Legally Responsible

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.

Defining Responsibility

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.

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