Death and Injury at the Pool – Are you Properly Covered?

by Craig Sears, President and Founder

Fear of water and drowning is one of the top 25 most common fears in the world today. And although drowning is rare when compared with the amount of time humans spend in the water, it is a common means of death.  In the United States alone, 4,000 people drown annually.  Drowning is the leading cause of accidental death among children ages 1-4, and the second leading cause among older children.

If you think these numbers are too high, you are not alone.  Organizations such as the National Drowning Prevention Alliance, work tirelessly to bring awareness to the general public and to increase funding for learn-to-swim programs, which are so desperately needed in many areas.

Not all drowning occurs in swimming pools. Other common locations are natural bodies of water, bathtubs, buckets and toilets.  However, the most common location for people to drown is a swimming pool without a lifeguard, usually a home pool.  Coroner’s reports do not always contain information on where the drowning occurred or if supervision was present at the time, making drowning statistics related to community pools difficult to come by. 

Another reason that accurate statistics on this topic are difficult to find is that quite often a drowning death isn’t really a drowning in the traditional sense. It’s often precipitated by another type of medical emergency that just happens to take place in the water, such as a seizure, stroke, etc.  For instance, an older gentleman had a heart attack while swimming laps in an unguarded condo pool in Sandy Springs last Summer. Unfortunately he was swimming alone, and no one discovered him in time.

Unlike how drowning is depicted in movies, it often occurs quickly and silently, where the people around the victim don’t even realized that he or she is drowning.

There are a number of things you can do to help make your pool safer for your community, and reduce liability.  Make sure your signage is current with all relevant codes. A “swim at your own risk” sign should be posted at all times, regardless if you have a lifeguard. Make sure your pool rules prohibit dangerous activity, including underwater breath-holding games. Make sure your equipment and facility are well maintained to avoid injury, and that you are compliant with local and federal laws. Make sure your pool fence does not have gaps, and that your pool gate is self-closing and self-latching.  Close your pool if the water becomes so cloudy you cannot see the main drains. If you cannot see the bottom, you cannot see a body on the bottom.  Inform your residents via newsletters and blogs on proper usage of your facility and general pool safety.  May is National Water Safety Month, the perfect time to remind your residents. 

Despite your and your pool company’s best efforts, a drowning may still occur at your facility.  If that happens, are you prepared?   Not all drowning victims die. Many survive without consequences or with consequences. Consequences range from minor to severe, depending upon the length of time underwater, the temperature of the water, and the age of the victim.

As is typical in other cases of injury related death, lawsuits often follow.  Generally speaking, all potential parties are named, and the court is left to determine whose fault it is and what (if any) award should be given to the victim’s family. This begs the question, “Does my association and my pool company have enough liability coverage to handle a claim?”  

Experts report that in the vast majority of drowning deaths, awards are typically in the hundreds of thousands up to about $1M. In these cases, $1M of coverage is sufficient.  If a party is negligent, awards can be higher, but very rarely exceed a few million.

What most people don’t realize is that awards are typically larger if the victim lives, but incurs permanent damage. This is because of the high cost of post care for non-fatal drowning victims. In the case of children, for every child that dies drowning, four others are hospitalized for non-fatal drowning, and as many as three suffer permanent brain damage.  For those non-fatal drowning victims who suffer brain damage, their lifespan is usually shortened dramatically, and their care costs can be significant, up to $180,000 per year and estimated lifetime cost of $4.5M.

Once a suit is filed, the next step is determining the apportionment of liability. If a plaintiff receives an award, it does not mean they will receive the full amount. It also does not mean that only one party will be responsible for payment. Each named party will be apportioned a percentage of the liability based upon the court’s estimation of fault. This includes the victim.

If the injured or deceased party contributed to their own injury or death by acting negligently, they will also receive an apportionment of liability.  Examples include victims who dive in the shallow end of the pool, jump or dive off the lifeguard stand, leave their children unattended, injure themselves or drown while intoxicated or break into the facility after hours.  In cases where the victim exhibits negligent behavior contributing toward their injury or death, the final award is likely to be much lower.  In the state of GA, if the victim’s contributory negligence is deemed more than 50%, he will not be entitled to recover any damages.

In summary, there is no easy answer to the question of how much insurance is enough.  However, the standard norm for most associations is $1M.  The standard norm for most pool management companies is also $1M. This should be sufficient to cover most losses resulting from injury or death at your pool.  However, where negligence on the part of the association or pool company plays a role, it may not be enough.   

Review your association’s policy with your agent. When evaluating your association’s insurance coverage, make sure you are covered for how your facility operates and the features on site. If your pool transitioned from operating only with a lifeguard present to “swim at your own risk,” make sure that type of usage is covered. If you have a diving board or waterslide, make sure these features are not excluded from coverage in your policy.  If you have removed a diving board or installed a pool safety cover, your carrier should be informed, as this may reduce your premium. 

When evaluating your pool management company’s insurance coverage, there are two important steps. First, make sure they have appropriate coverage. Some companies have policies through residential carriers that are not designed to cover the types of exposures encountered in commercial pool operations. There are only a handful of carriers that have programs designed for commercial pool maintenance and management companies. Your pool company should be with one of these carriers. 

Second, consider the coverage to exposure ratio.  A company that operates locally managing 50 pools has much less exposure than a company that operates regionally or nationally managing 500 pools. Naturally, the larger company has more exposure and should therefore have more coverage.  Comparing the coverage to exposure ratio will help you determine which company actually has superior coverage.

If you would like more information on reducing liability for your association, ask a qualified pool management company that understands the concepts of risk management to do a risk assessment on your facility.  In addition, you may contact the non-profit Greater Atlanta Water Safety Alliance (GAWSA). They can help you with risk assessments as well as water safety programs and resources for your community pool.