint," meaning each party found at fault is responsible only for its own share of the damages. Persons who act in concert, aid or encourage the act, or ratify or adopt it for their benefit are jointly liable for their combined share.

In a drowning case, fault may be divided among a property owner, an operator, a lifeguard's employer, and sometimes the injured person or a supervising adult. In concrete terms, a share of fault assigned to the injured person reduces the recovery by that share, and a share as great as everyone else's combined ends it. Because liability is several, a family may also be unable to collect one party's share from another.

If a Drain, Barrier or Device Failed: Product Claims and North Dakota's Statute of Repose

Sometimes a product is part of the story: a pool drain, a pool barrier or fence, a flotation device, a boat component or water-park equipment. North Dakota's definition of a "product liability action" is wide enough to reach claims against a manufacturer or seller for injury or death caused by a product's design, manufacture, labeling or sale, or by a failure to warn or instruct, "regardless of the substantive legal theory" (Chapter 28-01.3).

Section 28-01.3-08 of the North Dakota Century Code sets a statute of repose, an outer limit tied to the product's life rather than to the accident. "Except as provided in subsections 4 and 5," there may be no recovery "unless the injury, death, or property damage occurs within ten years of the date of initial purchase for use or consumption, or within eleven years of the date of manufacture of a product." The section also addresses cases where a manufacturer, wholesaler or retailer issues a recall or becomes aware of a defect. Subsection 2 states: "This section applies to all persons, regardless of minority or other legal disability."

A statute of limitations runs from when the claim accrued; a repose period runs from the product's purchase or manufacture. For a family, this means a claim against the maker of an old drain may be barred before the accident ever happened, even for a child, unless an exception applies. A drowning does not show that a product was defective; that turns on evidence about its condition and design, which is one reason keeping the equipment can matter.

After Losing Someone to the Water: Wrongful Death in North Dakota

This section is for families who have lost someone to the water. North Dakota allows an action "Whenever the death of a person shall be caused by a wrongful act, neglect, or default" that would have allowed the injured person to sue had they lived (Chapter 32-21).

Section 32-21-03 of the North Dakota Century Code says the action "shall be brought by the following persons in the order named":

1. The surviving husband or wife.
2. The surviving children.
3. The surviving mother or father.
4. A surviving grandparent.
5. The personal representative.
6. A person who had primary physical custody of the decedent before the wrongful act.

If a person entitled to bring the action refuses or neglects to do so for thirty days after a demand by the next person in order, that next person may bring it. For parents who have lost a child with no surviving spouse or children, this order places them first in line.

On damages, section 32-21-02 says the jury "shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery." Under section 32-21-04, the recovery is not liable for the decedent's debts and goes to the heirs at law in shares the judge fixes. The two-year period in section 28-01-18 runs from the death. A family weighing these questions may discuss them through a case evaluation request.

Piecing Together What Happened: Records That May Help a Family

These records often matter:

• Medical records and hospital documentation, which show the injury and treatment.
• Incident reports prepared by the property or operator.
• Police or emergency-responder reports.
• Photographs and video from the scene, including any surveillance footage.
• Inspection records for the pool or waterway, and maintenance logs.
• Lifeguard certifications and staffing records.
• Witness names and contact information.
• The product or equipment involved, if one was.

Each record can bear on a part of a claim: staffing records on supervision, maintenance logs on the condition of the premises, medical records on damages. Surveillance footage and maintenance records are usually held by the property owner or operator, not the family, so a family may not see them without help. An attorney can help identify which records bear on the claim and who holds them.

North Dakota's rules differ from those of other states, such as Delaware drowning law, Colorado drowning claims and Arizona drowning claims.