The primary duty of aquatic facility staff is to ensure the health and safety of swimmers. Sadly, accidents will happen. I have been personally involved in several legal issues concerning pool equipment failure, gas heater installations and chlorine gas traveling into locker rooms. These unfortunate incidents led me to research ways to protect an aquatic facility from legal implications and embarrassments.
Lifeguards, maintenance personnel and other employees do not need a law degree, but they must understand the potential risks related to the facility. In addition, they should know what action is required in case there is an accident.
The development of an emergency plan provides all staff with the necessary training to handle an accident. In addition, creating appropriate forms to record the facts in an emergency will provide some measure of protection. It is suggested that legal counsel be consulted periodically to ensure that all appropriate plans and documents will enhance facility protection in case of a lawsuit.
All staff should understand basic legal terms and their application to a facility. “Negligence of omission” and “negligence of commission” are two important terms. Negligence of omission basically means failing to improve the facility, which then leads to an accident. In an entrapment case, failure to check the main drain to ensure it is secure and attached is a case of omission. Another example is a lifeguard sleeping and not at post; a subsequent drowning accident is negligence of omission.
Negligence of commission occurs when a staff member knowingly commits an act which is not authorized, which leads to an accident. Examples of negligence of commission are blocking a doorway, failure to repair a gate that should be self-closing and not adjusting the chlorine level after testing.
Another term which impacts the aquatics industry is “failure to warn.” Aquatic facilities should be actively engaged in providing all the proper signage necessary to warn swimmers of any danger. Confusing signage or lack of signage can be considered a failure to warn in the case of an accident. The entire staff also should address how to handle alerting swimmers of any potential accident.
Tapping Available Resources
Courts look at aquatic professionals to provide the highest “standard of care,” that is, information given to staff to assist in the protection of the consumer from harm. The Certified Pool/Spa Operator Certification course, offered by the National Swimming Pool Foundation (NSPF), enables all facility operators to learn the parameters to reduce the risk of injury. Investing in staff members becoming NSPF-certified instructors is another important way that parks and rec aquatic facilities can reduce training costs, reduce liability, and protect their facilities.
NSPF also publishes a powerful reference book and interactive CD called the Aquatic Safety Compendium, which is used by aquatic directors, property managers, pool builders, risk-prevention professionals, attorneys and law school faculty in understanding risks based on an objective view and scientific information. Comprehensive information on safety and legal issues is written by top experts in the aquatic industry.
Addressing The Issues
Protecting an aquatic facility from lawsuits, disputes and bad publicity can be enhanced through understanding the risks involved. Diving, drowning and entrapment are three risks of which the facility manager should be aware at all times. According to Steven Getzoff, an attorney for the Association of Pool & Spa Professionals (APSP), a diving accident occurs approximately once every 50 million dives and at least 50 percent involve alcohol. The Consumer Product Safety Commission estimates 250 drowning deaths per year for children under the age of five. Many of these incidents can be prevented by monitoring the pool at all times. YMCA and Red Cross training address these risks. The staff also should research and discuss articles from the Foundation for Aquatic Injury Prevention and Centers for Disease Control.
The unfortunate entrapment accidents of recent years were brought to the attention of legislative bodies, including the federal government. The passing of the Virginia Graeme Baker Pool and Spa Safety Act of 2007 (H.R. 1721), which President Bush signed into law, is the first federal pool and spa safety legislation. According to Getzoff, there have been 126 entrapment incidents since 1980, with 25 deaths. There are five potential entrapment hazards in swimming pool facilities: limb, hair, suction, evisceration and mechanical. The ANSI/APSP-7 Standard addresses all five hazards. The facility manager should review these standards and prepare a full report as to the facility’s compliance.
Recreational Water Illnesses are another type of “accident” that occurs at aquatic facilities, and they are on the rise, according to Dr. Thomas M. Lachocki, CEO of the NSPF, who states that, in recent years, outbreaks are increasing with over 3,000 people per year becoming ill in documented cases due to exposure to unsanitary pool and spa water. Speaking at the 2007 World Aquatic Health Conference, Lachocki said that it is likely that many more people are affected, but the outbreaks were not documented. Additionally, of the 800 people who drown in pools and spas each year, almost half are children. He concluded that catastrophic injuries, suction entrapment, chemical incidents and the associated law suits, insurance cost and negative publicity weigh heavily on future growth prospects.
It is critical for the aquatic facility managers to understand state and local health codes, and be in full compliance at all times. Some facilities have undertaken even stricter guidelines to further eliminate risk of an accident. It is the facility operator and manager’s responsibility to know and follow these codes. The “negligence of omission” as well as the “negligence of commission” may be the basis of legal action if the facility does not follow the health code.
Although accidents cannot be totally prevented, education and training of staff on every aspect of risk management will prepare them, and prevent unwanted legal lawsuits.
Connie Gibson Centrella is Program Director for the online Aquatic Engineering Program at KeiserCollege eCampus. She is an industry veteran with over 40 years experience in the pool and spa industry. She is a former pool builder with extensive knowledge in pool construction and equipment installation as well as manufacturing.