When you visit a public pool or are invited to use a private pool, the operator assumes a certain duty to “exercise ordinary and reasonable care for the safety” of you and any other guests. This means, for instance, if someone drowns in the pool due to improper maintenance or a lack of safety equipment, the pool operator may be legally liable. But what happens when someone drowns in a public body of water such as an ocean?
Downes v. Oglethorpe University, Inc.
The Georgia Court of Appeals recently addressed this question in the context of a wrongful death lawsuit. The victim was a college student who died while participating in a study abroad program. The parents sued the school, alleging its negligence led to their son drowning in the Pacific Ocean.
The defendant school offered a 12-day study abroad program in Costa Rica. The school used a local tour operator to “coordinate the trip and to provide transportation and an English-speaking guide.” As part of the preparation for the trip, the faculty members accompanying the students asked them if “everyone is a good swimmer.” The students, including the victim, said they were and signed a “release agreement” holding the school harmless for any injuries they suffered while in Costa Rica.
On the day in question, the students, accompanied by the faculty and the guide, went to a local beach adjacent to the Pacific Ocean. According to court records, there were “no warning signs posted on the beach, nor any lifeguards or safety equipment present.” The students proceeded to swim in the ocean.
About 20 minutes later, one of the students started screaming. Another student swam to her position and realized the victim “needed help.” The student advised the victim to “get on his back and try to float” The victim tried to comply but was unsuccessful. Tragically, the victim was “struck by a wave, went underwater, and disappeared,” not to be found until three days later, when his body was recovered from the ocean.
In their wrongful death claim, the parents said the school “had a duty to exercise ordinary care in the planning and implementing of its study abroad program to avoid exposing the students to a risk of drowning.” The school replied the victim assumed the risk of drowning when he chose to swim in the ocean. The Georgia courts sided with the school.
The Court of Appeals explained that as a “competent adult,” the law presumed the victim was “aware of the risk of drowning” when swimming in the ocean. Although the victim may not have been aware of the local risks, such as the “rip currents in the waters off the beach,” under Georgia law it was “the body of water per se that presents an obvious risk of drowning, not its attendant conditions.” Unlike a public or private swimming pool, the school here had no legal duty “to provide safety equipment students during an excursion to the beach.”