Liability for Water Park Injuries
Water parks are usually required to have a certain number of trained lifeguards present. But even if a park abides by these rules, it may not be enough to shift liability away from the park or lifeguards.
It will be important to talk to witnesses to find out whether the lifeguards were actually performing their duties at the time the child drowned. As painful as it might be, it will also be necessary to determine if the child’s actions led to his death. For example, had he been asked to stop some behavior, such as trying to hold his breath under water? It will also be necessary to find out if the part of the park where the child drowned is designed in an unreasonably dangerous way, or is insufficiently marked for danger. Some examples might include a section of a wave pool or river where there is a particularly strong current or undertow or where the waves get higher than in other parts.
It may be more difficult to hold any individual lifeguard liable unless you can show that one, or a group, was acting in a particularly negligent or careless manner. An example of this might be that the lifeguards at that park spend more time chatting among themselves or with members of the opposite sex who are at the water park than watching for park patrons. Your attorney may want to talk to witnesses as well as examine park records for any records of complaints against the lifeguards.
Moreover, it is likely that the individual lifeguards will be judgment proof – in other words, no matter what monetary award may be brought against them, the injured child's family may never be able to collect it from them. This is, in large part, because lifeguards are generally high school or college students and lifeguarding is often their only job, and it does not pay particularly well. Getting a judgment of several million dollars against someone who will never be able to pay it back is comparable to not receiving a judgment at all.
Another issue that an attorney will need to address will be assumption of risk. When people go to a water park, they know that there are certain risks associated with being there, such as the risk of drowning. Depending on what state, this may preclude a person from receiving damages, it may affect the amount of damages, or it may have no affect whatsoever.
In a wrongful death action, some of the things taken into account when determining damages include what the loss of the child means to the family in terms of future economic earnings, loss of companionship, and the loss of dreams for the child’s future. These types of damages are very subjective; there is no formula and it varies greatly from case to case, as well as locality to locality. An attorney will know the law in the state and will be able to advise on it and assess the value of a claim.