A study conducted by the Center for Disease Control ("CDC") found
there to be were approximately 3,533 fatal "unintentional drownings
(non-boat related) per year in the United States. Accordingly, about ten
people die every day as a result of swimming related accidents. The CDC
study also found that the main factors influencing this drowning risk
include: lack of swimming ability, alcohol use, location, and more importantly
lack of barriers as well as lack of close supervision. In addition to
inadequate fencing or barriers, the likelihood of swimming pool deaths
is severely increased as a result of broken or unsecure gate latches,
inadequate pool depth markers as well as inadequate safety warnings.
Due to the heightened hazard associated with swimming pools, New York State
has implemented laws to ensure safeguards and preventative measures are
being taken to minimize these risks. For example, a federal law regulating
drain covers at all public and "semi-public" (pools offered
to guests at hotels etc.) went into affect nation-wide in 2008. This law,
known as the "Pool and Spa Safety Act" mandates that these types
of pools install anti-drowning covers on their pool drains to prevent
deaths of small children who become held underwater by uncovered drains.
This act and many others similar to it have been implemented in an effort
to make pool areas safer to those who use them. As a result, property
owners in New York have a legal duty to properly supervise, manage, and
operate their property to avoid any unnecessary risk of harm to others.
However, if proper precautions are not taken, commercial pool owners as
well as residential pool owners can be held liable for injuries stemming
from pool related accidents on their property.
When an accident resulting in injury occurs at a public swimming pool,
it is important to determine the underlying cause of the injury at issue.
If the public pool did not have a lifeguard on duty, or if the lifeguard
failed to take proper action due to inattention, then the owner of the
premise will likely be held liable for the injuries that resulted. Due
to this heightened potential for liability, many pool owners have attempted
to curtail their legal duty by having their swimmers sign liability and
indemnity waivers. Despite these efforts, New York’s General Obligations
Law section 5-326 expressly declares these waivers null and void. This
section specifically covers these types of waivers by providing that;
"Agreements exempting pools….from liability for negligence…entered
into between the owner or operator of any pool and the user of such facilities…
shall be deemed void as against public policy and wholly unenforceable."
Although this section of the statute is more applicable to public swimming
pools, the law pertaining to swimming pool liability specifically addresses
private pools as well. Private pool owners who do not install a four-sided
pool fence, completely separating the pool area from the house or yard
could be held liable for damages, even if individuals enter the pool uninvited.
Additionally, pool owners should take precaution to clear the area around
the pool of any floats, toys or other items, which may lead to unintentional injury.