If You Have a Pool, You Have a Duty: Pools are wonderful recreational additions to homes, but they are also extremely dangerous. The number of swimming pool liabilities is staggering. Most of us know that creating a barrier between your pool or spa and home is necessary to keep accidental drownings from occurring. But did you know that you may be required by law to take steps to safeguard your pool?
If a child drowns in your pool you may, at a minimum, face civil liability for that injury or death….even if that child was trespassing on your property and even when a parent or guardian was present. Homeowners have a non-delegable duty to keep your guests safe from dangerous conditions on their property. This is a legal concept known as premises liability and is well established law. (Cal. Civ. Code 1714 (a).) A POOL IS ALWAYS A DANGEROUS CONDITION. Financial swimming pool liabilities for a drowning on your property can extend well beyond your homeowner’s insurance policy limits.
One way to protect yourself from facing swimming pool liabilities for drownings that occur on your property and, more importantly to save lives, is to implement the protections mandated by The Swimming Pool Safety Act. (Health and Safety Code § 11592 et. seq.) If your swimming pool was built after January 1, 2007, you are required by law to implement the provision of the Act, but every home with a pool should be following the safety standards outlined in the Act.
The Swimming Pool Safety Act requires that any pool or spa built or remodeled after January 1, 2007 must be equipped with at least one of the following drowning prevention safety features:
- Pool/Spa should be separated from the home by an enclosure or fencing: with a) a self closing AND self-latching gate that b) opens away from the pool c) that is at least 60 inches high d) with no gaps and only two inch clearance from the ground with e) no physical characteristics that would only a child below the age of 5 years old to climb. If mesh pool fencing is used, it must also accommodate a key lockable device.
- The Pool/Spa shall be equipped with an approved safety pool cover
- The home shall have exit alarms that are audible and continuous on all doors and windows providing direct access to the pool/spa.
- Doors providing direct access from the home to the pool/spa shall be self-closing AND self-latching.
- Pool/spa must be equipped with in-water approved alarms that alert accidental or unauthorized entrance into the water
- Pool/spa must be equipped with anti-entrapment grates on suction outlets and drains.
If your pool or spa does not have at least one of these safety features you are putting the children in your life at risk. Recently, a California Judge opined that even when a home does not fall within the parameters of the Act, its enactment establishes the policy of the state to impose the burden of safeguarding their pool on homeowners. The burden of time and money spent by the homeowner is outweighed by the benefit to the community of saved lives. The court also stated that it was unreasonable to believe that a child would never be on a property. (Johnson v. Prasad, (2014)224 Cal.App.4th 74.)
Cottle Keen Lopiccolo & Heyde, LLP works in conjunction with the Jasper Ray Foundation for Drowning Prevention and Child Safety, which is a 501(c)(3) non-profit organization dedicated to spreading awareness and education about drowning prevention. It was formed in the wake of the drowning death of the Founder’s 21 month old son, Jasper, while in the care of his babysitter.
The Jasper Ray Foundation recommends that homeowners have the proper barriers around their pool regardless of whether children are on their property regularly. If children are present often, pool owners should have a barrier and alarms. Remember, the implementation of these safety features do not replace proper supervision of children. If you would like more information on drowning prevention and water safety, please visit www.jasperray.org.
Following the steps outlined above will help limit your swimming pool liabilities should a child drown on your property, and minimize the potential for a lawsuit. Not only will these actions allow you to fulfill your duty as a homeowner, it will make your home a safer place for children to play.
Cottle Keen Lopiccolo & Heyde, LLP, would be happy to help you comply with the Act and save lives. Please contact us for a consultation.
Remember, drowning is preventable!
Partner, Cottle Keen Lopiccolo & Heyde
Co-Founder, Jasper Ray Foundation For Drowning Prevention and Child Safety