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.