Swimming Pool Accidents in Georgia

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Who answers for a pool injury or drowning in Georgia depends on who the injured person was and what kind of pool it was. An invited guest or tenant is owed ordinary care. A public pool, including one at an apartment complex or a hotel, must meet federal requirements aimed at drain entrapment. And a young child who wandered onto private property uninvited is not automatically barred: in a case about an unfenced backyard pool, the Supreme Court of Georgia held that the owners’ liability under the doctrine of attractive nuisance was a question for trial.

The Invited Swimmer

An owner or occupier of land who invites others onto the premises for a lawful purpose is liable for injuries caused by a failure to exercise ordinary care in keeping the premises and approaches safe (OCGA 51-3-1). At a rental property, the duty to keep the premises repaired falls on the landlord (OCGA 44-7-13(a)). A landlord who has fully parted with possession is not responsible for the tenant’s own negligence but remains responsible for damages from defective construction or from a failure to keep the premises in repair (OCGA 44-7-14).

Drain Entrapment and Federal Law

Federal law sets a drain cover standard: each swimming pool or spa drain cover “manufactured, distributed, or entered into commerce in the United States shall conform to the entrapment protection standards of the ASME/ANSI A112.19.8 performance standard, or any successor standard” (15 U.S.C. 8003(b)). Each public pool and spa “shall be equipped with anti-entrapment devices or systems that comply with the ASME/ANSI A112.19.8 performance standard, or any successor standard,” and a public pool or spa “with a single main drain other than an unblockable drain” must also have at least one further safeguard, such as a safety vacuum release system, a suction-limiting vent system, a gravity drainage system, an automatic pump shut-off system, or a device that disables the drain (15 U.S.C. 8003(c)(1)(A)).

“Public pool and spa” reaches beyond pools open to everyone. It includes a pool open exclusively to “residents of a multi-unit apartment building, apartment complex, residential real estate development, or other multi-family residential area,” to members of an organization and their guests, or to “patrons of a hotel or other public accommodations facility” (15 U.S.C. 8003(c)(2)). A violation is treated as a violation of the Consumer Product Safety Act (15 U.S.C. 8003(c)(3)).

The Child Who Was Not Invited

“A lawful possessor of land owes no duty of care to a trespasser except to refrain from causing a willful or wanton injury,” but the statute provides that “[g]eorgia common law as it exists and is applied to the doctrine of attractive nuisance, in effect as of January 1, 2014, shall not be construed to be altered by this Code section” (OCGA 51-3-3(b), (c)).

In Gregory v. Johnson, 249 Ga. 151 (1982), a two-year-old drowned in a swimming pool in the side yard of a home on a corner lot in a residential area. The pool had a diving board and a slide, and neither the yard nor the pool was fenced. The parents alleged that young children were known to be in the vicinity and that the owners had been warned about children and had refused to build a fence. The Supreme Court of Georgia adopted the approach of Restatement (Second) of Torts section 339, under which a possessor of land is subject to liability for physical harm to trespassing children caused by an artificial condition if the possessor knows or has reason to know that children “are likely to trespass” where the condition exists; the possessor knows or has reason to know of the condition and realizes or should realize that it involves an unreasonable risk of death or serious bodily harm to such children; the children, because of their youth, do not discover the condition or realize the risk; the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk; and the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

The Court wrote that “[a] landowner is not an insurer of the safety of children, even if he chooses to build a swimming pool,” and that “[t]he duty imposed is to exercise reasonable care to prevent foreseeable injury, not to protect against any injury.” It held that “[i]ssues exist as to the Johnsons’ knowledge of the presence of children who cannot appreciate the danger, and if they had reason to know of the dangers whether the failure to erect a fence, under all of the circumstances amounts to a failure to exercise reasonable care.” Three Justices dissented.

Frequently Asked Questions

Does the federal drain law apply to an apartment complex pool?
Yes. The definition of “public pool and spa” includes a pool open exclusively to residents of an apartment complex or other multi-family residential area (15 U.S.C. 8003(c)(2)).

Did the parents’ own conduct matter in Gregory?
The Court held that whether the parents were negligent was a question for the jury.

How long does an injured child have to file?
The period for injuries to the person is two years (OCGA 9-3-33), and a person under 18 when the claim accrues has the same time after turning 18, except as OCGA 9-3-33.1 provides (OCGA 9-3-90(b)). The extension is written for a person who was under 18 when the claim accrued, so what it extends is the child’s own injury claim.

  • OCGA 51-3-1; OCGA 44-7-13(a); OCGA 44-7-14
  • 15 U.S.C. 8003(b), (c)
  • OCGA 51-3-3(b), (c)
  • Gregory v. Johnson, 249 Ga. 151 (1982) (applying Restatement (Second) of Torts § 339)
  • OCGA 9-3-33; OCGA 9-3-90(b); OCGA 9-3-33.1

Disclaimer

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

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