No one wants to think about the worst-case scenario for a day at the pool, but it’s good to know some basic liability laws
Here’s how to make sure your pool is safe (and protect yourself from liability) for guests and to prevent an accident involving a trespasser.
New York is a wonderful place for swimming—Lake Erie, the Niagara River, Lake Ontario, and the St. Lawrence River are part of the Great Lakes ecosystem. New York is also home to Lake George, Seneca Lake, and others, along with more than 500 miles of ocean coastline.
It’s no surprise that pool swimming and other water-based recreation activities are popular in the Empire State.
Swimming and water recreation comes with risk, though. Even a skilled swimmer can experience a swimming accident or drown.
New York and nationwide swimming and drowning accident statistics
New York drowning deaths
According to the New York State Department of Health, drowning is a leading cause of unintentional injury-related death in children 1-4 years old.
Children under the age of five are particularly vulnerable to drowning accidents, with swimming pools being one of the primary locations where these tragedies occur.
Swimming pool drowning deaths
The Centers for Disease Control and Prevention (CDC) reported that there was an average of 75 fatal unintentional drownings in swimming pools each year in the United States from 2015-2019.
The highest rate of drowning deaths was among children ages 1-4, with the next highest rate for children ages 5-14. This is consistent with patterns seen in New York and underscores the importance of implementing effective safety measures, especially for young children.
The CDC also reports that for every child who dies from drowning, another five receive emergency department care for nonfatal submersion injuries. These incidents can lead to long-term health consequences and underscore the importance of vigilant supervision and safety measures.
Liability for a New York swimming pool accident
Swimming pool accidents typically fall under the category of New York premises liability law.
It’s the homeowner or property owner’s responsibility to maintain safety in and around the pool. Whether or not they would be held liable for an injury depends on the circumstances.
There are some laws and regulations for New York swimming pools:
Fence or enclosure
All outdoor swimming pools in New York must be enclosed by a fence or barrier that is at least four feet high. This fence must completely surround the pool area and have no openings that a young child could crawl through or climb over. Gates leading to the pool must be self-closing and self-latching, with latches placed at least four feet above the ground to prevent easy access by children.
Pool safety covers
Swimming pools more than 18 inches deep must be equipped with a safety cover that meets state standards. These covers are designed to prevent accidental submersion and provide an added layer of protection when the pool is not in use.
Inspections and compliance
New York agencies inspect swimming pools to ensure compliance with safety regulations. Non-compliance can result in penalties and corrective actions to address safety deficiencies.
Pool alarm systems
New York law requires alarm systems for certain types of pools. These systems are designed to detect unauthorized entry into the pool area and alert homeowners or responsible parties to potential dangers. Pool alarms can include surface wave sensors, perimeter alarms, and gate alarms, providing multiple layers of protection against accidental drowning incidents.
Safety equipment
Safety equipment near the pool, such as lifebuoys, reaching poles, and a phone or other means of communication to summon emergency assistance if needed, is required by New York law.
Safety education
Pool owners are encouraged to undergo training in CPR and first aid to respond effectively in emergencies. Additionally, providing swimming lessons for children and adults can significantly reduce the risk of drowning by improving water safety skills and confidence in the water.
Who is liable for a New York swimming pool accident?
Under premises liability law, the homeowner or property owner’s liability for a swimming accident often depends on the victim’s legal status with regard to the property. This includes private homeowners, businesses, and public facilities such as community pools or recreational centers.
The victim falls into one of these categories:
Invitee: Someone who foreseeably enters the property even if they weren’t granted express permission (such as a resident entering a public pool). Invitees are owed the highest degree of care. Property owners or managers must keep the property reasonably safe and warn of dangerous conditions.
Licensee: Someone with express or implied permission to enter the property for non-business reasons (such as a friend invited over for a pool party). The homeowner must warn the licensee of known unsafe conditions that the licensee is not likely to discover on their own.
Trespasser: Someone not authorized to be on the property. The property owner doesn’t owe trespassers any duty of care unless the trespasser is a child. If the trespasser is a child, the attractive nuisance doctrine applies and the owner must exercise reasonable care to avoid a reasonably foreseeable risk of harm to children caused by an artificial condition that might be attractive to children (such as a swimming pool).
The property owner can be liable for an injury if they leave the pool inadequately protected or unsupervised.
There’s also a possibility that a contractor or maintenance provider could be liable. This could happen if a swimming pool accident is caused by defects in the pool’s construction, maintenance, or equipment.
Supervision and duty of care
There might be a duty of care to provide adequate supervision around the pool area, especially if there are children. If there are certified lifeguards on duty, they might be liable if they are negligent by not properly watching the pool. The owner could be liable for a lifeguard’s negligence, particularly if they were not properly trained or certified in emergency measures.
If it’s a public pool facility operated by a government agency, liability might be affected by specific laws and procedures applicable to sovereign immunity or liability claims.
Assumption of risk
A swimmer might have assumed certain risks associated with swimming activities. However, this does not absolve property owners or other responsible parties from their duty to provide a safe environment and comply with applicable safety regulations.
New York swimming pool accidents and the pure comparative negligence rule
A personal injury lawsuit in New York state is subject to the pure comparative negligence rule. If you were injured, any damages you receive from a lawsuit could be reduced by your percentage of fault.
In other words, this could apply if a swimmer is roughousing, engaging in dangerous play or water sports that are not appropriate for the size or depth of the pool, or chooses to swim in an area or depth that they know is unsafe for their skill level.
Even if the property owner could be held responsible (for example, a lifeguard isn’t paying close enough attention), the plaintiff’s damage award is reduced. For instance, if they are awarded $100,000 for their damages, but the plaintiff is found to be 30% responsible, their damage award is reduced to $70,000.
Each New York swimming pool accident case is unique, and liability determinations can vary based on the specific facts and legal considerations involved. Consult with a legal professional experienced in premises liability and personal injury law in New York if you’re interested in guidance regarding a swimming accident.
See our guide Choosing a personal injury attorney.