Swimming pool accidents
A lot of neighbourhood kids use my swimming pool. Can I be sued if there is an accident?
By Linda Silver Dranoff
First published in Chatelaine’s June 2002 issue.
© Linda Silver Dranoff
The law is complex and somewhat different in every province. Let’s look at the circumstances where you might be held responsible for an accident.
If you invited a neighbourhood child over to play with your kids in the pool and told the parents you’d look after her, you may be held liable if you do not take reasonable care of the child. Just like a teacher who assumes responsibility for students in her care, you might be held to the standard of a “careful or prudent parent.” How reasonable care is defined would depend on the circumstances, the child’s age, her skill and experience (for example, if her parents had told you that she was a poor swimmer).
You might also be liable if you were or should have been aware of a dangerous condition in the pool and failed to take reasonable care to do something about it (for instance, if you did not remove a sharp object from the bottom of your pool, which caused an injury).
Finally, you could also be liable for injury to or death of a child who trespassed to use your pool, if you knew that the premises was a neighbourhood attraction and children were likely to intrude and easily gain access to the pool. You might avoid or limit liability if you were able to show that you prevented easy access by children (for example, by having a high fence and a locked gate).
British Columbia and Ontario are examples of provinces that have specific laws in this area. The legislation states that a person in control of a property (such as an owner or tenant) owes a duty of reasonable care to see that visitors are reasonably safe. The operative word here is reasonable. This means you don’t have to hire a lifeguard once you’ve built that fence.
Generally speaking, parents must take responsibility for the supervision of their own children if they are at a vulnerable age. The age of the child is a critical factor. For instance, if a usually responsible 12-year-old boy trespasses into your pool and is injured or drowns, he may be treated as an adult who voluntarily assumed a risk. However, if a five-year-old child wandered into your backyard and fell into the pool, the responsibility (depending on the facts of the case) would be shared between you and the parents, but your liability risk would likely be highest if you left the pool open, unprotected and unsupervised.
Any lawsuits might be settled by your homeowner’s insurance, which has an optional feature to protect the owner from lawsuits by third parties for injuries on the premises. Find out if you can be protected for third party liability.
Linda Silver Dranoff practises family law and is author of the newly updated and expanded Everyone’s Guide to the Law: A Handbook for Canadians (HarperCollins).