Pools, an Accident Waiting to Happen – Who is Responsible?
A pool can provide hours of pleasure for the whole family. However, it only takes an instant for things to go very wrong. In such cases, who must shoulder the blame? The Ontario Court of Appeal was asked to consider this question in a recent case.
Marion bought a used slide for her family’s four foot deep pool. To ensure it would be safe, she took it to the pool supply store she had been dealing with for two years. The employees at both this store as well as at a second outlet assured her that it would be “no problem” to install the slide.
Although Marion instructed her children to go down feet first, her almost 16 year old daughter decided to go down on her belly. The result was tragic. The girl broke her neck, and was left a quadriplegic.
In a case that ended up before the Ontario Court of Appeal, Marion sued the pool supply store. The majority of the Court concluded that there was a sufficiently close relationship between Marion and the pool supply store such that the store owed Marion a duty of care with respect to its advice to her.
Marion did not specifically use the word “safety” when she asked the store’s staff for advice. However, the Court felt it was clear that by asking a vendor of pool supplies whether it is “okay” to install a slide with a specific pool, that safety was the motivation for the question. Therefore, the staff was obliged to provide a non-negligent answer to the question.
The staff was found negligent and was found to have breached its duty of care by failing to warn Marion of the hidden danger of catastrophic injury from installing the slide in her pool. The Court felt that “but for” the employees’ failure to warn of the possible dangers, Marion would not have erected the slide and her daughter’s accident would not have happened.
The Court did attribute some of the fault for the accident to Marion’s daughter. Her decision to disregard her mother’s rules for using the slide were found to have contributed to her injuries. Based on her carelessness, the daughter was found to be 20 per cent liable for her injuries.
The result in this case may seem harsh, especially considering the pool supply store did not sell the slide. However, the appellate court’s decision should be taken as a warning that businesses should ensure that their employees are careful in how and what information they provide to their customers. If they are unsure of an answer they need to make it clear to the customer that they do not know and that the customer should not rely on the information being provided.Share