Pool owners, whether at a private residence, a private club or in a public setting, can potentially face liability when a swimmer or visitor to the pool is injured. However, the owner is by no means automatically liable for any injury that occurs in or around the pool. This article discusses the laws and other factors affecting when liability for a pool injury does and does not exist.
Because a pool is considered part of the property it’s located on, premises liability rules will typically apply in a pool injury lawsuit.
“Premises liability” is the short-hand term for the set of laws used to determine who (if anyone) is liable when a particular condition or use of a building, land or other premises causes an injury.
Although the rules vary somewhat from state to state, premises liability usually recognizes three different types of “entrants” on the land (trespassers, licensees and invitees) and different degrees of care owed by the owner to each type of entrant. Although the degree of care may shift depending on the entrant, and even in those states that no longer distinguish among categories entrants, the pool owner’s duty is broadly stated as the duty to make the pool reasonably safe for anticipated use.
Patrons of pools that are open to the public, whether for a fee or free of charge, are usually classified as “invitees.” Pool owners are under a duty to do a reasonable job maintaining and repairing the pool so that invitees are not injured.
Social guests using a pool on private property are usually classified as “licensees.” Pool owners are under a duty to warn licensees of dangers that are not obvious to the average person.
A pool owner does not owe a trespasser a duty of care, other than to refrain from causing the trespasser intentional harm. A major exception to this rule is when the trespasser is a child.
Under the attractive nuisance doctrine, pool owners are under an obligation to keep the pool safe from young children who do not understand the danger of drowning. This includes a duty to prevent access to the pool, for example with a fence, when young children might otherwise be able to enter the pool. Not all states follow the attractive nuisance doctrine, however.
Regardless of whether a pool patron is an invitee or a licensee, certain risks, like slippery surfaces around the pool and the danger posed by diving from inappropriate places, are too obvious to create liability for the pool owner.
However, if it is not obvious that a pool is too shallow for diving, or if the pool has hidden obstructions, failing to warn invitees or licensees could make an owner liable.
Additionally, the owner of a pool that is open to invitees like club or hotel guests could be liable for failing to provide emergency safety equipment like life preservers. Equipment like ladders, diving boards and drains must not be allowed to fall into a dangerous state of disrepair without adequate warning to users. Finally, the owner of a large pool that is open to the public, particularly a public pool owned by a municipality, may be held liable for failing to provide adequate supervision or life guards. Keep in mind, however, that government agencies in charge of a public pool may be protected from lawsuits by the doctrine of governmental immunity.
Premises liability rules will not apply to a defendant if the lawsuit is based on an injury caused by the defendant’s intentional or negligent behavior while also using the pool. For example if the defendant holds the plaintiff’s head underwater, the plaintiff could sue for battery. If the defendant jumps in without looking and lands on the plaintiff, the plaintiff could sue for negligence. Standard intentional tort and negligence rules would apply, as well as contributory and comparative negligence rules and defenses like assumption of the risk.