Attorney Stephen Gorey
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Who is at fault in such a situation?
Legally, it is usually NOT THE DIVER’S FAULT.
Why is this?
The reason the law holds others at fault is that the swimming pool industry (swimming pool designers, swimming pool manufacturers, hotels with pools, apartments with pools, community pools, water parks, etc.) have superior knowledge about the mechanics of swimming and diving and the risk of serious injury of these activities, much more than the public.
Most people do not realize that a teenager runs such a risk diving headfirst from a pool deck at a steep angle into less than 8 feet of water and under no circumstances should dive into water that is less than 6 feet deep (competitive swimmers trained to make a shallow entry being a recognized exception).
Most people do not realize that a low diving board should not be more that 40 inches above the water and the water for the dive should be at least 9 feet.
But the swimming pool industry does know this and people and companies who make money off the public by selling them pools or charging them to use pools, directly or as part of the cost of a hotel room or apartment, need to provide warnings that are clear, conspicuous and properly designed to prevent such activities.
The duty of a pool owner to prevent diving injuries does not stop with putting up a sign that says “No Diving.” Sometimes the pool itself is built wrong. It can have a diving board that is over water that is too shallow. It can have a diving board that is too “springy” and allows divers to get airborne all the way into shallow water. It can have a slope into the deep end that is so steep that it makes diving into water like diving into an underwater wall. It can be mis-marked as to the depth, or have no depth markers at all so that a diver does not realize how shallow the water actually is.
I had a case in Orange County in which an “upscale apartment” had a designer pool. The pool was gorgeous and water was kept crystal clear. The only problem was that it didn’t just have four sides. It had several curves and angles and at one point you could stand to dive in, look straight ahead and see a 6 foot depth marker, but the water under your feet would only be 3 and a half feet deep. The clarity of the water during the day made the water almost invisible and a swimmer would have an optical illusion at this point. Unfortunately, a man in his early thirties did head first dive from this point thinking he had more water under him than he did and ended up quadriplegic. He died of those complications and I won a judgment at trial for wrongful death on behalf of his children against the corporation that owned this apartment complex.
While liquor is sometimes involved in people making dives into shallow water, the provider of the liquor is often legally responsible. For example, I represented a young woman who was attending a business party at a resort near Newport Beach, California. The resort was selling liquor and sold this woman enough to get drunk. The pool outside the ballroom was lit at night and very scenic but it was not secured against people the resort sold drinks to from getting into it at night and this woman was too impaired to be able to judge the depth properly. She dove in headfirst and broke her neck, resulting in surgery to fuse her part of her upper spine (cervical fusion). I recovered for her against the resort, in the same way that I would recover against a bar that keeps on serving someone who is intoxicated and gets behind the wheel of a car, injuring my client in a drunk driving accident.
Small children at water parks dive into all kinds of trouble and come up with broken teeth and facial lacerations. This is often the fault of the establishment in failing to enforce their own rules. An establishment that puts up a “No Diving” sign and then has employees passing by the pool without stopping people who are diving is not in compliance with safety standards well known to the swimming pool industry and can be held liable for this “non-action” (omission).
The laws regarding swimming pool depths, design, markings, warnings, lifeguards, diving boards, etc., vary from state to state and even county to county. However, the superior knowledge of safety requirements in the swimming pool industry blankets the entire U.S. and the violation of these known safety requirements is often the legal cause of a diver’s injuries.