For Rent: Home with Swimming Pool (and a Shot at the Landlord)

A swimming pool is a nice amenity at a residence. That also holds true for a tenant who rents the home from the owner. But the legal situation changes drastically once the home is rented. Now the swimming pool, if not fenced, turns into a potential hazard and liability for the landlord.

A recent case ( Johnson v. Prasad; February 25, 2014) describes a perfect storm in landlord liability for the death of a child who drowned in a swimming pool. The same set of causes may never arise again. Yet the case decision stands, and it creates virtually absolute liability for the landlord.

Here is the story: The homeowners bought the residence in year 2000. The property included a below-surface swimming pool in the backyard. The pool had been installed in about 1976 or 1977. It complied with state and local law at that time. Had it been installed after 1996, a new law would have required providing one or more safety features; for example, erecting a high fence around the perimeter of the pool. In this case, there was no such fence. However, a fence did exist around the boundary of the backyard; and so the only way to access the pool was to walk through the residence and exit at a sliding glass door leading to the backyard. Although a security gate did exist over the sliding door, the gate did not have a self-closing mechanism.

The tenants were adults with no minor children. The tenants invited another family to a pool party. The family included a four-year-old boy, his grandmother, the grandmother's husband, and the boy's father. Everyone gathered at the pool. Everyone left the pool and walked back into the residence. However, the boy's grandmother did not close the security gate or the sliding glass door behind her. Those remained open.

The boy also went into the house. At that point grandmother and the father stopped watching the boy. Although no one saw him do it, he found his way back through the open door and to the swimming pool. By the time anyone noticed he was missing, he had reached the bottom of the pool. He remained alive for 19 days on a ventilator at the hospital and then died.

The boy's mother brought a court action for wrongful death against everyone involved B the landlord, the landlord's management company, the boy's grandmother, and the boy's father. (I know this sounds strange. I would guess that the existence of liability insurance took precedence over family loyalty. We lawyers think that way.)

Among other theories, the mother alleged negligence on the part of the various defendants. On a pretrial motion for summary judgment, the trial court ruled in favor of all defendants. On appeal the Court of Appeal reversed the judgment as to the landlord. The Court announced emphatically: We hold as a matter of law that the homeowners here, who knowingly rented a home with a maintained pool, owed a duty of reasonable care to the four-year-old boy to protect him from drowning in the pool. The Court then sent the case back to the trial court for determination of whether or not the homeowners had breached their duty by failing to install a fence around the perimeter of the pool or possibly a self-closing or self-latching mechanism on the sliding door, and whether that failure resulted in the child's death. (To explain, at trial a judge or jury could still decide that the landlord had not been negligent and had not contributed to the boy's death. This is what we call a "question of fact.")

What is striking about this decision is that it was not the tenant who sued or was sued. I can understand how the landlord owed a duty of care to this tenant. But what is the duty owed to the tenant's guest, over whom the landlord had no control and with whom the landlord had no relationship? And what responsibility does the tenant bear for bringing the four-year old onto the property?

The Court answered those questions by invoking what one might call the law of nature -- wherever that comes from. The Court postulated a reasonable expectation that any swimming pool would be used by children; that all children, and especially young children, naturally approach swimming pools whether or not they know how to swim; that children know no fear and possess no discretion when it comes to dealing with the danger of death by drowning. Therefore the landlord should have foreseen that this drowning might have occurred. The decision, in short, rests upon the justices' perceptions of a child's natural behavior.

One may disagree with that view of human nature. One may prefer to assign greater responsibility to the adults who forgot to supervise the child. Even so, we are now left with a rule of law that imposes virtually strict liability upon any landlord who rents a home with an unfenced swimming pool, at least as to drownings by minor children.