Child Drownings in Georgia: A Parent’s Nightmare

Because we handle a large number of premises liability cases, we frequently get calls on cases that involve injuries or death from children playing in residential swimming pools. Under most circumstances, trespassers on someone else’s land are going to find it very difficult to recover for any injury suffered while on that property. However, most homeowners would be surprised to hear that they could be held liable if a trespassing child made their way into their land and drowned in the backyard swimming pool.

The legal doctrine that provides for this exception is called the Attractive Nuisance Doctrine. Under this exception to the normal rules about trespassers, Georgia Courts have recognized that children don’t always have the capacity to understand unfamiliar dangers or appreciate the risks presented by unfamiliar property. Under this particular doctrine, a landowner has a duty to keep their property free of dangers that are accessible and could cause harm to trespassing children. Gregory v. Johnson, 249 Ga. 151 (1982) is a Georgia Supreme Court case that says this doctrine also applies to swimming pools.

So when is a homeowner with a swimming pool responsible when a neighborhood kid sneaks in and accidentally drowns in the pool? The Gregory Court says five conditions have to be met:

(1) the homeowner knows that children are likely to trespass;

(2) the homeowner knows (or should know) that the particular feature on his property could cause serious injury to children;

(3) children can’t appreciate the risk involved with the particular feature on the property;

(4) the homeowner’s maintenance of the condition or burden of eliminating the danger are small compared to the risk presented to children; and

(5) the homeowner fails to exercise “reasonable care” in eliminating the danger or protecting children.

So what does this really mean? If you’re thinking about putting in a pool in anticipation of beating the Georgia heat next summer, make sure the pool is surrounded by a well-maintained fence, with locks, that kids can’t climb.