An unfenced pool can transform a summer afternoon into an emergency within seconds. If you are caring for someone seriously injured in a pool accident, such as a near-drowning, you may wonder whom the law may hold accountable. The answer depends on who controlled the pool and who was injured.
The owner or occupant may be liable when no fence kept people out
The person who controlled the pool usually bears primary responsibility. New Jersey’s statewide Uniform Construction Code requires a barrier around newly installed or fully replaced residential pools capable of holding more than 24 inches of water. The barrier must be at least 48 inches high and have a self-closing, self-latching gate.
Towns may also enforce local zoning or property maintenance rules. A missing or broken barrier may suggest the owner failed to exercise reasonable care.
An older pool may not fall under the newest code rules unless someone altered or replaced it. Even then, an owner may still owe a common-law duty of reasonable care, depending on the facts.
Children may receive extra legal protection when a pool attracts them
New Jersey law gives an owner only a limited duty to an adult who enters without permission. Children are treated differently. An owner may be liable to a child who entered the property without permission when five things are true:
- The owner knew, or had reason to know, that children were likely to enter.
- The pool posed a serious risk of harm that an owner should not ignore.
- The child was too young to understand that risk.
- A fix, such as a fence, would have taken little effort or cost compared with the risk.
- The owner did not use reasonable care.
An older pool may not fall under the newest code rules unless someone altered or replaced it. Even then, an owner may still owe a common-law duty of reasonable care, depending on the facts.
Speaking with an attorney may help you identify who controlled the pool
Who is liable for an injury in an unfenced pool often depends on records and details, such as who owned or leased the property, when the pool was built and what safeguards were in place. A New Jersey attorney may help you gather deeds, leases, permits, installation records and photographs of the property, and determine which parties may share responsibility. Acting promptly may help you preserve that evidence.