Have Fun But Stay Safe – The Obligations of Pool Owners
Summer is just around the corner and that means lazy days beside the backyard pool. While a pool can bring a welcome reprieve from the summer heat, pool ownership also carries with it certain legal obligations and responsibilities.
Occupiers’ Liability Act
The obligations of a pool owner vis-a-vis those entering onto their property is governed by the Occupiers’ Liability Act (See Fall 2002 for more information about this Act). The Act provides that:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
An occupier includes, not only the owner of the pool (or the property), but also those who are in physical possession of the premises or who have responsibility for and control over the condition of the premises or over those using the premises. As a result there is a wide array of people who may be subject to the duties imposed by the Occupiers’ Liability Act. In the context of residential property, an occupier could include someone who is renting a home, which is equipped with a swimming pool. It could also include the caregiver, who is left in charge of your children and your home (and by extension the pool).
Essentially the law requires that you take reasonable responses to reasonable risks, i.e. risks that are foreseeable. For instance ensuring that your pool is fenced in, that the fence and pool are in good condition and that younger children are not left unattended while in your pool.
Alcohol and Pools
While much of the responsibility falls on the shoulders of the pool owner, the law does expect a guest to take reasonable care for his or her own safety. In addition, an occupier’s duty is lifted in respect of risks willingly assumed by visitors to the premises.
Several years ago, the Ontario Court of Appeal ruled on a case involving an intoxicated guest, who ended up a quadriplegic after falling head first into his hosts’ pool. The guest arrived at his hosts’ with a beer in hand and over the course of the afternoon he had three more drinks. Although he had been warned not to dive into the pool, he unexpectedly climbed the safety railing around the pool. He lost his balance and fell in head first.
During the trial and the appeal, the guest argued that the hosts were liable for his accident since it was foreseeable. The guest conceded that it was not obvious that he had been intoxicated and that there had been nothing unsafe about the pool or the railing. Both the trial and appellate courts exonerated the hosts. The Court of Appeal stated that ” the conduct was outside the realm of foreseeable uses in connection with the swimming pool.”
Despite this decision, there is a trend that is beginning to move towards making social hosts liable for accidents involving their intoxicated guests. Therefore, you would be wise to monitor your guests’ consumption of alcoholic beverages during those summer pool parties.
Children and Pools
While adults must assume a certain responsibility for their own actions and safety while enjoying your pool, children, and especially young children, do not necessarily understand, appreciate and avoid danger. And while something may not be considered a danger where adults are concerned, this is not necessarily the case with children. This means that your duty to take precautions when children are using your pool will be higher.
If the neighbourhood kids hang out at your house because you have a pool, it is essential that you set up strict rules. Children should not be allowed into your pool without adult supervision. If you are too busy to act as “lifeguard”, insist that their parents accompany them. Although you cannot prevent children from being children, you should insist on minimal horseplay, no running on the deck and no diving where the pool depth is less than six feet deep.
Most municipalities have a bylaw regulating the enclosure of privately owned pools. These bylaws are put in place primarily to protect young children from accidentally climbing into a pool.
Although each municipality has its own rules, most require that those who wish to install a swimming pool secure a pool enclosure permit. They also require that the enclosure be at least 4 feet in height and in some cases 6 feet in height and include a self-closing and self-latching gate. For specific information contact your city’s bylaw office.
Pools are one of the great pleasures of summer, with a little bit of common sense, you and your guests will have a fun-filled and safe summer.Share