Summertime is upon us, and personal injury lawyers are cautioning homeowners that swimming pools can be a serious liability if proper safety precautions are not enforced.
Though drowning is an obvious swimming pool danger, many other serious accidents and catastrophic injuries include those from slippery walkways and decks, dangerous filters and drains, diving boards and ladders, and electrical shock. In addition to drowning, injuries may include traumatic brain injury, neck injury, spinal cord injury, and organ damage. And with these injuries, come lawsuits.
Your first line of defense is your homeowner’s insurance policy. Read it over with a keen eye on (1) what damages and injuries it covers and (2) what it requires in the way of safety measures. Make sure it does not specifically exclude liability for any injury related to the pool. Also consider purchasing (or switching to) an umbrella policy, which provides liability coverage over and above what's offered by a standard homeowner policy.
If the injured party still decides to pursue litigation, your second line of defense (literally) is summary judgment. For a person to be liable for another person's injury, the cause of that injury must be of such a character and done in such a situation that the actor should have reasonably anticipated some injury as a probable result. In other words, plaintiff(s) must show that a private pool owner was negligent for drownings or injuries arising out swimming accidents. A negligence claim has four elements: duty, breach of duty, causation, and damages, and a plaintiff must present sufficient evidence on all four elements of the claim to carry the burden of going forward – definitely not an easy feat.
In most cases, the pertinent question becomes whether a host has satisfied his or her duty to warn a particular guest. However, because a host needs only warn of dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware, the answer to that question will usually be “Yes!” (Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993); see also Berger v. Shapiro, 30 N.J. 89, 97-98, 152 A.2d 20 (1959).) For example, in New Jersey, the court found that defendants did not have to warn their brother-in-law plaintiff about the configuration of the pool's depth because evidence showed that plaintiff was well aware of the deep ends in the pool due to swimming there on prior occasions. Although the same argument may not hold up in a pool-a-palozza scenario, a homeowner generally wins on summary judgment.
This piece was written by Nora Devitt, law student at St. John’s University School of Law.