By Anastasia Markie, Esq.
It’s August and temperatures are soaring. If you have a backyard swimming pool, the summer heat usually means one thing: BBQs and pool parties! Stock up on refreshing beverages…prepare the grill…get plenty of guacamole. Then invite your friends and family to come on over and let the good times roll!
Unfortunately, with great reward (i.e. all this fun) also comes great risk. What happens if one of your guests gets injured at your party? For example, your neighbor smacks his head after grabbing a faulty railing. Your best friend trips on a hole in your yard and breaks her leg. Someone’s kid slips and falls in your slippery pool area. Or—the worst possible scenario—someone drowns in your pool. Then what? Unfortunately, you may be slapped with a premises liability and/or negligence lawsuit. And that’s no fun at all.
What situations can expose you to a premises liability lawsuit?
“A homeowner has a duty to exercise ordinary care in the management of his/her premises in order to avoid exposing persons to an unreasonable risk of harm.” ( Brooks v. Eugene Burger Mgmt. Corp ., (1989) 215 Cal. App. 3d 1611, 1619). If your guest is injured due to an unsafe or defective condition on your property, you may find yourself as a defendant in a premises liability lawsuit. To avoid this liability, here’s what you need to do:
You must warn guests about dangers – If you know of a dangerous condition, you have a duty to warn your guests about it. For example, if you know that the flooring around your pool gets slippery when wet, you should take measures to warn your guests of this danger. If you know one of the pool railings is not properly secured to the ground, you should ask your guests to not use the railing. Or, better yet, post a “Do Not Use – Broken” sign. Actions like these show that you care about your guests’ safety. After all, you took steps to ensure their safety while they used your pool.
What if you didn’t know that a dangerous condition existed? Say, for example, your pool man broke the pool railing and didn’t tell you about it. Do you still have a duty to warn? Naturally, if you don’t know about this problem, you can’t provide a warning for something you are unaware of yourself. However, you may still have a duty to warn if you reasonably should have known about the problem had you simply conducted periodic inspections of the railing or taken other precautionary measures.
You must provide for the safety of all your guests – including kids – According to California law, a pool owner is responsible for providing adequate safety measures for their guests and ensuring children are properly supervised while in or near the pool. You can be held responsible for deaths or injuries of children who drown in your unprotected pool. If children are going to be unsupervised near your pool, then the pool needs to be locked and made inaccessible to them.
In 2017, the State Legislature, having concern for this risk, passed California Senate Bill No.442, known as the Swimming Pool Safety Act. This bill amended the Health and Safety Code to include additional pool safety measures. As of January 1, 2018, the bill requires pools and spas built or remodeled after January 2007 to have at least two of the following seven drowning prevention measures: a separate pool enclosure, removable mesh fencing, a pool cover, self-latching devices on pool gates, door alarms, a swimming pool alarm that sounds upon accidental or unauthorized entry to the water, or other means or protection that are equal to or great than the above.
If a pool owner fails to comply with these rules, the owner may be held strictly liable for accidents or drownings that stem from it. In other words, if your pool was built or remodeled after January 2007, and you fail to include at least two of these safety measures, you can be held responsible for any accidents or drownings that ensue.
What situations can expose you to a negligence lawsuit?
“Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” (Restatement 2d, Torts § 282.) This means that, as a pool owner, you must use reasonable care to protect your guests from injuries that may result from their use of your pool. This includes:
Warning guests of any unsafe conditions (an overlap with the “premises liability” responsibilities);
Ensuring the pool has adequate safety measures in place; and
Ensuring your guests do not use the pool in a manner that endangers their lives.
The theory of negligence also allows the injured person to bring suit against persons other than the pool owners. Unlike in premises liability, you don’t have to own (i.e. control) the property to be held liable. So liability in negligence applies to a wider range of people or entities involved in the care of the pool. This may include a pool maintenance service that fails to secure a gate lock, a distracted lifeguard, or even a construction company that failed to properly install certain safety measures. For example, say a pool maintenance person breaks the pool railing and leaves without fixing it. If someone gets injured because of that railing, they may bring a negligence suit against the pool maintenance company and the pool owner.
Have a pool? Be careful!
Labor Day—and Labor Day pool parties—are just around the corner. If you are a pool owner, be especially diligent. Take extra care to prevent injuries by keeping your pool areas safe from common dangers. Additionally, be mindful of your guests’ alcohol consumption while in the pool area. If a guest gets injured in the pool area after consuming too much alcohol, a pool that was otherwise made safe may still expose you to a lawsuit in premises liability and negligence.
For more information about California’s pool safety requirements, please visit http://www.leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB442
