House with poolFor many Floridians going to the beach and enjoying a swimming pool are a way of life, especially in the summer heat.  However, we often forget about the liability of owning a pool.  Many associations (both homeowners and condominium association) have pools, and there is a risk of liability that needs to be considered when operating, maintaining and repairing a pool.

The degree of care that an owner of real property owes to a person on its premises will depend on whether the person is an invitee, a licensee or a trespasser.  In the case of both Members of an association using the pool (or their children) and non-member tenants or guests using the pool, their status would be that of invitees.  A property owner owes a higher duty of care to invitees.  Generally, a property owner owes two (2) duties to an invitee:

  1. the duty to use reasonable care in maintaining the property in a reasonably safe condition; and
  2. the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.  Breach of the duty of care or the duty to warn may result in liability for negligence if the breach of duty is determined to be the proximate cause of the injury or damage sustained, and such damage was the foreseeable result of the breach of duty.

With regard to swimming pools or other natural or artificial bodies of water, the general rule in Florida is that there is no liability for someone drowning in a body of water, natural or artificial, unless there is some unusual danger not generally existing in similar bodies of water, or the water contains a dangerous condition constituting a “trap”.  However, an association can be liable if:

  1. it breaches a specific or a general duty imposed by an applicable statute, code, regulation, ordinance or its own governing documents; or
  2. if the body of water is considered an attractive nuisance to children.  “Attractive nuisance” is not a separate cause of action or theory of liability; rather, it is a doctrine that imposes a greater duty upon a property owner toward trespassing children.  The purpose of the doctrine is to recognize that trespassing children, unlike adults, may lack the capacity to perceive or avoid dangerous conditions.  An association is not obligated to construct some barrier that is impenetrable by all children, but the association has a duty to ensure that the safety measures required by code are met in order to insulate the association from liability.  Therefore, the association should always stay current with any maintenance on the pool fence, gate, locking mechanisms and other entrances into the pool area.
Stay tuned for Part 2 tomorrow, where we will address how an association can try to minimize its liability for a pool. (Source: Becker & Poliakoff)
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