Q: Our association wants to post “swim at your own risk” signs instead of providing lifeguards at our pool. What do we need to do to make sure we’re not liable for any accidents?  –Pennsylvania  

A: While an association with a private swimming pool is permitted to adopt a “swim at your own risk” policy at its pool and eliminate lifeguards, there are certain procedures and safeguards the association should be sure to enact and follow prior to this occurring.

To begin, the association should create, publish and circulate a policy called “Rules and Regulations for Unattended Pool Use” (or the like) to all of the unit owners.   The document should include language similar to the below, in bold letters on the first page:

THIS IS AN UNATTENDED “SWIM-AT-YOUR-OWN-RISK” POOL FACILITY – THERE IS NO LIFEGUARD ON DUTY.  USE OF THE FACILITY IS AT THE SOLE RISK OF THE INDIVIDUAL USING THE FACILITY. 

PARENTS/GUARDIANS ARE RESPONSIBLE FOR THE SAFETY AND CARE OF THEIR MINOR CHILDREN AND ASSUME ALL RISK(S) IN THIS REGARD.  

IN THE EVENT OF A SERIOUS INJURY OR LIFE-THREATENING EMERGENCY, CALL 911 AND THEN CALL THE MANAGEMENT COMPANY AT _________.

ALL OWNERS/TENANTS/RESIDENTS ARE REQUIRED TO COMPLETE A RELEASE OF LIABILITY FORM ON AN ANNUAL BASIS AND RETURN THE FORM TO THE MANAGEMENT COMPANY.

The policy should discuss unattended pool use, that key fobs are required for access to the pool area as the area will have an auto-locking access gate to limit access, issues related to guests and children, food and beverage consumption, and rules for conduct.

In addition to the policy, a liability release should be created and signed by all owners/residents on an annual basis (the association attorney should draft the release and the policy to ensure the association is best protected).

The association should also confer with its General Liability insurance carrier and/or its agent to ensure that the proposed shift to a “swim at your own risk” pool is acceptable from the perspective of underwriting so as to ensure that coverage will be present should a liability incident occur. While an association can never protect against all liability and risk for accidents or other incidents, it can assure that proper insurance is present to attempt to offset the risk.

As it relates to the physical pool area, there should be appropriate “unattended pool area” and/or “swim at your own risk” signage placed in the pool area as recommended by the association attorney and/or the insurer and the association should also verify if the local municipality also has any requirements.   The pool area must be locked out from access for safety purposes – typically a self-locking gate system is installed with key fob access in an unattended pool area.

Finally, going from a pool with a lifeguard to a “swim at your own risk” pool can become a potentially contentious issue within any community – given the subject matter, we recommend that the Board and management openly communicate the issue and the proposed switch to all owners before it decides to move forward with it as transparency will serve the best interests of all involved.

The original version was published in the May/June 2019 issue of CAI’s Common Ground Magazine: https://lscpagepro.mydigitalpublication.com/publication/?i=580131&ver=html5&p=67