It takes less than two minutes and makes no sound. A child slips beneath the surface, and a whole family splits into before and after.
If you’re reading this, you might be in the “after” and experiencing the crushing loss of a child. You’re left with the grief and a question your mind can’t stop asking: Could this have been prevented? If so, is someone responsible? In West Virginia, the answer to both questions is often yes.
Pool owners have real duties. When they fail them, families have a right to hold them accountable. Here are your legal options after a pool drowning in Charleston, and how the law treats people who should have kept that water safe. If a preventable hazard has caused harm to your family, our premises liability attorneys can help you understand who is responsible.
Understanding West Virginia Premises Liability and Pool Safety
In West Virginia, premises liability is the legal principle that holds property owners accountable when a hazard on their land harms someone. Few hazards are more foreseeable than open water.
What this means is simple: Owning a pool means owning a responsibility. Anyone who puts a private or public swimming pool on their property automatically assumes a duty of care.
Children make this duty heavier. Under the attractive nuisance doctrine, West Virginia treats a pool as exactly what it is to a curious, playful kid: an irresistible attraction. Owners are expected to take reasonable steps to keep children from wandering in unsupervised.
Such steps could include fences with locking gates and pool covers.
Drowning is the leading cause of death for children ages one through four, according to the CDC. That is why owners must take this responsibility seriously.
The Legal Rights of Families After a Fatal Drowning
A drowning is tragic because it is often so sudden and so final. No lawsuit or medical procedure can bring a loved one back. Nevertheless, West Virginia law gives families a chance to at least hold negligent property owners accountable and ease the financial burden that accompanies the grief. It’s called a wrongful death claim. It won’t undo what’s happened, but it can be a path to healing.
A wrongful death claim for a pool drowning in West Virginia can be filed on the family’s behalf by the estate’s personal representative. When a child has died, the parents can file this claim.
A wrongful death suit can recover the following:
- Funeral and medical costs
- Lost income
- Loss of companionship and care
The property owner’s insurance company will fight back. They treat these claims as numbers and work to keep payouts as small as possible. The insurer’s first move usually is to feign compassion while offering too little, too fast, before the grieving family even knows what the case is worth.
Proving Negligence in a Charleston Pool Injury Case
A claim only works if you can prove the property owner was negligent. Doing that requires satisfying each of these four tenets:
- The owner owed a duty of care
- The owner breached that duty
- The breach caused the drowning
- Your family suffered real losses because of the drowning
In any case involving a pool drowning, the breach tends to hide in plain sight: a missing or unlatched fence, a broken drain cover, an unlocked gate, or no lifeguard on duty where one was required. Public swimming places and hotel pools must meet even higher standards of care in swimming pool negligence laws.
Any violation of those standards can be powerful evidence of negligence.
Unfortunately, proof tends to disappear fast, especially when a fatality is involved. For this reason, it very much matters what you do in the immediate hours and days after.
Statute of Limitations for Pool Accident Claims in West Virginia
West Virginia keeps a two-year statute of limitations for most personal injury and wrongful death claims. The clock generally starts ticking on the day the drowning occurred or the date of the victim’s passing.
Two years can seem like plenty of time while confronting overwhelming grief. But West Virginia’s two-year rule can fly past before you know it. If you miss the deadline to file your claim, your case is over before it starts, even if you had the strongest case ever.
Taking action sooner does more than protect the filing date. It helps preserve critical evidence. Witnesses forget what they saw or heard. Maintenance logs get tossed.
That unlatched pool gate quietly gets fixed. The earlier someone starts preserving evidence, the better.
You Shouldn’t Have to Fight Alone Right Now
Burying a loved one is hard. It’s not the best time to go toe-to-toe against an insurance adjuster. Unfortunately, that’s exactly what families are expected to do.
DiPiero Simmons McGinley & Bastress, PLLC understands the weight of that situation.
As a personal injury firm rooted in Charleston, DSMB knows all the ins and outs of West Virginia’s premises liability and wrongful death laws. We also know how to advocate for a grieving family against an insurance company trying to pay out as little as possible.
You and yours should be allowed to focus on each other during this time. Let someone else bring the legal fight forward. If your family has lost someone in a pool drowning, reach out to our firm when you’re ready to talk through your options.
