Drowning and Near-Drowning Claims in Georgia

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After a drowning or a near-drowning, the family’s first legal question is about the water itself: where it was and who controlled it. Georgia’s recreational property statute treats water and watercourses as land, lists swimming among the recreational purposes it covers, and limits the duty of an owner who lets the public use land for recreation without charge. The Supreme Court of Georgia has also said that a child’s drowning claim can come out differently at a natural pond than at a residential swimming pool.

Natural Water and the Recreational Property Statute

For the recreational property statute, land includes water and watercourses, and recreational purposes include swimming, boating, fishing, and water skiing, among others (OCGA 51-3-21(2), (4)). An owner owes no duty of care to keep the premises safe for recreational entry or use, or to warn of a dangerous condition, to people who enter for recreational purposes, and an owner who invites or permits recreational use without charge does not thereby extend any assurance that the premises are safe or confer the status of an invitee or licensee (OCGA 51-3-22; OCGA 51-3-23).

Two situations fall outside that protection: a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, and a day on which the owner charged a person who lawfully entered for recreational use, when someone is injured in connection with the use that was paid for (OCGA 51-3-25). A person using another’s land for recreation keeps any duty of care that person would otherwise have in using the land (OCGA 51-3-26(2)).

The Artificial Pool and the Child

A lawful possessor of land owes a trespasser no duty except to refrain from causing a willful or wanton injury, and that rule does not alter Georgia’s common law of attractive nuisance as it stood on January 1, 2014 (OCGA 51-3-3(b), (c)).

The distinction between natural water and a pool comes from Gregory v. Johnson, 249 Ga. 151 (1982). As Gregory recounts, the Court of Appeals had stated in Montega Corp. v. Grooms, 128 Ga. App. 333 (1973), a case in which a child drowned in an excavation that filled with water, that “[t]he turntable or attractive nuisance doctrine does not apply to ponds or other water hazards,” and that rule had later been extended to residential swimming pools. Gregory adopted the Restatement approach instead, noting the Restatement’s comment that its rule “generally does not apply to dangers of fire, falling from heights, and water,” which children normally understand absent other factors, while “[a] swimming pool in a residential setting is often found to be a condition which could present issues of negligence and foreseeable risk of injury.” The Court concluded that “[t]he application of the Restatement rule leads to different results when dealing with a natural pond and water hazards associated with industry as opposed to recreational swimming pools located in areas where children are known to play,” and it reversed a summary judgment for the owners of an unfenced backyard pool in which a two-year-old drowned.

If a child who leaves no spouse or child dies, the right to recover for the death belongs to the parent or parents as OCGA 19-7-1(c)(2) provides.

Frequently Asked Questions

Does a lake owner who leases land to the State keep the protection?
Unless otherwise agreed in writing, the no-duty provisions apply to land leased to the State or a subdivision for recreational purposes, and the consideration the owner receives for that lease is not treated as a charge (OCGA 51-3-24; OCGA 51-3-25(2)).

Who counts as an owner under the statute?
Not only the titleholder: the term also reaches a tenant, a lessee, an occupant, or a person in control of the premises (OCGA 51-3-21(3)).

What counts as a charge?
An admission price or fee asked in return for permission to enter or use the land (OCGA 51-3-21(1)).

Does the statute create a new basis for a lawsuit?
No. The article is not to be read as creating a duty of care or a ground of liability for injury to persons or property (OCGA 51-3-26(1)).

  • OCGA 51-3-21(1), (2), (3), (4); OCGA 51-3-22; OCGA 51-3-23; OCGA 51-3-24; OCGA 51-3-25; OCGA 51-3-26(1), (2)
  • OCGA 51-3-3(b), (c); Gregory v. Johnson, 249 Ga. 151 (1982); Montega Corp. v. Grooms, 128 Ga. App. 333 (1973) (as quoted in Gregory)
  • OCGA 19-7-1(c)(2)

Disclaimer

This article provides general information about drowning and near-drowning claims under Georgia law. It is not legal advice, is not medical advice, and does not create an attorney-client relationship. Who is responsible and when a claim must be filed depend on the location, the water, and the specific facts. A family affected by a drowning should seek medical care and consult a licensed Georgia attorney promptly about the particular situation.

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