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Hidden Dangers of Recreational Water Liability
Commercial Umbrella, General Liability, Personal Umbrella, Professional Liability, Property, Workers' Compensation
July 28, 2025 David Hurt
Region: North America
English

In the casualty insurance claim world, the most challenging claims seem to be those that involve water in a recreational setting, such as swimming pools, lakes, rivers, oceans, bathtubs, etc. Whether it’s a private residence or a commercial establishment like a hotel, gym, or community center, they are often littered with dangerous exposures. In fact, there is likely no situation involving water liability that doesn’t present a serious potential exposure to the insured.

The potential for accidents, serious injuries or even fatalities in and around all water risks creates the need for liability protection as well as precautions. In both personal and commercial settings, property owners or managers or friends/relatives could be legally responsible for ensuring the safety of users – and they must take the necessary steps to protect themselves from potential legal and financial consequences.

Actual Claims

Consider these actual liability scenarios, the catastrophic injuries and legal exposures:

  • Swimmer dives into the shallow end of the pool, hits his head and sustains quadriplegic injuries. Plaintiffs argued that the warning signage was not clearly visible or obstructed.
  • Child inhales helium from a balloon, passes out in the pool and sustains brain damage from being under the water too long. Plaintiffs argued the emergency phone near the pool was not functioning.
  • Child slips under the water and goes unnoticed for several hours by lifeguards because the pool was so crowded with children. Plaintiffs argued there were not enough lifeguards on duty and those that were did not have the correct certification.
  • Teenagers sneak into a public pool at night to party and one is discovered drowned in the dark water after the party is broken up by the police. Plaintiffs argued the public pool should have had operational surveillance cameras so the police could have responded more quickly.
  • Intoxicated hotel guest falls into the pool and drowns. Plaintiffs argued the hotel over-served the guest at the bar despite its proximity to the pool.
  • Swim club instructor gives lessons to a person who later drowns in a nearby lake. Plaintiffs argued the swimmer was not adequately taught to swim.
  • Elderly person with dementia wanders into a residential homeowner’s backyard and drowns in the pool. Plaintiffs argued the swimming pool gate should have been locked.

Who Should Be Held Liable and Why?

Why would the pool owner/operator/manager be held liable in these situations? Why isn’t the caretaker, parent, or injured person themself not at fault? In many scenarios, they might be. For example, let’s say the water was protected by some kind of barrier (e.g., fence, gate, lifeguards, armed guards, etc.) and has multiple warning signs that are compliant with all state water safety laws. Why shouldn’t you bank on defending that case and winning at trial?

In many instances, this may be why: In many claims, the defense is faced with a catastrophically injured or deceased person and distraught relatives who may have a mountain of medical bills. The injured person may be disfigured or left with a substantial and permanent medical condition that will cost millions of dollars for lifetime care. Also, what about the family who will need to care for that person 24/7?

As we continue to see, even in the most conservative jurisdictions around the country, it is possible for a jury can find reasons to award that injured person and their family some amount of compensation, if not a nuclear verdict.

The Reality

There may be all kinds of ways to lose a case that appears defensible “on paper.” Maybe your defense attorney didn’t ask the right questions at a deposition. Maybe there are multiple defendants, and the others settle with the plaintiff, leaving your insured as the only target defendant. Maybe the insured is unlikeable, or the plaintiff makes a very good impression. Maybe the judge rules that you cannot present certain evidence that makes or breaks your case. And of course, there are those “Judicial Hellholes”1 that make it difficult to defend and win even the most defensible cases.

Insureds may have serious potential exposures for accidents that may have been caused by the pool’s design, construction, maintenance, or user behavior. Swimming pool owners may have an obligation to maintain a safe pool environment, which could include obligations like proper upkeep, warning signs, and adequate supervision. Whether the insured is a homeowner with a pool or a commercial facility with a pool, the insured’s duties to the pool users are often the same but will ultimately depend on the specific jurisdiction in question.

If the insured lives or operates a commercial facility on or near natural bodies of water, the insured might have at least some responsibilities to the water user, even if they were trespassing on the insured’s property.

The reality may be that even when you think an insured is adhering to everything on a safety checklist, there may be ways to legally “find liability” on the insured pool owner/operator/manager. As such, these cases may be more dangerous than they initially appear, even when the facts are on your insured’s side. This should be taken into consideration when analyzing the appropriateness of allowing a jury to decide a water liability matter.

Endnote

  1. Judicial Hellholes, American Tort Reform Foundation, https://www.judicialhellholes.org.
Tags:
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north america, 
small commercial marketplace