Actress Demi Moore recently discovered a dead man in her pool. This unfortunate situation caught the media’s attention and caused many to think of pool safety and liability issues.
As a lawyer with many clients who own rentals in Arizona, Florida, and California and other states where pools are common, I thought it would be helpful to address the issues of pool liability and safety.
First, let’s discuss liability as it relates to pools. Generally, the property owner is responsible for maintaining the pool in a safe and reasonable manner. In the case of Demi Moore, what occurred was that her assistant held a party at the house while Demi was away and a man drowned in the pool at this party. Because Demi’s assistant is an employee that means that Demi is also responsible for her employee’s actions. So her assistant’s failure to keep the pool safe during the party becomes a liability issue for Demi. Also, as the pool and property owner, Demi is responsible to maintain care at the home and around the pool.
There are two ways a property owner can be liable for accidents that occur at a pool. First, if you violate a local law (city or state) that relates to pool safety you can be held strictly liable. In most instances, there are laws that govern what safety precautions should be present on a home. These requirements vary by state but include a combination of safety barriers (e.g. fences), pool covers, and door exit alarms. If your property and pool do not comply with these requirements and if an accident occurs at your properties pool, you can be held “strictly” liable for the accident that occurs on the property. Consequently, make sure you understand the rules in your city and state so that you are complying with the safety laws. Not only will this help prevent unfortunate accidents but it will also make you less liable in the event of an accident.
The second way you can be liable for a pool accident, is if the property and pool is otherwise unsafe. This could occur if safety precautions aren’t working (e.g. broken fence) or if the pool is otherwise unsafe or is left unsupervised while children or other persons who may need supervision are around. In many instances, if the landlord is aware of a dangerous pool condition and doesn’t fix it then they are liable for any accidents. In the case of Demi Moore, the argument may likely be that the pool was un-safe because it was not properly supervised while there was a party where alcohol was served (I’m assuming that occurred). While I haven’t seen these facts alleged, this is a common issue and safety problem and if alcohol is being served around a pool you better make sure the pool is properly being supervised. Appoint a designated non-drinking lifeguard.
As a landlord, you have a duty to your tenants to ensure that the pool includes the necessary safety features required by law. You can also be liable for damages and accidents to their guests to the property. And sometimes, even trespassers can hold you liable for damages incurred from the pool while trespassing (usually this would only apply to children who were able to access the pool).
HOW TO PREVENT LIABILITY AND PROTECT ASSETS
Here’s a quick summary of things to do that will limit your liability from pool accidents.
- Comply with all safety requirements for your city/state (e.g. fences, exit alarms, etc.)
- Include a clause or separate pool disclosure and waiver. This document will include the following.
- The tenants use the property at their own risk.
- Have the tenant specify if all of the occupants of the property can swim. If any occupant cannot swim (e.g. young children), then additional caution should be taken and indicate in the waiver that the pool must be supervised at all times the child is at home. This may also be a good reason not to rent to someone as your liability does increase.
- State that the tenant is responsible for maintenance of the pool safety equipment (e.g. fences, exit alarms, as applicable) and that the tenant must immediately notify the landlord of any safety feature or pool equipment repairs that are needed.
- State that the Tenant agrees to supervise the pool at all times that guests are at the property.
- Make sure that your property/landlord insurance (rental dwelling landlord policy) includes protection for the swimming pool and that your agent knows there is a swimming pool on the property. The presence of a pool will increase your insurance premium slightly. I have a rental with a swimming pool personally and it increased my premium slightly over a similar rental I have without a pool but it isn’t significant. The pool is listed on my policy and accidents are covered under my Landlord/Business liability policy provisions. One thing to keep in mind is that your insurance company could deny coverage if you do not have the adequate pool safety features on the property required by law. So, again, make sure you know the local pool safety laws and requirements for pools in your state and city.
- Own your property with an LLC so that if something occurs on the property your LLC is liable for any damages as opposed to exposing all of your personal assets. In general, when the LLC owns the property the LLC is liable for anything that occurs on the property and a plaintiff tenant cannot reach your personal assets held outside the LLC.
Hopefully none of us have to deal with a tragic pool accident. I hope this article helps landlords and real estate investors understand their responsibility and precautions that should be taken when a pool is located on one of your rentals. Pools can add great value to a home and are a nice feature for the “move-up” rental market but they need some extra attention and care from property owners.