By Dean A. Reeves, Esq.
According to a survey conducted a few years ago, there are approximately 1.18 million residential swimming pools in California. These backyard swimming pools can be the source of great fun, exercise, and entertainment, particularly during these hot summer months. However, they can also be the source of some very catastrophic injuries, particularly for children. In fact, according to the California Department of Developmental Services1, drowning is a leading cause of injury-related deaths among California children ages four and under, with an average of more than 52 new deaths per year, with two-thirds of all drowning accidents occurring between May and August. In addition to accidental drowning, use of a swimming pool can result in slips and falls, that could lead to broken bones, fractures, traumatic brain injuries, or paralysis. Injuries may also be caused by large pool toys, use of a diving board, or the suction force of the pool’s drain, especially in hot tubs.
California no longer follows an “attractive nuisance” doctrine. Instead, California property owners now have a general duty to keep their property in a reasonably safe condition. Accordingly, it is prudent, and under some conditions legally required, for homeowners to take reasonable steps to minimize these potential risks and avoid claims that are likely to arise from such injuries. In the event that someone is injured in connection with use of a swimming pool and decides to seek damages through litigation, such claims will usually be asserted as causes of action for negligence and premises liability. The primary question to be determined in such cases is the nature and scope of the duty of care that was owed by the homeowner to the injured party.
Duty of Care
Under common law, a homeowner’s duty of care owed to persons on their property could vary based on whether the person was an invitee, a licensee or a trespasser. The Courts in California, however, no longer rely simply on those rigid classifications to determine a property owner’s duty of care and whether the actions or lack of action by the property owner can result in liability for injuries caused by a condition found on the property, such as the existence of a swimming pool (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, 772). The determination of liability in any given case will be based on evaluations of several factors, including the relative burdens of the parties, foreseeability of the injury, the connection between the homeowner’s conduct and the injury suffered, and the injured party’s own conduct.
While not required to ensure a visitor’s safety, the general rule is that a homeowner must maintain their property in a reasonably safe condition (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674). The homeowner is also obligated to make reasonable inspections of their property to ascertain whether any dangerous conditions exist, and to use due care to eliminate such conditions or adequately warn others of their existence (Lackner v. North (2006) 135 Cal.App.4th 1188, 1197). An important recognized exception to this obligation is that a property owner has no duty to warn others about open and obvious dangers on their property because such dangers serve as warnings themselves (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126).
Even though the existence of a swimming pool can be considered a dangerous condition due to its associated risks, it is clearly a condition that is “open and obvious” to all visitors, thus no additional duty to warn should arise. But it is important to note that there may be particular dangerous conditions found in a swimming pool that would not be obvious to a visitor, such as hard to see ledges or steps below the water line that may impact a person jumping or diving into the water or a slide or diving board that is not fully functional. Such conditions may impose upon the homeowner a duty to warn others about their existence.
Specific Laws For Pool Safety
To address the potential for accidental injuries that are associated with residential swimming pools, especially drowning, the California legislature passed the “Swimming Pool Safety Act,” which became effective on January 1, 2018. Under the Act, which is now part of the Health and Safety Code, all single-family homeowners with swimming pools or spas on their properties must implement at least two of the seven listed drowning prevention safety features:
- An enclosure (fence, wall, or another barrier) that isolates the swimming pool from access to the home.
- An approved removable mesh fence with a self-closing and self-latching lockable gate.
- An approved safety pool cover.
- Alarms on doors that provide direct access to a swimming pool.
- A self-closing and self-latching device placed no lower than 54 inches above the floor on any door in a home with access to a swimming pool.
- An alarm that sounds upon entrance into the water of a swimming pool.
- Other means of protection, as long as it protects as much or more than any of these features. (Health & Saf. Code, § 115922)
Application of these statutory requirements is limited to the construction of a new swimming pool or spa, or for remodeling of an existing pool or spa, at a private, single-family home, where a permit is required (Health & Saf. Code, § 115922(a)). While a homeowner with an existing swimming pool built prior to 2018 may not be legally obligated to implement the safety features set forth in the statute, they are likely to provide some type of useful guideline for the determination of a homeowner’s duty of care to undertake reasonable steps to address foreseeable risks and injuries that may arise from their swimming pool. Additionally, a homeowner that has decided to comply with these statutory requirements, even where not applicable, may argue that their implementation of such safety measures satisfied their duty of care to any visitors to their property. These safety features should not only reduce the risk of accidental injuries but also may limit the homeowner’s liability exposure from any claims that do arise from use of the swimming pool.
Have a great summer and enjoy your pool, but always be mindful of the inherent risks that come with its ownership and use, and act accordingly.
1Cal. Dept. of Developmental Services https://www.dds.ca.gov/initiatives/drowning-prevention/
Dean A. Reeves, Esq. is a Special Counsel at Bradley, Gmelich & Wellerstein LLP with over 25 years’ experience in civil and business litigation. Dean has represented individuals and businesses in state and federal trial and appellate courts, arbitration proceedings, and before various administrative agencies. His areas of practice have included lender liability, construction defect litigation, enforcement of mechanic’s liens, real property disputes, and intellectual property, involving claims for copyright and trademark infringement as well as misappropriation of trade secrets.
Prior to joining Bradley, Gmelich & Wellerstein LLP, Mr. Reeves was the lead appellate attorney representing a general contractor in a dispute over the construction of a custom single-family residence. The appeal resulted in a published decision from the California Court of Appeal regarding the enforcement of an oral home improvement contract, and the interpretation of the statutory language that provides for the recovery of attorney fees.
Dean received his Juris Doctor degree from the University of Southern California Law Center and graduated cum laude from California State University Northridge with a Bachelor of Arts in Economics. While at USC, he served as a member of the Computer Law and Major Tax Planning Journals. He also served as a judicial extern for the Honorable Judge David V. Kenyon at the United States District Court for the Central District of California. In addition to the California Bar, Dean is also admitted to practice before the United States District Court (all California districts) and the United States Court of Appeals for the Ninth Circuit.
Dean served on the Board of Managers for the Santa Clarita Valley YMCA which included stints as the Chairman of the Fundraising Committee and Youth & Family Committee. He also started his own small business in the construction industry and spent five years as a professional custom cabinetmaker, and continues to pursue woodworking as a hobby.