If you own a pool it should be fenced. If it is not already, you should be thinking seriously about getting it done. Why? Well, an important reason might be to prevent tragic instances such as this one, in which a four year old Tulsa boy died after being found in a neighbor’s swimming pool.
This incident is made all the more tragic by how often incidents like this occur, and how easily they might have been prevented. According to the Oklahoma Child Death Review Board, in 2007, the most recent year for which they have complete data, twenty-seven Oklahoma children died by drowning. Ten of these deaths occurred in residential pools. We don’t know, at this time, the exact circumstances surrounding this most recent tragedy. What we can safely reiterate however, is the overwhelming importance of pool safety.
Many jurisdictions, including Tulsa, now have city ordinances requiring that newly constructed pools have safety barriers, but have been hesitant to require that pools already in existence retrofit barriers. However, a pool owner can be held financially liable for a wrongful death, even in jurisdictions that do not require existing pools to be fenced.
Generally, owners of a potentially dangerous feature, such as a pool have some duty to minimize the dangers of that feature. In some instances, this legal duty can extend even to those the owner did not invite onto the property. When children are involved this duty is heightened. This is known in legal circles as “attractive nuisance” liability. While it has not yet been formally applied to swimming pools by the Oklahoma courts, other jurisdictions have applied it.
For the attractive nuisance doctrine to apply, traditionally the following five conditions must be met. The area of the pool has to be attractive to children. Pools must be dangerous to children. The child injured must have been too young to appreciate the danger of the pool. The burden of fencing the pool must be outweighed by the risk to children. The owner of the pool must have failed to exercise reasonable care to eliminate the danger of drowning. If you are a parent, or even know any children, then you know how much they love pools. We are all familiar with the dangers of unattended pools, and the child has yet to be born who has any real appreciation of his or her own personal safety.
If you are the owner of a pool, and tragedy strikes, imagine how that alone will make you feel. Now imagine having to go into a court and try to convince a jury that it would have been too burdensome to install fencing; as that jury looks across the courtroom at a set of grieving parents. If you are a pool owner you should want to do the right thing for the right reason. If that isn’t quite enough, do the right thing because you don’t want to have to stand in that courtroom making awkward explanations to a judge and jury.