RisksOfSummer

The Pennsylvania Lawyer 46 July/August 2014
THE RISKS OF

47The Pennsylvania Lawyer July/August 2014
I
n evaluating cases involving
swimming pool injuries at apart-
ment complexes, personal injury
attorneys and defense counsel
need to be aware that these cases
present difficult choices for clients
and their attorneys.
All of the parties involved in these cases
understand — or should appreciate — that
causation is difficult to prove when there is
no clear chain of events leading to an injury,
when probabilities are involved, when mul-
tiple factors may have contributed to an
injury and when the implementation of
specific safeguards may or may not have pre-
vented a particular injury from occurring.
If you must analyze the risks of injury at a
particular facility or are an attorney pre-
sented with an injury that has occurred at
an apartment-complex swimming pool,
you must review specific laws that relate to
these swimming pools under applicable
state and local ordinances. Attorneys must
also identify whether and how any lapses,
mistakes or documented negligence caused
the injuries of a prospective plaintiff.
Aquatic Scenarios: A Spectrum
It’s a cliché that hard cases make bad law.
In evaluating a case, it’s also true that emo-
tionally charged cases are difficult to judge.
This maxim is particularly true where a
child has died in a preventable swimming
pool accident. Overwhelming psychologi-
cal factors such as guilt, anger, frustration
and sadness affect attorneys as well as the
family members and aquatics staff.
For purposes of evaluating cases and ana-
lyzing fact patterns, attorneys may find it
helpful to prepare both a chronological
timeline and a chart listing the conditions
and factors that could have resulted in the
injury. Attorneys should also determine
how highly regulated aquatics facilities are
in the applicable jurisdiction and whether
courts have strictly enforced common-law
negligence principles that relate to premises
liability, the doctrine of attractive nuisance
and the rule that violations of statutes may
constitute negligence per se.
Most real-world scenarios do not present
clear cases of noncompliance with state and
local laws, gross misconduct or gross negli-
gence. In most real-life situations, memo-
ries differ and emotions cloud judgment,
particularly in cases involving death.
Clear Case Demonstrating Liability
Let’s look at a clear and simple case in
which property-owner liability would be
fairly easy to demonstrate. An adult resid-
ing in Pennsylvania visits an apartment-
complex pool that is open to the public,
purchases a day pass to use the pool, begins
swimming laps and suffers a heart attack in
the deep end of the pool.
In this scenario let’s assume that the swim-
mer exhibits all of the classic signs of a
heart attack and slips below the surface of
the pool and that the pool is completely
unguarded, unattended, unmarked and un-
monitored for a period of more than 10
minutes. Let’s also assume that the adult
swimmer makes a calculated decision to
swim alone, even though that decision car-
By John B. Spitzer

ries a risk that no lifeguard or other person
will be available to help if he or she
becomes incapacitated while swimming.
Pennsylvania law imposes responsibility
on the property owner if this swimmer
is injured while swimming alone at an
unguarded, unmarked, unmonitored resi-
dential pool that is open to the public.
In Pennsylvania, both applicable statutes
and case law present a clear risk of liability
for the property owner under this scenario.
See 28 Pa. Code Section 18.1 (2013).
Section 675.1(a) of that code requires that
“[a]n adequate number of certified life-
guards shall be on duty at a recreational
swimming establishment when the recre-
ational swimming establishment is open
to the public.” Section 18.41 of that code
also requires that the operation of “public
bathing facilities shall be such as to reduce
to a practical minimum the danger of
injury to persons from drowning. …”
Pennsylvania case law is also clear that
property owners who have notice of a
dangerous condition have an obligation
to use reasonable care to protect business
invitees from harm. Commonwealth, Dept.
of Transportation v. Patton, 686 A.2d 1302,
1305 (Pa. 1997) (citing Restatement of
Torts, Second, Section 343). In particular,
Restatement of Torts, Second, Section
343A, comment f, states that property
owners should reasonably expect that an
invitee may “proceed to encounter a known
or obvious danger because to a reasonable
man in his position the advantages of
doing so would outweigh the apparent
risk.” For example, a reasonable adult
swimmer who enters a public aquatics
facility on a sunny, hot and humid August
day may conclude that the benefits of
cooling off and obtaining relief from the
stifling heat may outweigh the apparent
Most real-world scenarios
do not present clear cases
of noncompliance with
state and local laws, gross
misconduct or gross negligence.

49The Pennsylvania Lawyer July/August 2014
risk of swimming alone at an unguarded
swimming pool.
In this hypothetical case the injured party’s
attorney would have no difficulty proving
negligence. See Rivera v. Philadelphia Theo-
logical Seminary of St. Charles Borromeo,
507 A.2d 1, 17 (Pa. 1986) (applying Penn-
sylvania law concerning premises liability);
Castro v. CLK Multifamily Management,
LLC, 2013 WL 300744 (E.D. Pa. Dec. 3,
2013) (applying Pennsylvania premises
liability law on property owner’s motion
for summary judgment) (available at http://
scholar.google.com/scholar_case?case=6731
49011044552210&q=castro+drown+penn
sylvania&hl=en&as_sdt=6,39). See also
Myers v. Rosedale Beach Club, 2012 WL
6951854 (Pa. C.P. 2012) (involving settle-
ment of Pennsylvania drowning case).
Real-World Scenarios: Proving Causation
At the other end of the clarity spectrum, an
attorney bringing a case against a property
owner typically finds that the facts are in
dispute, memories are unclear and testi-
mony is affected by obvious conflicts of
interest and strong emotions.
In this difficult and confusing context,
attorneys may be unable to prove causa-
tion, even though the property owner
clearly failed to comply with the state
or local requirements described above.
For example, an injured swimmer may
have been out of control, behaving abnor-
mally, visibly intoxicated or otherwise irra-
tional at the time of the injury. The
swimmer may have ignored lifeguard warn-
ings to leave the pool area or ignored signs
warning swimmers not to dive in particular
areas and nevertheless engaged in danger-
ous diving or acrobatics in a shallow area
of the pool.
In rejecting this type of case, personal in-
jury attorneys would properly conclude
that they would have difficulty in proving
that the property owner’s operation of
an overcrowded but otherwise properly
operated pool was the actual legal cause
of the injury to the swimmer; in this type
of case, mere overcrowding, for example,
would not be sufficient to demonstrate
the critical causation element of property
owner negligence.
Likewise, pool patrons may have ignored
clear and obvious signage or dangers such
as markings declaring “No diving,” “No
lifeguard: Swim at your own risk,” “Swim-
mers must be at least age 18,” “Persons
under age 18 prohibited from swimming at
all times,” “Pool closed: Swimming prohib-
ited,” “No swimming when lifeguard is not
present in lifeguard stand” and “Persons
under age 18 must be accompanied at all
times by a parent or legal guardian while
on pool grounds.” The pool patron’s disre-
gard of known or obvious dangers — and
subsequent injury resulting from those
dangers — may also make it impossible for
that person’s attorney to prove causation.
Hard Cases
A more difficult case involves conflicting
testimony regarding a child swimmer who
drowns in a well-marked, guarded and
monitored residential apartment-complex
pool. In a case involving this type of swim-
ming pool death, an attorney must evaluate
the following factors before taking the case:
• Does the facility have a sign warning
guests that death or serious injury could
result from the failure of swimmers to read
and understand warning signs?
• Does the facility warn guests to follow all
lifeguard instructions?
• Does the facility warn guests not to swim
when a lifeguard is not present?
• Does the facility warn guests of the con-
sequences of swimming alone, including
the risk of death or serious injury?
Case Evaluation
Before taking a pool-injury case, a personal
injury or defense attorney must review:
• The applicable statutes.
• The applicable case law.
• The difficulty of proving key facts as
they relate to the chain of events leading up
to the injury — that is, personal injury at-
torneys may reject a case if they are unable
to prove that a deficiency in pool operation
was the actual and legal cause of the injury.
• The need for expert testimony regarding
causation, background, specific examples of
defendant’s negligent conduct, ways in
which defendant’s negligent conduct
caused the drowning and actions the defen-
dant could have taken to prevent the
drowning.
Steps in Analyzing a Case
Steps to take in analyzing a hypothetical
case that involves the issue of whether con-
ditions are so dangerous that a swimming
pool requires a lifeguard or must be closed
include:
• Detailed factual analysis.
• Causation analysis.
• Credibility of claimant.
• Case research. (For example, are there
any precedents establishing that a pool was
so overcrowded that failure to close it is ev-
idence of negligence?)
• Case handling procedures. (See the excel-
lent article “Cause of Action for Injury or
Death Against Owner or Operator of Non-
residential Swimming Pool,” by Beth Holl-
iday, originally published in 58 Causes of
Action 2d 1 [updated in 2014]. Although
the article deals with nonresidential swim-
ming pools, the cases and checklists in the
article provide a road map for investigation
An attorney bringing a case against
a property owner typically finds
that the facts are in dispute, mem-
ories are unclear and testimony is
affected by obvious conflicts of in-
terest and strong emotions.

and handling of cases involving residential
swimming pools, particularly those that are
open to the public and considered to be
public bathing places.)
• Applicable state statutes and statutory
exceptions, codes, cases and restatements of
law, including Section 343A of the Restate-
ment of Torts, Second.
For example, as mentioned above, to
demonstrate negligence an attorney must
show the existence of a duty or obligation
recognized by law, a breach of that duty, a
causal connection between the breach of
duty and the resulting injury, and actual
loss or damage.
But courts in different jurisdictions may
reach markedly different conclusions when
they apply these principles to specific and
complex cases. Compare Castro v. CLK
Multifamily Management, LLC (applying
Pennsylvania law in deciding motion for
summary judgment in negligence case;
case is currently on appeal before the 3rd
U.S. Circuit Court of Appeals) with Yi v.
Pleasant Travel Service, Inc., 911 F. Supp.
2d 907 (Nov. 28, 2012) (denying defen-
dant’s motion for summary judgment,
quoting Restatement of Torts, Second,
Section 343A, comment f, and holding
that whether a lifeguard was necessary was
a jury issue).
The failure of the victim’s mother in Castro
to monitor her child presents a difficult
causation problem. Even if a pool was not
operated in compliance with applicable
statutes or ordinances or if the property
owner violated a specific statute, a fact-
finder could view the parent’s failure to
monitor her child to be the substantial
cause of the child’s death.
Finding evidence of negligence or negli-
gence per se, some state courts might per-
mit this type of case to go to a jury, which
could find that the pool defect was the
proximate cause of the injury.
A plaintiff taking this case could also argue
that, for example, the pool gate lock was
defective, making the property owner liable
to a trespassing child on an attractive-
nuisance theory.
In sum, both the law and the facts involved
in this case should make an attorney care-
fully consider whether to take the case in
the first place. ⚖
• • • • •
John B. Spitzer practices law in Pennsylvania and has
experience in the field of workers’compensation defense.
He has worked for three national legal publishers and has
written more than 50 articles, annotations and columns that
have been published in bar journals, periodicals and books.
He has also worked at several aquatics facilities over the
course of many years and has three active lifeguard/aquat-
ics/pool operator certifications. He also serves on the board
of a condominium association that manages a swimming
pool for its residents and guests.
If you would like to comment on this article for publication
in our next issue, please send an email to editor@pabar.org.
To demonstrate negligence an
attorney must show the existence
of a duty or obligation recognized
by law, a breach of that duty, a
causal connection between the
breach of duty and the resulting
injury, and actual loss or damage.

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