We all enjoy an occasional dip in the pool, but how far does a homeowner need to go when it comes to swimming pool safety?
For most hotels and apartment complexes, satisfying this task and providing a safe environment for those who choose to spend their day at the pool can become a burden. Commercial swimming pools are especially cautious about safety and for very good reason; liability. While everyone's overall safety is important, there are certain things that every pool owner needs to do to ensure their pool is not considered an attractive nuisance to children.
Under the attractive nuisance doctrine, a property owner can be held liable for any injuries or deaths to children resulting from an object on the land that would reasonably be attractive to a child. Essentially, this law of torts is designed to protect children (who are unable to appreciate the risk posed) who trespass onto another's property. A hotel, an apartment complex, and even a homeowner can be held civilly liable for damages if the child's injury or wrongful death resulted from what is deemed to be an attractive nuisance.
What is an attractive nuisance?
The theory behind this doctrine stems from the ignorance children have toward certain foreseeable dangers. We as adults can see the potential dangers that loom in areas such as swimming pools, but many young children cannot. Liability when it comes to an attractive nuisance claim generally depends on the following three factors:
- Was the injured party a child (under the age of eighteen)?
- Was there an attractive nuisance?
- Did the owner take reasonable precautions to prevent children from foreseeable harm?
A child's injuries that result from the owner's lack of awareness or protection is disfavored and frowned upon in court. The idea is that because a child cannot appreciate or understand the dangers, responsibility falls to the property owner to reasonably mitigate any danger to trespassing children. Here are a few important factors to consider:
An attractive nuisance is any potentially unsafe object that would reasonably be attractive to a child. When evaluating whether something is an attractive nuisance or not, courts usually look to the victim's age and ask, "would it be reasonable to imagine a child of this age being unable to appreciate the danger of this object?" Reasonableness is determined by an average care, skill, and judgment of a child within that same age. So, for example, a four-year-old's mind and activities would likely be judged against another child ranging from the age of four to six, and not a child ranging from the age of fourteen to sixteen.
Reasonableness is also determined by foreseeability. An event or occurrence can be foreseeable if it produces anticipated results. So, would it be foreseeable that a child could gain access to the pool unsupervised? Is an unsupervised child at risk of drowning in a swimming pool? If a jury can be convinced that the property owner didn't do enough to safeguard the pool, they'll likely be held liable for any resulting damages.
Next, the court will look at the pool and ask, "would a reasonable child be attracted to this?" Attractiveness can be subjective, but most courts take the objective approach and assess certain factors such as the structure of the property and overall access. Something that is open and free is generally considered more attractive than something that is closed off or gated.
How do I safeguard my pool?
Swimming pools are at the top of the attractive nuisance list. Injuries can range from minimal (spraining a muscle), substantial (fracturing a bone or tooth), or even severe/fatal (drowning in the pool). So, what are some of precautions that property owners can take in order to protect children from harm and shield themselves from liability?
- Provide warnings — Having safety warning around the pool area which highlight the dangers to patrons can go a long way when it comes to premises liability claims. Warning signs such as "slippery when wet" or "no running" may not stop a child from disobeying the rules, but it does at least show that you made some attempt to minimize the danger of a slip and fall accident within the swimming pool area.
- Provide restrictions — Certain restrictions (such as requiring a child to always be accompanied by an adult) can help ensure a safe overall experience. Enforcing this rule, and others like it, can reduce the likelihood of an injury or drowning by magnitudes. Other restrictions (such as rules prohibiting alcohol use or using the swimming pool area after hours) can also ensure the safest environment for children within the swimming pool area.
- Lock the gate — The last and most important precaution one can make toward ensuring a safe swimming pool is a secure gate. After hours, owners should make sure the gates around the swimming pool area are locked every night. If you have an above-ground pool, help mitigate unauthorized access by locking or removing the ladder and using a secure pool cover.
Sadat Montgomery is a Dallas personal injury attorney who takes pride in not only getting his clients the compensation they deserve, but also in ensuring his clients receive the medical care they need following a serious injury. Sadat primarily handles personal injury and wrongful death cases, [...]