Is your Pool safe?

Can a homeowner be held liable for drowning accidents on their property? The simple answer is yes, the owner or occupier of a premises can be held liable for negligence in a drowning on their property. According to The Occupiers' Liability Act, 1990, "An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises."

The "occupier" can be an owner, tenant or anyone who has control over and responsibility for the premises. If there is a hazard or any unsafe condition, including but not limited to water hazards, the occupier has an obligation to adequately warn anyone entering the premises of the potential danger. The failure to take reasonable care to keep people safe around a home swimming pool, lake, or another body of water can result in a drowning death and expose the property owner to criminal charges and/or a civil suit.

According to a report prepared by the Drowning Prevention Research Center, drownings in Ontario are on the increase. In 2012, the most recent date that coroner's data was available, there were 178 drowning fatalities in Ontario, up from 160 in 2011. Some 80% of all drowning victims are men; however, most of these drownings occurred in Ontario lakes and rivers and many were associated with boating activities.  Most Ontario drownings victims are adults over age 65, followed by young adults, 24-29 years of age.

Drowning accidents can occur wherever water is present on a property such as in swimming pools, lakes, and streams, or even a bathtub or a sink. Drowning in swimming pools is a significant concern in Ontario, although less common than drownings in natural bodies of water which accounted for the majority of all drowning accidents in a 2012 study.  In that year, the Ontario Coroner reported that 48% of drowning fatalities occurred in Ontario lakes and 21% in rivers and streams.  Many of these incidents were associated with boating accidents, rather than swimming accidents.

Of the man-made water hazards, home bathtubs drownings accounted for 12% of the fatalities between the years 2008 and 2012. The most at risk for drowning in bathtub accidents are children under 5 when they are left unattended and seniors over 65 years of age.  Children under 5 are also particularly vulnerable to drowning in a private pool. In backyard and recreational pools, 37% of all drownings were children. Surprisingly, children who have participated in swimming lessons are no less vulnerable to drowning accidents than those who did not take lessons.

In addition to, and in accordance with one’s obligations under the Occupiers’ Liability Act, most municipalities have bylaws in place that specify safety features required for backyard pools and ponds.  Specifically, anyone with a backyard pool or pond may require a fence enclosure of a certain height and may also require a gate closure that cannot be reached by a young child.   Toronto bylaws require anyone with a private pool to have a fence around the pool area, as well as a gate that is kept locked at all times except when the enclosed area is being used.  Further, residents need to get a permit before erecting a pool enclosure fence.  In Toronto, a fence is required to surround any body of water that is used for swimming or bathing and is at least 60 cm deep.  Depending on the type of pool and property type, the fence height requirements vary from 1.2 to 1.8 meters, as defined in the Toronto bylaws.

In addition to drowning, property owners can be held liable for other water-related injuries such as spinal cord injury, fractures, concussions, and traumatic brain injuries. Diving in shallow water can cause a person to hit his/her head on the bottom of the pool and result in a broken neck or spine and paralysis. Running and slipping or falling on a pool deck, or hitting one's head on a diving board can result in a concussion, fractured skull, brain swelling and other permanent brain injuries. Once again, the property owner is responsible for all safety measures including but not limited to making sure that pool "hoppers" are deep enough if diving is encouraged and that the depths of the water throughout the pool are adequately marked. "No diving" areas should be marked and "no running" signs need to be prominently displayed around the pool area.

If you have been injured or lost a loved one in a water-related accident due to property owner negligence, you may be able to sue the property owner and their insurance company for negligence and receive compensation for your losses.  Call an experienced accident lawyer at Injury Lawyers of Ontario for a frank assessment of your case.