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"Willful" or "Deliberate" Negligence and Drowning Accidents

As any drowning accident lawyer will confirm, most drowning accidents could have been prevented if someone had been more careful. Even though some drowning accidents are caused by the unwise choices of the victim, far more drowning accidents are the result of someone’s carelessness. In legal terms, what a layman calls “carelessness” is called “negligence.”

When an individual (or business) intentionally commits acts of negligence with the full knowledge that the consequences of the act pose a risk to the health and safety of others, an act of “intentional” or “willful” negligence has occurred. Depending on the laws of the state in which the drowning accident occurs, some negligent acts may rise to the level of a crime and could result in a criminal court conviction as well as a finding of liability for damages in a lawsuit.

For negligence to be considered “willful” or “deliberate,” the alleged act must have been made:

  • as a deliberate decision to act in a manner that lead to the victim’s accidental injury when a “reasonable” man or woman would not have acted in the same manner,
  • with the full knowledge that the act itself could be reasonably expected to lead to an injury to another, and
  • with a deliberate disregard for the safety of others.

A special category of “deliberate” or “willful” negligence is that of an act that is, itself, a crime under state law. Such acts are known as mala prohibita (Latin, “wrong because it is prohibited”). In practically all American jurisdictions, an injury due to an act that is a crime under state law is automatically deemed to be willful and/or deliberate negligence. An all-too-common example of this type of negligence is when an intoxicated driver causes an auto accident that results in multiple injuries or deaths. This driver has 1) committed a crime under state law and 2) a personal injury lawyer can use the driver’s DWI charge to prove the driver’s actions rise to the level of deliberate negligence.

Finally, and again depending on state law where the negligence and subsequent death occurred, an accidental death due to deliberate negligence can result in the negligent party being charged with involuntary or even voluntary manslaughter. Although manslaughter charges are not appropriate in all accidental deaths, such as an accidental drowning, a drowning accident lawyer could use such charges to prove that the defendant’s actions rose to the criminal level and thus justify the allegation of willful negligence.

With these definitions in mind, we can turn to how drowning accidents may result from acts of willful or deliberate negligence.

Drowning Accidents and Willful/Deliberate Negligence

In drowning accidents, the common law assumes that the owner of a swimming pool, a water park, or some other water-themed recreation area will maintain that area in a manner that will not pose a danger to its patrons. This includes making sure that qualified lifeguards, emergency medical personnel, or personal water safety devices such as life-preservers are always available in case of an accident. If the owner or the owner’s agent (such as a manager or employee) does not take such steps and a drowning accident occurs, the owner can be held liable for damages.

In the above example, a court would probably assume that whatever lapse in common safety precautions was unintentional because a drowning accident could result in a loss of business income, which a reasonable business owner would want to avoid. But what if the owner was aware of some shortcoming yet took no steps to remedy that situation?

Suppose that the situation in the above example is the same but the owner has been notified, on previous occasions, by a city inspector that he (the owner) is in violation of city water safety regulations but the owner has deliberately failed to correct the situation. If, as a direct result of the owner’s deliberate and willful actions, someone drowns and that drowning could have been prevented had the owner complied with the city safety regulations, the owner could be found to have been willfully negligent and will most likely be ordered to pay the victim’s next of kin a substantial damages award.

In closing, in many instances of accidental drowning there is some degree of negligence involved. In most cases, such negligence was unintentional or the result of some tragic lapse in judgement. If, however, the drowning was the result of a deliberate failure to correct a situation that could have been reasonably expected to cause an injury, a drowning accident lawyer may ask a jury to find that the drowning was the result of willful negligence, placing the defendant at risk of being ordered to pay a very substantial amount in damages to the victim’s survivors.

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