By Attorney Stephen Gorey
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Newspapers, radio and television spots beat a constant drum that these tragedies only happen when parents don’t live up to their role as loving parents. There is simply no escape from the constant reminders and unending heartbreak.
And the sad part about this assault on the grieving parents is: IT IS SIMPLY NOT TRUE.
If you have ever been a parent you know that children can be little escape artists, capable of disappearing acts from time to time. If you are not a parent, think back on your own childhood. Chances are you can remember having escaped a parent’s side at some time. No parent can watch a child every second and these accidents can happen in mere seconds.
For this reason, the law looks differently at the situation. The law recognizes that even the most vigilant parent can lose sight of a child and for that reason the law makes the care of children the duty of society and especially the duty of people and companies that make a profit in the swimming pool industry.
Everyone in society is charged with looking out for other people’s children in some fashion. We have to slow down in school zones: we don’t simply tell parents they have to hold their child’s hand from home to school door. We have to stop for stopped school buses: we don’t simply tell parents they have to ride the bus themselves with their children. We have to keep dangerous objects such as knives away from the lower shelves in stores: we don’t simply tell parents it is their obligation to hold both of their child’s hands at all times. We have to build hotels with windows that cannot be opened by children: we don’t simply tell parents to make sure their child doesn’t fall to their death.
It is no different with swimming pools. In the pool industry (the “aquatics industry”), the guiding principle is embodied in the phrase: “LAYERS OF PROTECTION.” Depending on the situation, different people and different companies owe a duty to provide a layer of protection to a child in a pool. The legal principle is that if one layer of protection breaks down, another must be in place to safeguard the swimmer. If that second layer breaks down, then another safeguard must come into play. The number and type of layers of protection depends on the nature of the pool.
The first line of protection is easy to see. It is the child’s custodian, whether it is a parent, a babysitter, a teacher, etc. It is the various layers of protection beyond that which I want you to know about.
The following list is very, very brief and I have mentioned only a few of the cases I have handled to give you an idea of this concept.
The Backyard Pool
The owner of a backyard pool is required by law in many cities and in many counties to comply with codes requiring an inner fence around the pool. It is not enough in these areas to simply have a fence around the property. Fences of certain heights with self closing and self latching gates are often required so that children cannot get into the water unattended.
The designers of backyard pools are accountable to take care that the slope from shallow end to deep end is not too steep. Night lights have to be designed with enough brightness to allow a child in distress to be seen on the bottom of the pool.
The makers of pool covers are accountable to take care that the cover can be properly anchored in such a way that a small child cannot walk out on it and slip under and drown. For example, I handled a case for a child who walked out on a pool solar cover which gave way and drowned him. The pool cover manufacturer was held largely responsible. The company’s own tests showed that the lack of a way to anchor its cover could lead to such a drowning.
The companies that sell and construct pools need to take care with the kind of suction filters used so that a child’s hair or limbs can’t get caught and drown them.
Makers of backyard pool accessories have to make sure that slides aren’t designed in such a way that a child can hit their head and get knocked out as they enter the water.
Makers of “water wings” and “floaties” need to make it very clear that these are not life preservers and can actually cause danger to small unattended children.
The Neighbor’s Pool
Water attracts children. Child trespassers (picture a toddler getting through a loose board in a neighbor’s fence) need to be protected also. The amount of care that a pool owner must take to child proof the pool will usually depend on the pool owner’s knowledge that a child can get into the pool area. In a case I handled for a child and his mother, a neighbor let his backyard fence get into state of disrepair and a toddler got through a narrow opening while the mother was very briefly in the bathroom. The child walked straight into the neighbor’s unprotected pool and suffered catastrophic brain damage. The neighbor was held largely responsible both for the loose board and for the unprotected pool.
The Apartment and Hotel Pool
Apartments and hotels install pools for one reason and one reason only. It makes them money because vacationers want to use or to sit out by a pool.
Practically every city and county has codes (laws) governing hotel pool safety. These are simply minimum standards and hotels must go beyond these rules if necessary to make their pools reasonably safe. The violation of one of these city, county or state codes is automatically considered negligence (legally called “negligence per se”) and if the violation caused or contributed to a drowning, the hotel is responsible. This is the “layer of protection” in case the child escapes from the parent (such as when a parent has to take a nap and a child sneaks out to the pool). Just a few examples of the safety precautions hotels typically have to take are fence and gate requirements, pool floor slope restrictions, safety rope requirements, pool deck material requirements to prevent slipping, appropriate warning signs, adequate underwater lights at night, attendants to check the pool for unattended minors.
Another “layer of protection” involves rescue equipment. These typically include a pole and hook to pull children off the bottom or out of deep water, a pool side telephone to call 911, someone on staff trained in CPR, and in appropriate situations a lifeguard.
Shortcomings in these areas lead to tragedies. For example, in one case I settled during trial a mother had been taking a nap in a hotel and her children went to the pool without her permission. The hotel’s underwater light was out and in the darkness an older child failed to see his younger brother in distress and the child drowned. The hotel was primarily responsible because the pool should have been locked at dusk to prevent children from entering if the underwater night light wasn’t working.
Also for example, in another case I handled, an apartment let its self latching gate fall into disrepair. The apartment owner knew of the problem but did not fix it for almost a week and a small child got out of the apartment while his mother was cooking and got into the pool and died. The apartment owner was held responsible.
The Community Pool
Pools such as at a YMCA, a municipal pool or a gated community pool, have much the same duties to provide layers of protection as a hotel, but usually must also provide lifeguards.
Lifeguards need to be properly trained and equipped and often aren’t. Charged with lifesaving, too often they are 15 or 16 year old teenagers at minimum wage. Even if taught CPR, they are emotionally unprepared for the stress of a true tragic emergency. Community pools that employ unsuitable lifeguards are responsible for those lifeguards’ failures.
However, even the best lifeguards can lose their concentration if not given procedures by the pool operators to walk every so often, to avoid eye strain, to have enough breaks to avoid boredom and fatigue, and to be positioned so that reflections and deflections of light do not obscure their vision. Chairs need to be set at appropriate heights and at appropriate vantage points.
Duties of Water Parks
The duties of water parks are similar to that of community pools but there are certain dangers that have to be particularly guarded against. The most obvious is that having crowds of people create visual obstacles to seeing a child on the bottom. The training and positioning of lifeguards has to be of the highest caliber. Water clarity has to be maintained so that the bottom is always visible. The bottom of the water park should be a color that makes spotting a child underwater easier to see. Slides have to be constructed in a way that they do not cause injury during use and do not allow sliders to topple on top of each at the bottom.
These are only a very few of the vast number of situations that can arise and of the duties that the various kinds of pool owners must fulfill. The one concept I hope you take away from this is that pool accidents are rarely the sole fault of a parent. Pools are too dangerous and children are too active to be the sole responsibility of parents. The law recognizes this and justice demands it.