Drowning is a leading cause of death and injury in the United States, and California is no exception. While drowning incidents may occur in natural bodies of water, such as lakes and oceans, they can also happen in manufactured structures, such as swimming pools and hot tubs. When a non-fatal drowning brain injury occurs on a property in California, there is often a question about whether the property owner can be held liable for the incident. Since the answer depends on the facts and circumstances surrounding the drowning, this blog post will examine the legal considerations and discuss the potential liability of California property owners for non-fatal drowning brain injuries.

non-fatal drowning

California Premises Liability Law

Before we dive into the specifics of non-fatal drowning brain injuries, it’s important to understand the general concept of premises liability in California. Premises liability is a type of negligence law that requires property owners to keep their premises in a reasonably safe condition. 

Generally, California law imposes a duty of care on property owners, which includes taking steps to prevent accidents and injuries on their property, such as removing dangers, repairing defects, and providing fair warning of potential dangers.

In California, property owners are generally liable for injuries occurring on their property if they knew or should have known about a hazardous condition through reasonable inspection and failed to remedy it. This is true whether the property is private, commercial, or public. Property owners owe this duty to anyone with a legal right to be on their property, and it can be greater for children, who may lack the ability to predict risks and dangers. It is not, however, customarily owed to trespassers.

Can Drowning Cause Brain Damage?

Drowning incidents can occur for various reasons, including poor swimming ability, inadequate supervision, and equipment malfunctions. Regardless of the cause, non-fatal drowning brain injuries can have significant long-term effects, including cognitive impairment, memory loss, and permanent disability. Non-fatal drowning incidents generally result in severe brain injuries from oxygen deprivation, known as hypoxic or anoxic brain injuries. A hypoxic injury occurs when the brain still receives some oxygen but not enough. An anoxic injury occurs when oxygen is cut off entirely from the brain. Like all body parts, the brain needs oxygen to function, so when the brain does not get it, the deprivation can lead to permanent disabilities or death.

Liability for Non-Fatal Drowning Brain Injuries

In California, where a non-fatal drowning brain injury occurs on a property, liability will depend on the case’s specific facts and circumstances. Generally, the injured party will need to demonstrate that the property owner breached their duty of care by failing to take reasonable steps to prevent the accident. This includes ensuring that pools and other bodies of water on their premises are adequately fenced, gated, and secured to prevent unauthorized access.

Other factors that may help a court determine whether the property owner breached their duty of care include:

  • What another property owner would reasonably have done under the same or similar circumstances,
  • The location of the pool or property,
  • Whether the injured person had a right to be on the property,
  • The injured person’s intentions when visiting the property,
  • Whether the harm or accident was foreseeable and preventable,
  • Whether the pool is above ground or below ground,
  • Whether there was appropriate safety equipment available (such as life jackets or flotation devices),
  • The property owner’s degree of control over the pool or body of water,
  • The property owner’s actions in inspecting the pool or body of water,
  • The property owner’s burden of avoiding or mitigating the risk of damage,
  • The obviousness of the dangerous condition, and
  • Any history of other injuries on the land.

If the injured party acted negligently by, for instance, swimming while intoxicated or ignoring posted warning signs, it might reduce a property owner’s liability level. Furthermore, in California, if the dangerous condition that caused the injury was “open and obvious” at the time of the accident, it may preclude plaintiffs from recovery.


In the case of trespassers, a property owner’s liability is generally limited. For example, suppose a trespasser enters a property and suffers a non-fatal drowning brain injury in an unsecured pool. In that case, insurers or a court might not hold the property owner liable if they had no reason to anticipate trespassers. However, if the property owner knew that trespassers regularly used their pool, they could be liable for failing to take reasonable measures to protect them.

Attractive Nuisance Doctrine

Before 1970, California had what’s known as an “attractive nuisance doctrine.” This doctrine applied primarily to children lured to a property by an attractive condition like a pool or trampoline who were then injured while trespassing. Under the doctrine, property owners had a higher duty of care towards children attracted to dangerous conditions on their property, even if they were trespassing. But in 1970, the California case of Beard v. Atchison removed the attractive nuisance doctrine from California law. Although California no longer recognizes the attractive nuisance doctrine, California property owners still have a general duty to keep property with alluring conditions reasonably safe. The law also imposes a duty on homeowners to warn others of dangers on their land that might not be readily apparent.

GJEL Accident Attorneys, TBI Advocacy You Can Count On

If you or a loved one are victims of a drowning brain injury caused by someone else’s negligence, the experienced TBI advocates at GJEL can help you fight for the compensation you deserve. In our 40 years of practice, we’ve recovered nearly $1 billion for injury victims and have maintained a 99% success rate, proving to bad actors and their insurers that we mean business. At GJEL, we believe in treating all our clients with compassion and respect and handle every case as though it is our one and only — at GJEL, you will never just be a case or file number but family. Call us 24/7 at 1-866-268-7118 for a free case review.

Visit our office nearest to you.