I could avoid writing a whole article on liability, disclaimers and pool fences in single-family homes, with the following sentence: if you have a home that has a pool, put in a pool fence. I understand that city codes may not require it. I understand that you have high locks on your doors. I even understand that you have a disclaimer in your lease. But when you have a pool in your rental property, the best thing you can do to protect yourself legally is to install a pool fence. There are definitely reasons why it may not be legally required, but as a practical matter, it is a very good idea to always install a pool fence.
Cases regarding pool fences and personal injury fall within those cases that deal with premises liability. The question is always – Is the landlord liable to the injured person? This turns on whether the landlord has a duty to that person, whether they breached that duty and whether the person was injured as a result. If the danger is open and obvious, then the property owner may not be liable. These sentences give landlords many arguments to make as to why they shouldn’t be liable if someone gets hurt in the pool. Many landlords argue that they met city codes and, thus, they acted reasonable and didn’t breach their duty to the person. Others argue that a pool is an open and obvious danger, and therefore there is no breach. Finally, many landlords say that they put disclaimers and waivers in their lease to protect them from liability.
All of these arguments can be undermined with one quick example: a guest of the resident goes to the property with their one-year old child and the child gets outside through a doggie door and drowns because there was no fence. If this happens, the court will look to whether the landlord acted reasonably as to that one-year old. First, the argument that the danger is open and obvious no longer applies because it can’t be understood by a one-year old. Second, all of the waivers and disclaimers in the lease don’t protect the landlord from claims against guests. Therefore, it comes down to whether the landlord acted reasonably in not putting in a pool fence.
This exact scenario has happened in Arizona, and the courts specifically found that it is up to a jury whether the absence of a fence is patently unreasonable. In other words, even if the home is up-to-code, a landlord could still be liable for injuries on property when there is no pool fence. This could lead to significant liability because pool related injuries often lead to death or permanent brain injury, resulting in lifelong medical bills. Even if the landlord is able to convince the jury that they acted reasonably, the fact that the case had to go all the way to a jury trial, will mean that the landlord spent tens (or hundreds) of thousands of dollars in attorneys’ fees. With that type of risk, the cost to install a pool fence doesn’t look that significant.
By Mark B. Zinman, Zona Law Group