When I first started practicing community association law, I was warned about the 3 P’s – pools, pets, and parking. While I have certainly dealt with issues involving the 3 P’s, they have not consumed nearly as much time as other issues. I attribute that, in part, to our firm’s proactive approach to educating our clients about these issues and assisting them with putting frameworks in place to limit issues before they arise. With pool season starting in earnest this weekend, this post is a reminder of some of the unique issues and liabilities that pools create and the best ways to limit those liabilities.

An obvious area of potential pool liability is for personal injuries that occur in or around the pool areas. In our experience, a vast majority of associations do not hire lifeguards and have a swim-at-your-own-risk policy. This is the best policy, in our opinion. If your association has this policy, the following actions should be taken to minimize risk:

• The board of directors should formally vote to approve a swim-at-your own-risk policy.
• The policy should be published to owners and residents in the association’s handbook/rule book or otherwise published to the association’s members.
• The pool area should have clear signage posted in multiple conspicuous areas communicating the policy. Signs should indicate that there are no lifeguards and those using the pool area are doing so at their own risk.

 If your association hires lifeguards, then the board of directors should make sure that the lifeguards are properly certified and that enough lifeguards are hired to staff the pool during all hours of operations. The board of directors may use a pool staffing company for lifeguard services, but that will not eliminate the association’s liability if the pool operates without a lifeguard and a tragic incident occurs since the association must ensure that the pool is properly staffed.

Another area of potential liability relates to pool rules. Associations often adopt and publish rules that they believe are reasonable and based on common sense, like prohibiting minors from using the pool unattended, reserving certain hours for certain age groups to have exclusive use of the pool, and specifying the clothing that cannot be worn in the pool. Associations, however, have been sued for rules like these under claims that they constitute different types of discrimination under the Fair Housing Act and lost. Pool rules should generally focus on behaviors, not age or other characteristics (e.g., no running around the pool, no glass in or around the pool, etc.). Associations should then make sure that enforcement mechanisms are in place, that the rules are published to owners and residents, and that the rules are enforced in a consistent and non-discriminatory manner.

If your association has pool rules and policies that have not been reviewed by the association’s attorneys or that have been questioned, we strongly suggest having an attorney review them. If you have any specific questions about your association’s pool rules, policies, or operations, contact Williams & Strohm, LLC at (614) 228-0207.