This week’s question:
My husband and I own a home here in the Almaden Valley with a swimming pool in the back yard. We have purchased another home and rented out the one with a swimming pool but it really worries me if something happened there. Do we face any liability law suit if a tragedy should happen there?
You have emailed in a very good question, Kerry, one that anyone with a swimming pool might want to think about. As owners or tenants.
A very recent California court case dealt with that very question. The case is entitled “Johnson v. Prasad”. (Most computer browsers will have it on your monitor within a second.)
In the Johnson case, the property owners (landlords) rented out the home to their tenants. The lease provided, in part, that the rental of the home included the in-ground pool in the back yard and that the owners would be entitled to access to the pool for maintenance purposes.
On the occasion in question, the tenants of the property hosted a party at the house with several guests present. Unfortunately, four-year old Allen slipped thorough an unlocked door that his grandmother forgot to lock. Little Allen, unable to swim, was found at the bottom of the pool and later died.
Targets of the lawsuit that followed included the owners of the property, of course, as well as others. The suit was brought by Allen’s mother, Melina Johnson. Although the trial court ruled in favor of the property owners because of various reasons, the Court of Appeal for the Third District stated that the plaintiffs in that suit stated a case for the jury to decide.
The Court discussed the Swimming Pool Safety Act that was adopted on January 1, 2007. Under that Act, several safety measures were adopted so as to prevent drowning like the one that happened in this case. Although the home and pool in question were built before the Act became effective, the safety measures in question may have helped prevent a drowning.
The mother who lost her child alleged that the property owner negligently failed to properly fence-in the pool or to otherwise protect a child from accidently falling into the pool. She also alleged that property manager for the owner negligently failed to ensure that the house met legal safety requirements before it was rented.
The Court of Appeal held that yes, the property owner owed a duty of care to little Allen. This legal duty, then, was a matter of law for the Court to decide. As stated above, the lease agreement specifically provided that the landlord was responsible for swimming pool maintenance and that the tenants had to allow access to the pool for such maintenance.
It was also held that the owner knew, of course, that the pool was included in the rent, and that it was foreseeable that young children would approach the pool regardless of their ability to swim and thus expose themselves to the risk of drowning.
The Court also discussed the Swimming Pool Safety Act that was adopted in California in 2007. Even though the subject house was purchased prior to the adoption of that law and thus perhaps not technically governed by the law, the intent was clear. That intent was to the effect that homeowners have some responsibility to prevent swimming-pool drowning.
Almaden Times readers can easily read not only the “Johnson v. Prasad” case but also the Swimming Pool Safety Act, adopted January 1, 2007. It can be found in the California Health and Safety Code at Sections 115920 to 115929.
In any case like this one, the Court typically looks at a balance of the interests involved. In this case, the Court found that the burden on the property owner was not that great in terms of time and money to properly fence in the pool or to install a self-closing or self-latching mechanism on the kitchen door through which the backyard and its pool were accessed.
On the other hand, the corresponding consequence to the community was the possibility of a saved life, like little Allen.
So, Kerry, yes, you and your husband could conceivably face a liability suit if a tragedy should occur there. I would take every conceivable safety precaution I could and have plenty of homeowner’s insurance specifically applicable to your situation. Best wishes in your planning.
/s/Donald J. DeVries
You can reach Mr. DeVries with your questions by email at firstname.lastname@example.org, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, California 95120. Your name will not be used. No attorney-client relationship is created by these articles.