My wife and I bought a house 1 1/2 years ago that has a pool. My wife's sister always wants to come over during the day with her kids and swim. While I don't mind them using it from a legal standpoint what is a home owners liability if someone gets hurt or worse, drowns, in the home owners pool?

No idea, but is your sister in law the type that would pursue legal action if something happens?

 

Also, not sure how you can be held responsible if you're not there and you have the necessary precautions (fenced in pool, etc.), and she's present the entire time.

No idea, but is your sister in law the type that would pursue legal action if something happens?

 

Also, not sure how you can be held responsible if you're not there and you have the necessary precautions (fenced in pool, etc.), and she's present the entire time.

Agree, but if he's granting access, the fence wouldn't matter would it? I imagine a quick call to your homeowners insurance carrier/agent would clear it up.

No idea, but is your sister in law the type that would pursue legal action if something happens?

 

Also, not sure how you can be held responsible if you're not there and you have the necessary precautions (fenced in pool, etc.), and she's present the entire time.

I wouldn't think she would be but who knows how anyone would react if a tragedy occurred.

 

Agree, but if he's granting access, the fence wouldn't matter would it? I imagine a quick call to your homeowners insurance carrier/agent would clear it up.

That's probably a good idea. I know there is a liability clause in the policy but it only covers up to a certain amount.

If you think you can make your sister-in-law sign an exculpatory clause (even if it's just a simple draft that you write up yourself), I think you're better off than if you do nothing. I'd have to imagine they're pretty simple and basic. Think of how many hotel, state park, and apartment complexes have pools with no lifeguards. Actually, if you can dig up a rental agreement for a vacation home with a pool, I'm sure you can find sufficient legal language there to write something up. They (the management company and/or property owners) need to absolve themselves from pretty much the exact same legal responsibilities that you're describing.

 

Obviously, if you can get an attorney to write up something, or at least read over what you've written, that's gonna be your best case scenario...but I if that's not an option, I don't think it should be too tough to find yourself a decent go-by.

How about if the neighborhood kids are using your trampoline and/or jungle gym when you are not home? Would we be be liable if someone was injured while we are not home and did not know they were there? How about liability if we invited them to play while we were home?

I agree with Doc, you need to call your homeowners insurance agent. Pools, tramps (not that kind), dogs, lakes, etc. are all something you have to have covered up front and if your agent is competent he/she will certainly know how to advise you and what coverage you need.

tramps (not that kind)

 

:lol:

tramps (not that kind)

 

:lol:

Something goes wrong with "that" kind and you'll need a free clinic...not a lawyer.

Unfortunately there is really no simply yes or no answer as to whether or not you could be found liable if an accident occurred. One would need to know all of the exact facts and circumstances that contributed to the accident, and even then it is possible to get a surprising verdict if it goes to trial.

 

The majority of homeowners have their property insurance based upon a standardized policy form which is generated by the Insurance Services Office. (ISO) This is usually an Homeowners 3 form (HO3) but their are other forms available HO2 or HO1 which offer reduced types of coverage, however, these are rarely used. Some insurance companies will slightly modify the wording of the HO3 form and of course there are always endorsements that can be added to the policy which can either add or remove certain coverages.

 

The HO3 form consist of two sections. Section 1 provides coverage for the following items. A - Dwelling, B - Other Structures, C - Personal Property, and D - Loss of Use. Section 2 provides coverage for the following items. E - Personal Liability, and F - Medical Payments to Others (Med Pay).

 

The standard ISO form language does not include any exclusions which would apply to liability claims involving swimming pools. Therefore a homeowner that has a swimming pool may potentially have claims for both Personal Liability and Med Pay. Med Pay coverage applies to injuries that occur to someone other than an insured which occur on the insured premises. This coverage is typically for a nominal amount. While there are no limits per say as to the amount of coverage you could purchase it is typically between a range of $2,000 to $10,000. This coverage would be applicable regardless of any finding of negligence on the part of the insured. For example if a guest at your pool trips and falls into the ladder and knocks out a tooth, med pay coverage would pay for the dentist bill.

 

Unlike Med Pay, Personal Liability coverage is going to be based upon the insured acting negligently and somehow contributing to the accident. A swimming pool claim would be a premises liability claim. Premises liability involves the responsibility of property owners to maintain safe conditions for people coming on or about the property. There are different categories of people to whom a property owner might be liable and the duties of protection owed to each group vary. The different groups are Invitees, Licensees, and Trespassers.

 

An Invitee is someone who is on another person’s property because they were invited by the property owner. An invitee must be on the property for one of two reasons: to conduct some kind of business, or because the property is public property and is made available to the public. With regard to a private residence an invitee is typically a contractor, or another type of worker.

 

A Licensee is a person who has permission from the property owner to be on the property, but who visits for her own purposes or amusement, rather than for business purposes. Party guests are often classified as licensees, as are family friends who have an open invitation to visit or use the owner’s property.

 

A Trespasser is someone who enters another person’s property without the property owner’s permission and for the trespasser’s own purposes. In most premises liability cases, it does not matter whether the trespasser entered the property illegally or with a plan to do something illegal once he was there.

 

With regard to an Invitee or Licensee the property owner owes a fairly high duty to see to it that dangerous conditions on the property are eliminated and / or to warn the person of the existence of the hazard. The duty owed to a Trespasser is low in comparison in that the property owner does not have to eliminate a hazard or warn the person of the existence of the hazard, however, property owners may not create dangerous conditions that didn’t exist before in order to trap trespassers. Property owners are also not allowed to make an already dangerous condition worse in order to trap trespassers.

 

However, swimming pools fall into a category of items which are known as an attractive nuisance. An attractive nuisance is any condition on someone’s property that would attract children, who are fascinated by it but don’t understand its dangers. If a child is injured or killed by an attractive nuisance, the property owner could be held liable for damages in a personal injury case. When considering an attractive nuisance, a property owner is held to a higher duty even in the event that the injured person was a trespasser if that person is a child. I would assume that this principal might also apply to someone older who is mentally handicapped.

 

Unfortunately the simple fact that you own a pool creates a large exposure to potential liability if someone where to injury themselves in or around the pool. If your insurance company is not already aware that you have a pool, you may find that they will require specific things to be done in order for them to continue to insure you. At a minimum they will likely require that the pool is enclosed within a fence.

 

Basically you are going to want to do everything that you can to eliminate any potential finding of negligence on your part regarding the pool. I would recommend that you research the local building codes pertaining to swimming pools and make sure that your pool is compliant. In addition I would keep records tracking any service or maintenance of any of the pool equipment and accessories. The pool needs to be enclosed within a fence that is at least 4' high and does not have gaps between boards wide enough for a child to squeeze through. The gates should be of the type which automatically shut and latch. The pool should be covered when unattended and not in use. Some even recommend installing audible alarms which would signal someone entering the pool area. Any of these actions could be defenses against a premises liability claim. The more you can do to show that you took action to try to prevent an accident from occurring, the better off you will be in the event that something does occur.

 

Another consideration with regard to your insurance policy is the amount of liability insurance that you have available. I'd guess that most homeowners policies offer between $250,000 to $500,000 in coverage. Again these limits could be any amount, but this is likely what you will see on most policies. I would suggest considering what is known as an umbrella policy. This provides excess liability coverage over and above what is available from your homeowners policies. These are usually secondary coverage polices, meaning that they will not pay anything until the coverage provided by the primary policy is exhausted. This type of policy makes it more economical to purchase liability coverage for 1 million or 2 million than it would be to purchase as part of your homeowners policy.

 

That may seem like a lot of coverage, however, if you think about it injuries incurred while using a swimming pool can be fairly excessive. This will likely sound rather cold hearted, but from a liability standpoint the death of a child due to drowning is less in what the claim would be valued at than a serious non-fatal injury. A 12 year old kid who dives in a shallow pool and suffers a spinal cord or brain injury may require substantial medical care the rest of their lives. So you can see how the amount of a potential liability claim can be substantial.

 

The following link will give you an example of what appears to be a fairly good waiver and release of claims.

 

Release

 

 

Hopefully what I wrote will be of some value to you. Sorry it was so lengthy. I really didn't even answer your question, but hopefully this will give you something to think about. I'm not a lawyer ( I didn't even stay at a Holiday Inn last night) but I do work in the insurance industry. I don't even deal with premises liability claims but I know enough about them to be dangerous.

 

The bottom line is that there is likely no way in which you can prevent yourself from being potentially liable for injury which may occur due to your ownership of a swimming pool, but you can take action to make sure that the pool is properly maintain and in proper working order, and that you have taken every reasonable step to eliminate or lessen the hazards which do exist regarding swimming pools.

 

Obviously owning a pool is more fun when you can share it with friends and family, cookouts, pool parties, etc., but in doing so you do expose yourself to potential liability. God forbid that anything should happen, but hopefully if you have been a responsible owner of the pool than you will be found to not be liable, however, as we have all seen in the news, sometimes juries give verdicts which make us scratch our head. Who knew spilling hot coffee on yourself could make you a millionaire.

How about if the neighborhood kids are using your trampoline and/or jungle gym when you are not home? Would we be be liable if someone was injured while we are not home and did not know they were there? How about liability if we invited them to play while we were home?

 

A trampoline would be considered an attractive nuisance. You could be liable for injuries which occur even if it is used without your knowledge or consent. The trampoline should be inside a fence and the gates should be locked. Basically you have a duty to make the trampoline as unaccesable to neighborhood kids as possible.

A trampoline would be considered an attractive nuisance. You could be liable for injuries which occur even if it is used without your knowledge or consent. The trampoline should be inside a fence and the gates should be locked. Basically you have a duty to make the trampoline as unaccesable to neighborhood kids as possible.

Very good to know. Thank you!! There is a place to put a lock on the zipper on the net. We will start using that, especially when we are out of town.

I am all for sharing with my kids' friends' when we are supervising, but it has become a neighborhood free for all, and that makes us nervous.

A trampoline would be considered an attractive nuisance. You could be liable for injuries which occur even if it is used without your knowledge or consent. The trampoline should be inside a fence and the gates should be locked. Basically you have a duty to make the trampoline as inaccessible to neighborhood kids as possible.

 

Trampolines (and any other type of playground equipment/apparatus), swimming pools, ponds/lakes/creeks/fountains, construction sites, construction debris, construction tools/equipment, farm equipment, railroad tracks, cars and virtually any type of vehicle, appliances, garbage (a lot of dangers lie in the things we leave sitting out at our curbs)...they're ALL attractive nuisances.

A trampoline would be considered an attractive nuisance. You could be liable for injuries which occur even if it is used without your knowledge or consent. The trampoline should be inside a fence and the gates should be locked. Basically you have a duty to make the trampoline as unaccesable to neighborhood kids as possible.

 

Attractive nuisance, if I recall correctly, is designed for children who are known trespassers. It is to protect them from known dangerous conditions. If you know kids are going to be playing there, follow Irish Cat's advice and take every precaution to eliminate the potential danger.

 

In the pool scenario, the children are guests accompanied by their parent, not trespassers. I need to look up the statutes or cases, since they are using the pool for their own benefit and are allowed on the property. I'm not sure if the homeowner would have any liability as long as he warns them of any artificial dangers on the land.

Attractive nuisance, if I recall correctly, is designed for children who are known trespassers. It is to protect them from known dangerous conditions. If you know kids are going to be playing there, follow Irish Cat's advice and take every precaution to eliminate the potential danger.

 

In the pool scenario, the children are guests accompanied by their parent, not trespassers. I need to look up the statutes or cases, since they are using the pool for their own benefit and are allowed on the property. I'm not sure if the homeowner would have any liability as long as he warns them of any artificial dangers on the land.

 

Doesn't apply to kids 100% of the time.

 

I had a jobsite a few years back where we had a grown man 1) climb over the 6' temporary construction security fence to get access to the site, and 2) hotwire a bobcat to "take it for a joy ride" (I would bet it was more than likely that he was just trying to steal it). Then he accidentally ran the bobcat into a small utility trench that had been properly flagged and covered over with plywood. The bobcat broke the plywood and fell into the trench, the gentleman broke his leg, his wrist, and several ribs in the accident, and after he sued, courts ruled that MY COMPANY'S INSURANCE WAS RESPONSIBLE to cover his medical bills and the repairs to my subcontractor's bobcat suffered from it falling into the trench. The trespasser/idiot had to pay to repair the bobcat's ignition that he destroyed when he hotwired it.