Pool Operators Make Little Progress in Updating Safety Features

David Mittleman

Attorney
(866) 735-1102 Ext 430

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About a month ago, I wrote about how swimming pool operators would be required to install new safety devices aimed at preventing entanglement and drowning. Despite having nearly a year to comply with the Pool and Spa Safety Act, most pool operators failed to update their facilities. Many pools and spas remain open in flagrant defiance of the law, with the owners often citing the cost of the upgrade and the unavailability of necessary drain covers.

This situation raises a number of interesting and important questions about the potential liability of non-compliant pool operators. The U.S. Consumer Product Safety Commission (CPSC) has an obligation to enforce the law as directed by Congress. According to a press release directed to the National Swimming Pool Foundation and other pool safety organizations, the CPSC has set up an enforcement regime that gives the highest priority to pools and spas that pose the greatest risk to children.

Pool operators could also face civil liability if someone is injured or killed due to drain entrapment. Under the legal doctrine of negligence per se, the pool operator could be conclusively or presumptively held responsible if an unapproved drain cover causes a drowning or similar injury. While the facts of each individual case will govern the outcome, the Pool and Spa Safety Act appears to satisfy the basic requirements of the doctrine.

Of course, even enhanced safety measures cannot completely prevent drownings. Always use caution when swimming and supervise young children and other poor swimmers. With those tips in mind, swimming can be safe and enjoyable.