What’s Wrong With Going For A Swim?
By Lindy F. Bradley, Esq.
California is easily the most populated state in the United States, with approximately 38 million individuals living in what is considered the best weathered state in America. Summer in California, and specifically in the southern part of California, regularly has days that do not dip under 80 degrees Fahrenheit. Thus, it should be no surprise that whenever individuals have free time, they flock to local beaches or go swimming in pools.
Living in a home with a pool is a convenience that is relished during the summer days. However, owning a pool comes with certain responsibilities that could turn pool ownership into more of a burden than a “cool” blessing. For example, in
Sampson vs. Moeini, a case tried in Los Angeles County, a child was awarded a $44 million verdict against a pool owner amongst other defendants for permanent cognitive injuries, which resulted from the child being “attracted” and eventually jumping into a pool which contained plastic swim rungs with pictures of cartoon characters. While such an outcome is not the norm, it illustrates the potential dangers of owning a pool and not having the appropriate and reasonable safeguards in place to prevent such a devastating injury from occurring.
Children are inquisitive beings. They are often “attracted” to things that are interesting and fun. In California, the “Attractive Nuisance Doctrine” holds landholders liable to anyone for harm suffered on their property, including trespassing children, for negligent acts or dangerous conditions on the property that led to the harm.
For example, if children come upon your property and see a pool on a hot summer day, it is not a stretch of the imagination that they might want to go swimming. Under
California Civil Jury Instruction 412 “adults are expected to anticipate the ordinary behavior of children and use more care when dealing with them than they would with adults. Determining what a foreseeable risk might be, requires an analysis of the tendency of children to “intermeddle” with objects that could reasonably grab their attention.
Accordingly, whether a child can recover compensation for any injuries they may sustain on your property will usually come down to an analysis of the reasonable steps you took to prevent the accident from occurring. Some of the steps you can take to prevent children from being “attracted” to objects on your property includes building a gate or fence sufficient in height to prevent entrance onto the property, locking those gates, and/or covering and locking your pool to prevent unauthorized children from entering.
In Los Angeles County, any structure intended for swimming and that contains over two (2) feet of water
shall be enclosed by a fence (which, includes gates) that shall be no less than four and a half (4 ½) feet off the ground.
Los Angeles Building Code – Volume 2, Section 6109.1 This list is not all inclusive and the reasonableness of your actions depend on the object attracting children to your property. Some other examples of things that may attract children to your property are animals, fountains and wells.
It should be noted that just because a child is not authorized to enter onto your property, that does not necessarily absolve you of liability.
Some simple takeaways: 1) children are simply less mature than adults and thus, a greater sense of caution must be utilized; and 2) as a homeowner, if you have land surrounding your home that is potentially open to the public, and especially children, take reasonable steps to protect these children from being attracted to the particular object or thing (such as a swimming pool), and any subsequent injuries that may result.
If your summer mantra is “Home is Where the Pool Is,” make sure that your pool is secure, and then swim your heart out!
