Written by JH Revere, Esq.
Summer is in swing and a review of swimming pool liability issues seems in order. First the statutory law on the subject:
Virginia Code § 15.2-921 states in part:
For the purposes of this section:
“Swimming pool” includes any outdoor man-made structure constructed from material other than natural earth or soil designed or used to hold water for the purpose of providing a swimming or bathing place for any person or any such structure for the purpose of impounding water therein to a depth of more than two feet.
“Fence” means a close type vertical barrier not less than four feet in height above ground surface. A woven steel wire, chain link, picket or solid board type fence or a fence of similar construction which will prevent the smallest of children from getting through shall be construed as within this definition.
Any locality may adopt ordinances making it unlawful for any person to construct, maintain, use, possess or control any pool on any property in such locality, without having a fence completely around such swimming pool.
. . .
Any such ordinance may be made applicable to swimming pools constructed before, as well as those constructed after, the adoption thereof.
Virtually all localities in Virginia have adopted a swimming pool ordinance requiring fencing (at least four  feet in height) with a lockable gate. The failure to comply with a local ordinance would be construed as negligence per se under most circumstances (drowned minor).
Further the Virginia Code permits local municipalities to “regulate and inspect the operation, maintenance, and use of public swimming pools, lakes and other natural or artificial waters and private pools and lakes operated by clubs and associations; and without liability to the owner thereof, may prevent the use thereof when such waters are found to be polluted, adulterated, impure or dangerous.” (See Va. Code § 15.2-1110).
The duty of care for land owners or pool operators to invitees is found in several Virginia Supreme Court cases.
The 1999 case of Misty Phillips, Executor of the Estate of Richard Phillips v. Southeast 4-H Educational Center, 257 Va. 209, 510 S.E. 2nd 458 (1999) involved a twenty five (25) year old man who drowned at a public swimming pool. He was observed shortly before drowning swimming laps and then “resting” on the bottom of the pool by the lifeguards. Within “moments” of observing bubbles disappear from plaintiff’s decedent, the lifeguards acted to affect a rescue. At no time was decedent observed struggling in the water. Citing long standing case law the Virginia Supreme Court held:
Generally, the owner of a swimming pool to which the general public is invited for a fee must exercise ordinary care for the safety of his patrons. He must make reasonable provisions to guard against those accidents which common knowledge and experience teach are likely to befall those engaged in swimming and other aquatic sports for which he has provided facilities, but the owner is not an insurer of the safety of his patrons.
Depending upon the circumstances involved, an owner of a swimming facility may have a duty “to station qualified lifeguards at the [facility] to supervise patrons and rescue those in peril,” and, “[i]n such case, the [facility] owner is liable for the negligence of lifeguards in the performance of their duties.” A lifeguard’s duty is twofold. “First, he has some duty to observe swimmers for signs of distress; second, he has some duty at some point to attempt rescue of those in distress.” In the performance of the second duty, a lifeguard must exercise the care that an ordinarily cautious lifeguard would exercise under similar circumstances. (Emphasis added) (Citations omitted)
Interestingly, the Virginia Supreme Court noted that while there was sufficient evidence of negligence for a jury to consider (thereby reversing the trial court), there was insufficient evidence to show proximate cause (linking of the negligent acts to the death) (Plaintiff could not show exactly when decedents heart stopped, or if any acts of the lifeguards might have saved him).
Generally duties of care and proximate cause will be questions of fact for a jury in all but the most extreme circumstances.
With that very brief overview of swimming pool liability, KPM urges all to be careful in and around the water and have a great summer!