Safety and Legal Liability Regarding Swimming Pools
Our association has a swimming pool which is fairly popular with our owners, many of whom have small children. We are concerned about safety and legal liability and whether or not we are protected by our rules and our insurance policy. What are the essential practices and rules that will keep us out of legal trouble? How much do we have to worry about our insurance company saying "sorry, you're not covered for that"?
A: You are surely right to be concerned about these risks because every year associations are the target of claims for injuries in and around the swimming pool. Our sources tell us that about 70% of associations have pools and it is well known that the real estate/development community believes they are an essential amenity to insure strong buyer interest. We have seen some associations close and remove pools due to inadequate use so as to eliminate a significant expense and risk, however many pools, like yours, are a desirable and highly utilized feature of the community.
Boards of directors must recognize that pools are dangerous in various ways and seek to establish rules and practices that will minimize the risks. This is essential to be exercising adequate fiduciary responsibility which will avoid legal liability in the event of a bad accident. The various municipalities set their own standards in many ways, including chemical requirements, self inspection, record keeping, equipment, fencing and city inspections. These regulations only establish minimum requirements but go a long way toward eliminating substantial risk. You may have special circumstances which require a greater level of care, such as an inordinately high number of young children. This may dictate having more lifeguards or longer lifeguard hours. You must also insure that depths are indicated along the side of the pool.
The board may want to appoint a pool committee responsible for reviewing and updating the rules, rule distribution, periodic inspections, and overseeing the pool contractor. It should go without saying that a thorough inspection of the pool, its equipment and all physical aspects should be thoroughly inspected before opening each year and a record made of that inspection. This extends from the fence to the lavatory facilities. You should not simply assume that since you hired a pool contractor that you have shed all legal responsibility for pool safety, although your pool contractor should be a good source of information on safety standards. We suggest that you check out suggestions of pool safety experts to help you evaluate operational deficiencies at your pool. For instance, excessive pool hours is considered a deficiency - some experts recommend hours from noon to dusk.
The Committee or some appointee of the board must insure that rules are being enforced. This includes making sure that the rules are not only posted but distributed annually to all residents - including tenants using the pool. The board or a committee should also consult with counsel periodically to insure that the rules comply with federally mandated rules relative to protected classes, such as handicapped persons.
If you follow these suggestions you should not hear your insurance agent tell you - "sorry you are not covered". Such a statement could result if you have failed to follow state or local laws or regulations or have been grossly negligent in overseeing the creation and enforcement of adequate rules or maintenance of the pool facility.
Operating a community pool is no simple task in any respect and requires serious attention on a constant basis during this season of the year. We recommend having a manual that dictates the responsibilities of the pool committee and/or board member liaison to the pool contractor. If you have professional management, responsibility for pool operations should be clearly spelled out in the contract. Following these guidelines will hopefully lead to a safe and pleasant summer of swimming pool enjoyment.