As the swimming pool season rapidly approaches, associations, managers and contractors are busy with the maintenance issues involved in getting their pools ready for the Memorial Day onslaught of owners, renters, children, and guests. Most associations do not perform a swimming pool legal checkup; however, with the proliferation of lawsuits and regulations, there are sound reasons for doing so. Unfortunately, attorneys can–and usually do–find cause for concern with everything, and swimming pools are no exception. However, as with all advice, professional or otherwise, it is up to the reader to listen to the advice and decide what to pay attention to and what to ignore.
An association interested in performing a swimming pool legal checkup should consider the following:
• Review pool rules and regulations. Eliminate all rules that discriminate against children or in some manner single them out for special treatment. HUD has become particularly hard, especially in the last couple of years, on associations that discriminate against children. “Adult only” pool hours, rules prohibiting children from playing ball or frisbee and similar rules are no longer legal. Special care should also be taken with rules requiring that children under a certain age be accompanied by an adult. Rules should be distributed to all owners and residents.
• Review adequacy of signage. It does little good to establish pool rules if those rules are not written in an understandable manner and posted in an area everyone can see. Have both adults and children read the signage for clarity.
• Physically inspect gates, locks, and fences. This should be done with your maintenance personnel to ensure they are in proper working order. Consider “employing” the services of a child to assist with the inspection as children have an innate ability to gain access to premises that adults would consider impenetrable.
• Conduct insurance inspection. Physically inspect the pool area with a representative from the association’s insurance company if one is available and willing to come out. This person may be able to advise you of ways to reduce the association’s exposure to liability, such as having a telephone that is immediately accessible in the event of an emergency.
• Review liability insurance. It is difficult to determine how much liability is sufficient to protect associations against pool-related incidents such as slip and falls and drownings, but input from the association’s insurance agent should be obtained, and boards should consider whether to raise the limits of liability. Given the size of jury awards in the past several years, coverage for even one or two million dollars may be insufficient.
• Review municipal/county ordinances and regulations. Most municipalities and counties regulate fences and gates surrounding pools; however, the type of fence (e.g., height, material, spacing, etc.) that is required varies widely from jurisdiction to jurisdiction. County health departments also impose a variety of regulations concerning chemicals and water purification.
• Review safety procedures and equipment. If your association employs lifeguards, review and verify their training. Be certain they are familiar with your association’s pool, equipment, rules and safety procedures.
• Review pool maintenance contract. In addition to the standard “boilerplate“ language that should be included to protect the association, the contract should also require the contractor to indemnify and hold harmless the association in the event of injury or damage resulting from the negligence of the contractor.
• Establish/review written procedures for purifying water. This should include appropriate amounts of chlorine and other chemicals and maintenance to ensure proper operations and efficiency of the pool filtration system. As Multiple Chemical Sensitivity Syndrome claims continue to grow and as new concerns related to disease continue, associations should rely on experts to assist them with written procedures. It is only a mater of time before an owner sues or threatens to sue an association claiming he/she has a reaction to the pool chemicals and is therefore entitled to reasonable accommodations under the Fair Housing Amendments Act based upon this “disability.”
• Review labor laws. This should include workers compensation coverage, minimum wage laws, required breaks, overtime and other employment-related issues if you have employees or independent contractors.
• Review ADA requirements. Review the Requirements of the Americans with Disabilities Act (ADA) if you make your pool available to nonresidents, as this probably makes the pool a place of public accommodation and therefore subject to ADA requirements.
• Review authority of pool monitors. If you utilize the services of “pool monitors” be certain they receive training that covers pool rules, what authority they have to enforce those rules and safety procedures including summoning emergency assistance. Be certain you do not use the word “lifeguard” if your pool monitors are not trained and certified as lifeguards.
Associations that take the time to perform the items on this checklist will go a long ways toward avoiding incidents that would result in liability.