When a swimming pool accident occurs and the owner/operator of the swimming pool or swimming pool facility acts in negligence, they can be held liable for any injuries that result from the accident. When a swimming pool accident is the result of a defective product, the manufacturer, distributor, and/or seller of the product may be held liable for the injury.
Negligence, Negligence Per Se, and Premises Liability
Negligent actions are any actions in which a person fails to do what the average person would do in the same situation. A pool owner/operator has a duty of care: a duty to provide a safe environment to swimmers. The standard for this care is based on the expected care that an average person would provide in the same situation. When a pool owner/operator fails to provide this care, they are said to be guilty of negligence.
Negligent Supervision: Negligent supervision is one of the most common arguments of negligence in swimming pool accident lawsuits. Negligent supervision primarily applies to publicly operating facilities with staff such as public pools, club pools, waterparks, etc. When a swimming pool accident occurs and the swimming pool owner/operator fails to provide adequate supervision for swimmers, the owner/operator is acting negligently and can be held liable for any injuries resulting from the accident. The owner/operator may also be held liable if the supervision provided does not meet other expectations such as supervisor training or pool supervision certifications. There are specific laws and regulations which mandate the number of supervisors required at a publicly operating facility, as well as the necessary training required for said supervisors. Negligent supervision may also apply to privately owned pools when the owner of the pool fails to provide adequate supervision for invited swimmers. There is an expectation for private pool owners to provide adequate supervision based on the pool owner’s duty of care to invited swimmers.
For example: A private pool owner has a birthday party and invites over 30 of the neighborhood children to swim. The owner is not trained in first aid, swim rescue, or lifeguarding, but there is an expectation that adequately trained supervision will be provided in order to mitigate the likelihood of an incident. If the owner decides to supervise all 30 children himself, and one of the children suffers an injury, the pool owner can be held liable based on negligence because he did not meet the duty of care.
Negligence Per Se: Also known as strict liability, under negligence per se, a pool owner/operator who violates any laws regarding pool premises is directly liable for any damages that the injured party incurs. State laws and local regulations mandate that property owners who have a pool are required to take necessary steps to mitigate any possible swimming pool accidents on their property, whether it be an invited guest or non-invited trespasser. Failure to meet these standards can result in the property owner being held liable for any swimming pool accidents that occur on their property based on negligence. These requirements differ state-by-state, so it is important to familiarize yourself with your state’s laws and regulations surrounding swimming pools. Generally, there are a few standards that almost all states require:
- A barrier of a certain height, such as a fence, surrounding the pool
- No gaps, openings, or damages in said barrier
- A lockable gate for said barrier
- Pool entrance and exit tools, such as stairs and ladders
- Covers for unoccupied pools
- Pool warning labels, such as “do not dive signs” in certain areas of the pool
- Functional and safe pool lighting systems
- A certain number of staffed lifeguards at public pools
- Pool drain covers and functioning safety systems
When a pool owner/operator directly violates the laws and regulations of pool premises, the injured party can argue negligence per se, which is a very strong argument of negligence.
For example: State law mandates all waterparks have at least two trained lifeguards on staff for every pool on site while in operation. During a very busy day, the waterpark decides to staff one lifeguard at the least popular pool, while staffing a third lifeguard at the most popular pool. There is an accident at the least popular pool and a young child suffers a head injury. Because the waterpark directly violated the state law of having at least two lifeguards on duty, the victim has a strong argument of negligence per se against the waterpark.
However, not all pool premises liability claims fall under negligence per se.
Pool Premises Liability: When the pool owner/operator fails to provide a safe environment but does not directly violate any laws or regulations, they may still be held liable based on premises liability if the premises can be deemed unsafe.
For example: A pool facility has a diving board on the deep end of the pool. The diving board has a 200lb weight limit, but there is no warning sign about the 200lb limit clearly displayed for swimmers to see. A 250lb man, unaware of the diving board’s weight limit, jumps on the board, which breaks. The fiberglass on the board badly cuts the man. In this case, the pool owner/operator could be held liable for the man’s injuries because they failed to provide safe premises for swimmers.