Pezzano Mickey & Bornstein June 2019

JUNE 2019

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Perspectives PMB


As summer nears, many of us are excited to cool off in the pool. Whether you’re hosting a pool party or attending one as a guest, it’s important to keep pool safety top of mind. No one likes to taint the enjoyment of a day at the pool by thinking about the bad things that could happen, but safety responsibilities fall on all parties in attendance. Contrary to what many people think, a property owner is not responsible for pool injuries simply because they occurred on their property. For the owner to be liable, the injuries must be the result of a dangerous condition, but even that alone doesn’t impose legal responsibility on the property owner. A property owner’s duty is dependent upon the status of the injured person. Someone swimming at your home would be considered a social guest, and the general rule with social guests is that they must accept the property as they find it. As the host, you have no obligation to make the property safer for guests than for yourself, and you are not required to inspect the property for defects that might result in injury to your guests. On the other hand, if you know or have reason to know of a condition that could pose an unreasonable risk of harm to a guest, then it’s your duty to make the condition safe or to warn them of the risk involved. If a guest knows or has reason to know of the condition and the risk involved, the host is not responsible.

pool. The guest admitted that he knew not to dive into shallow water and that he knew, from using this pool on 20 prior occasions, that the pool floor sloped from shallow to deep water. On the day in question, he misjudged the point at which the pool was deep enough for diving. The court decided in favor of the homeowner, pointing out that the duty to warn a social guest of a known, dangerous condition on the premises is not imposed when the guest is aware of the condition or would observe it. But the dissenting opinion in the case pointed out that because the risk of serious harm in this situation is so great and the means of avoiding it, such as putting up “no diving” signs, would have been so easy, the homeowner should have been held responsible. While there is no standard or law that requires warning signs on residential pools, the duty of a homeowner is fact-sensitive, so the decision could go the other way. If you are a pool owner, take precautions to eliminate or reduce the risk of injury to guests. Especially when it comes to children,

the risks are greater, and the likelihood of the homeowner being legally responsible for injuries increases in those cases involving children.

The Red Cross recommends every pool owner do the following:

Secure your pool with appropriate barriers.

Designate a water watcher and stay in arm’s reach of young children. Install anti-entrapment drain covers and safety releases to protect against drain entrapment.

If a child is missing, check the water first.

As fun as pools are, they come with risks, and it’s vital to minimize them as much as possible. Enjoy your summer by staying safe! And if you need any legal help concerning pool safety, reach out to us. We’re here for you. –Wendy Bornstein

Real Life Pool Incident

In one New Jersey case, a guest at the defendant’s home was seriously injured as a result of diving into the shallow end of the | 1

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