Torts: Come Up & Sue Me

Such is the U.S. genius for mass-produced luxury that the average home swimming pool now costs only $3,849. By year’s end, the country will have more than 400,000 of them, a 220% increase since 1959. So enjoy the pool, but keep in touch with a lawyer.

Although specific swimming-pool laws are still rare, chances are that pools come under the local “police power” to regulate public health, safety, morals or welfare. A pool owner may not only have to build a high, strong fence, but he may also also pay higher property taxes. To prevent disease and pressure on local sewers, he may be forced to install a costly pump that recirculates his water every 18 hours. To save town water, he may be required to dig his own well.

Act of God. Then come the claimants —for example, the builder. If he runs into “latent defects,” such as hidden springs, the builder is entitled to charge more than the contract calls for. If the owner fails to pay on time, the builder may also force public sale of the pool, a move that can conceivably result in the owner’s losing his property as well as his pool.

Assuming he escapes that Waterloo, the pool possessor’s next problem is a century-old precedent that property owners may be liable for dangerous activity, such as flooding, that takes place on their land and affects adjacent land. The pool owner is exempt only if he can blame a third party or an act of God. Under “nuisance law.” which amply covers swimming pools, the neighbors may also sue or enjoin the poolster from all sorts of annoyances—glaring lights, noisy swimmers, noxious chlorine, and bug-breeding stagnant water.

Beyond all that, a pool owner’s biggest legal risk is the obvious one that guests or trespassers may be hurt or drowned. Although injuries are frequent, the pool industry claims only 3.7 fatalities a year per 10,000 pools, and suits involving pool-drowned children are still relatively few. Still, the steady proliferation of pools suggests that owners had best beware.

Attractive Nuisance. Historically, the law has always relaxed the landowner’s duty of reasonable care when an invited guest is injured. The exception is a hidden danger of which the owner is aware but the guest is not. If a pool owner fails to warn guests that his diving board is broken, for example, he is quite likely to lose a diving-accident case if it comes to court.

What of the uninvited guest? Traditionally, the landowner owed practically no duty of care to trespassers. But this, too, is changing. For example, the unfolding doctrine of “attractive nuisance” holds that owners must protect trespassing children of tender years from enticing dangers that they cannot understand. Until recently, the courts refused to apply this concept to swimming pools. Parents were responsible for their tots who strayed into other people’s pools. But in 1959, the California Supreme Court ruled in King v. Lennen that the owner of a poorly fenced pool was liable for the death of a 1½-year-old boy who wandered in and drowned. Other states are likely to follow the King precedent.

In California, which boasts about one-third of all U.S. pools, King and related cases have spurred all sorts of safety devices—not only elaborate fences required by local laws, but also resuscitation kits, “pool-sitter” lifeguards ($1.25 an hour), and electronic monitors that ring bells when trespassers plunge or fall in. Since a pool cover is probably the best idea, builders now offer a pushbutton elevator that rises out of the pool bottom until it decks over the pool as a play slab for parties. Unhappily, the gadget costs at least $1,500. Happily. $150 or so buys a polyethylene mesh cover that supports 200 lbs.

Not surprisingly, insurance companies increasingly insist that the standard homeowner’s liability policy is not enough to cover a pool. The risk rate on more insurance seems low—one company typically charges only $37.50 a year for a $100,000 pool liability policy—but well-heeled owners, who may be sued for a packet, are more and more turning to a $50,000-deductible “umbrella” policy that covers everything from pools to boats for up to $10 million. For people who throw poolside parties and fret about the consequences, some companies charge a mere $250 for a one-night policy covering 100 guests up to $1,000,000. With that, the whole party can fall in as the carefree host beams: “Come up and sue me.”