Swimming Pool Accidents: Premise Liability Claims

swimming pool

Swimming pools are a big source of entertainment in Texas, especially given how many months out of the year they can be used. However, there are inherent risks involved with owning a pool, or even using one. Drowning is such a high cause of death, especially among children. If you were injured or if you know someone who died because of an accident in a swimming pool, chances are the case would be a “Premise Liability” case, and not a strict negligence case. Specifically, if the injury was a result of the condition on the property (regarding the conditions of a pool or safety features of a pool), premise liability applies. But if the injury was a result of an activity instead (reckless or otherwise), negligence applies. What does this mean for you? It means there are guidelines that Texas has spelled out as to whether or not you can recover for the injury or death resulting from this type of accident. A swimming pool accident lawyer can help.

Requirements For Texas Pool Owners

Texas residents are required to abide by several rules to try and keep everyone safe. If you have a pool in your yard, you’re likely familiar with these rules. If you’re not – then you should be! The rules exist for the benefit of everyone to keep incidents and accidents at a minimum. If you own a pool, among other requirements, you’re going to need to make sure:

  1. The height of the pool yard enclosure is at least 48 inches
  2. The opening enclosure may not allow a sphere of four inches to pass
  3. It must have a self-latching gate
  4. There must be a throw rope
  5. There must be a reaching pole
  6. You must have a cover

For the complete list of rules, be sure to research what’s required before you install a pool or move into property with a pool.

Knowledge of Unsafe Conditions

In Texas, part of determining whether the owner was negligent comes from the type of knowledge they had of the unsafe condition.

Actual knowledge is the most difficult type to prove and the most difficult to fight in court. If the owner needed actual knowledge, then you, the injured party, must prove that prior to the incident, they were actually aware of the dangerous condition. It’s not enough that they created the unsafe condition. Further, it’s not enough to merely suggest that they knew or that they should have known. In order to win this argument, you must prove that they did know. This can be tricky because it’s difficult to prove knowledge in court. How do you show that someone certainly knew something? Say, for instance, an unreasonably dangerous condition existed on the property, like a very large and hidden hole. Unless the owner knew of the hole and you can prove they knew of it, you don’t meet the standard to prove actual knowledge.

Constructive knowledge is the next step. Constructive knowledge is that the owner of the property should have known. Going back to our example of a hole on the property, if the hole was in a location that the owner would have walked by or should have walked by, you may be able to prove that they should have known of its existence. This is easier to prove than proving that they actually did know of it.

When determining if you have a case, these types of knowledge will play a part.

How a Swimming Pool Accident Lawyer Determines if You Have an Injury Case

In deciding whether or not you have a case, there are a few questions you have to ask. First, who was in control of the property? Second, why was the injured person on the property?

Regarding who was in control of the property, there are several instances that may arise. Was the injured party on the party for their own benefit as a social guest? For instance, did your friend invite you over for a barbecue and you swam a bit during the day? Or was the injured person invited as a business patron? This would happen at a public pool, a water park or anywhere that business is expected for the use of the pool. Finally, was the injured party a trespasser who used the pool without permission?

When you’re a guest somewhere, the owner of the property is obligated by the Texas law to keep up certain safety measures while you’re there. They’re responsible for making sure you, the visitor, doesn’t get harmed.

Let’s go through each one individually:


A Licensee is a guest who was on the property for social benefit. This is the person who was invited over for a barbecue. An owner has the duty to make a condition “reasonably safe” when they have “actual knowledge of an unsafe condition” and to “not injure the guest through willful, wanton or grossly negligent conduct.”

This means that the owner of the property is responsible for making sure the property is “reasonably safe”. They must have actual knowledge of unsafe conditions. Referring back to the previously discussed elements of knowledge, this is the most difficult to prove. You have to show that the owner absolutely knew of the unsafe condition.

Additionally, you must prove that there was an unreasonable risk of harm. This means that you have to prove that the risk of harm was so probable that a prudent person under the same or similar circumstances would have foreseen it.


An Invitee is someone who enters the facility for mutual benefit. This person is a business patron. Typically, they exchange money (their business) for use of the facility. This is the type of guest for any public pool, amusement park, or place of business that exists for the public. In these situations, the owner is responsible for protecting you from dangerous conditions that come from the owner’s control of the property. They are negligent if the condition has an unreasonable risk of harm and the owner knew or should have known and failed to exercise the ordinary care of protection from the danger, reasonably warn the injured person, or failed to make the condition reasonably safe.

This means that the owner of the property is reasonable for making sure the facility is reasonably safe. They cannot create dangerous conditions on the property. For example, if you’re at a waterpark, the owner cannot dig holes into the ground and leave them for you to walk into.

Additionally, you must prove that they had constructive knowledge of the unsafe condition. This means they either knew or should have known of the condition. This is easier to prove than actual knowledge.


A Trespasser is someone who had no authority to be on the property. Whether they were breaking and entering, or if they found the property and assumed they could use is. The owner of the property has no duty to warn or make the property safe to a trespasser. The only duty the owner has to a trespasser is to not intentionally harm the trespasser and exercise reasonable care for the trespasser’s safety.

If you are injured because you were on someone’s property without their permission, you likely don’t have a case against them because you had no right to be there.

If Premise Liability Doesn’t Apply

As discussed above, if the injury comes from the condition of the property, premise liability applies. However, if the injury happened because of someone’s actions or unsafe activity, normal negligence applies.

For example, say you’re at a waterpark and the employee was acting reckless while waiving you down the slide and drinking alcohol at the same time. Then let’s say their actions resulted in collision because the slide wasn’t clear. In this instance, although the incident happened in a pool, you wouldn’t seek to recover under the premise liability laws of Texas. Instead, you’d try to recover under normal negligence.

To prove negligence, you must show there was a duty, breach, causation and damages. Let’s go through each one specifically:

To prove there was a duty, you want to show that the waterpark employee had a duty in his capacity to allow the slide riders to enter safely. It was his duty to ensure that the pool at the bottom of the slide is clear and to pay attention.

To prove breach after you’ve established a duty, you want to prove that the waterpark employee breached that duty. The waterpark employee breached the duty to keep patrons safe because he was acting reckless and drinking.

To prove causation, you need to prove that the waterpark employee’s reckless actions lead to the injuries. His reckless actions and distraction from drinking is what lead to the patrons colliding at the bottom of the slide.

Finally, to prove damages, you need to prove that there were financial consequences of the employee’s actions. To prove this, you can show hospital records, lost wages from time off work, or more.

Swimming Pool Accident Lawyer in Austin, Texas

The bottom line is that there are many ways to recover if you were injured in a swimming pool, or on the property of someone who owns a pool. If you have questions regarding your specific case and the facts surrounding your recovery, you should contact a swimming pool accident lawyer. The experienced attorneys at McKinney Vos offer free consultations to discuss the merits of your case. Fill out our form, or call us at (512) 457-8991 to get started.