Swimming is a popular year-round pastime, but pools and recreational water areas present a drowning hazard. When a rescued drowning victim survives, the time spent under the water often causes anoxic brain damage. During a drowning event, a person loses consciousness and stops breathing, depriving the brain of the oxygenated blood it needs. As a result, brain cells die. Anoxic brain damage is inevitable once the brain goes too long without oxygen.
The Centers for Disease Control and Prevention cite drowning as the cause of ten deaths each day in the United States. Drowning is also a leading cause of death in children ages one to 14. Hospitals treat five times more nonfatal submersion injuries than drowning deaths. More than 50 percent of drowning victims treated in hospital emergency departments require hospital stays.
When a near-drowning event causes anoxic brain damage, the injuries sometimes transform a normal child or adult into a disabled dependent. The medical and rehabilitation costs associated with addressing deficits caused by anoxic brain damage frequently last a lifetime. Adults who sustain anoxic brain damage may lose the ability to work. A child with these injuries sometimes requires a lifetime of around-the-clock care.
How Do Anoxic Brain Injuries Occur?
Anoxic brain injuries occur whenever the brain is deprived of oxygen for more than four minutes, on average. When caused by near-drownings, they can occur in every imaginable body of water, from a bathtub to a backyard pool to a lake, river, or ocean. Backyard pools represent an especially common location for anoxic brain injuries caused by near-drowning because, because they tend to attract children and often lack proper safety equipment and monitoring. Once a child falls into water and begins to drown, anoxic brain injury can follow in short order.
Signs of Anoxic Brain Damage
As with any injury, each instance of anoxic brain damage is unique to the individual and the circumstances. The symptoms differ depending on the part of the brain affected. Some injured victims recover over time. Others have brain damage so profound they will enter a permanent vegetative state. When a person has anoxic brain damage, their care, needs, prognosis, and recovery are often unpredictable. In many cases, care and treatment last a lifetime.
When a near-drowning occurs you should always consider the potential for anoxic brain damage. Look for one or more of these physical, cognitive, or emotional symptoms.
- Loss of consciousness
- Behavioral changes
- Limb numbness or tingling
- Severe headache
- blurred vision
- motor impairment
- Speech difficulties
- Personality changes
- Long-term memory problems
- Depression and anxiety
- Trouble falling asleep
The decline in brain function caused by anoxic brain damage often requires extensive care and rehabilitation. When the injury is serious, there is a greater chance of long-term or permanent disability. In adults, an anoxic brain injury often requires occupational, physical, and mental therapy, day care, and long-term treatment regimens. An adult may also require training to regain lost abilities. Anoxic brain damage can also slow a child’s physical, emotional, and educational development.
Near-drowning events often occur when a property owner doesn’t maintain his property and keep it safe. Under New York law, an owner or a person who controls a property generally must use reasonable care to keep the premises in reasonably safe condition. This standard of reasonable care differs depending on the circumstances, which may include the age of the victim and their legal status on the property when the anoxic brain injury occurred. For example, an adult may have difficulty recovering compensation for injuries sustained in a near-drowning incident in a pool where the adult is trespassing, a child injured in the same manner and at the same pool may be able to recover compensation, because the care a pool owner should take to protect children from harm may be greater.
The Attractive Nuisance Doctrine
When a child sustains an anoxic brain injury through near-drowning in a neighbor’s pool, a parent or the child’s custodian may have a viable claim for damages under the legal doctrine known as attractive nuisance. This legal principle recognizes that children are drawn to artificial, colorful, or attractive objects that can harm them. An item or condition must meet several criteria for consideration under this doctrine.
- The object or condition is artificial.
- The property owner should have known a child would enter the property.
- The property should have known of the risk of injury or death.
- The child was too young and couldn’t recognize the danger.
- The benefit of keeping it and the burden of eliminating it is less than the risk posed to a child.
- The owner didn’t remove the object or condition and did not use reasonable care.
- Anoxic brain damage
Insofar as a backyard pool often meets these criteria, it may be deemed an attractive nuisance under New York law.
Potential Defenses to Premises Liability Claims
When a victim sustains anoxic brain injury by nearly drowning in a privately-owned pool, the property owner will likely have a range of potential defenses to a claim for damages. These may include:
- Open and obvious: Adults, in particular, appreciate the obvious dangers inherent in swimming in a pool without a lifeguard or other safety feature. The obviousness of these dangers can reduce a property owner’s potential liability.
- Comparative negligence: Under New York’s pure comparative negligence statute, when a defendant proves the injured person bears part of the fault for the injury, damages will be reduced by the percentage of the victim’s fault.
- Damage defense: Sometimes, a defendant may argue that the plaintiff’s injuries did not occur in the defendant’s pool or that the injuries are not as severe as alleged.
Contact The Law Offices of Ivan M. Diamond
If you or a family member suffered anoxic brain damage in a near-drowning event, Attorney Ivan M. Diamond may be able to help you recover substantial compensation that can help pay for long-term care and treatment. Call The Law Offices of Ivan M. Diamond at (718) 588-2000 or complete our contact form to schedule a free consultation with a member of our team.