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Toddler's Drowning Death in Backyard Pool Prompts City Crackdown

July 31, 2012

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The death of a Brockton toddler in a neighbor's backyard swimming pool has led city officials to crack down on pools that violate municipal regulations. State officials and county prosecutors are investigating the circumstances of the child's death, and the case remains under investigation. The case illustrates the importance of a Massachusetts law, based on a common law doctrine known as "attractive nuisance," imposing a duty on property owners to secure dangerous conditions that are likely to attract children.

During the early evening of Sunday, July 22, 2012, neighbors noticed a 2 year-old toddler at the top of the ladder of another neighbor's above-ground swimming pool. The Summer Escapes-brand pool is reportedly about three feet tall and sits entirely above ground. The pool may be accessed by a removable ladder, which was apparently in place that evening. Neither the neighbor's yard nor the pool was enclosed by a fence. Sometime before 8:40 p.m., a member of the child's family went looking for her and found her in the pool, unconscious. By the time police arrived at the scene, neighbors were attempting to resuscitate her, but she was pronounced dead at the hospital.

City officials said that the property owners did not have a permit for the pool, which the city requires for any pool deeper than two feet. Additionally, because the pool was less than four feet tall, a city ordinance requires the yard to be fenced. The federal government reports that nearly four hundred children under the age of fifteen drowned in swimming pools or spas each year from 2007 to 2009. Around three-fourths of that number were under the age of five. Drowning is a leading cause of death for children younger than five. In response to the toddler's death, Brockton city inspectors have been surveying neighborhoods for non-compliant swimming pools or fencing. They are giving homeowners who do not have permits for their pools and/or do not have adequate fencing twenty-four hours to obtain a permit. The city is authorized to remove pools that violate city ordinances.

This case raises questions of civil liability under the state's statutory duty of care owed to children. A state law that closely resembles the common law "attractive nuisance" doctrine holds property owners liable for harm to children caused by "artificial conditions" on their land under certain circumstances. The law imposes liability if:

  1. the condition exists somewhere that the owner should know is accessible to children;
  2. the condition poses unreasonable dangers to children;
  3. children would not appreciate the danger of the condition;
  4. the cost to the owner of removing or securing the condition is small compared to the risk to children; and
  5. the owner fails to exercise reasonable care to remove or secure the condition.

The lawyers at Sousa & Sousa represent clients throughout Easton, Bridgewater, Brockton, Stoughton, Taunton, and other surrounding communities. To speak with a skilled personal injury attorney today, you may call our Brockton office at (508) 230-5300, or you may contact us through our website.

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Photo credit: 'Bozen 1 (399)' by User:Mattes (Own work) [Public domain], via Wikimedia Commons.