As Swimming Season Nears, Study the New Safety Rules

By Benny L. Kass
Saturday, May 3, 2008

Does your community association have a swimming pool or hot tub? If so, you should be aware of a law that requires new safety measures.

The Virginia Graeme Baker Pool and Spa Safety Act, signed into law in December, aims to promote the safe use of pools, spas and hot tubs. Virginia Graeme Baker, 7, the granddaughter of former secretary of state James Baker, died in a hot tub in 2002. She was pulled below the water and drowned because she was trapped by the suction at the hot tub's drain. Thousands of people are injured or die in pool accidents each year.

The law sets federal requirements for drain covers at public pools. It also encourages states to increase safety requirements for all pools.

A public pool or spa is defined very broadly and includes condominium and community association pools that are:

· Open to the public generally, whether free or for a fee.

· Open exclusively to members of an organization and their guests or to residents of a multiunit apartment building, residential real estate development or other multifamily residential area, or to patrons of a hotel or other public accommodation.

A swimming pool or spa is defined as any indoor or outdoor structure designed for swimming or recreational bathing, and includes hot tubs, spas, portable spas and non-portable wading pools.

Major requirements take effect later this year. As of Dec. 19, public pools and spas must have approved anti-entrapment drain covers. Those that have only a single main drain (other than an unblockable drain) must also have at least one of the following systems: a safety vacuum release, a suction-limiting vent, gravity drainage, automatic pump shut-off or drain disablement.

In addition, the measure encourages tougher state laws. It authorizes the Consumer Product Safety Commission to establish a grant program to distribute safety-promotion money to states. To be eligible, a state's law must require, among other things, that all outdoor residential pools and spas be enclosed by barriers that will "effectively prevent small children from gaining unsupervised and unfettered access to the pool or spa." The state's law must also require that all pools and spas be equipped with devices and systems designed to prevent entrapment.

We often assume that because there is a lifeguard at the community association's pool, children will be safe. However, the CPSC estimates that 260 children under 5 drown in swimming pools each year.

The main hazard from hot tubs and spas is the same as that from pools -- drowning. The safety commission says it has received reports of more than 800 deaths in spas and hot tubs since 1990. About a fifth of those were drownings of children under 5.

Your community association board of directors should not wait until this new law takes effect to think about safety issues. Now is the time to act, because swimming pools here generally open around Memorial Day.

What should your board do?

First, your swimming pool should be operated and maintained by an independent pool company. This will have the legal effect of transferring risk and liability from your association to that company. "The association generally cannot be held vicariously liable for the negligent acts of independent contractors or their employees," said Steve Dickerson, senior vice president at USI Insurance Services in the Washington area.

The association also should insist that the pool contractor have adequate insurance. How much is adequate? Dickerson suggests "a minimum $5 million combined single general liability limit for bodily injury and property damage, with a $5 million annual aggregate limit."

Pool safety experts, including the CPSC, strongly recommend what they call "layers of protection," whether required by law or not. Among them:

· Install barriers around the swimming pool, such as fences and self-latching gates, to keep children away from the water. The CPSC recommends that fences and walls should be at least four feet high and installed all around the pool.

· During off hours, cover the pool with an impenetrable membrane that blocks access to the water.

· Supervise children. Flotation devices and swimming lessons don't prevent drowning.

· Keep rescue equipment and a telephone next to the pool.

· Check the drain cover regularly. If it is broken or missing, install the newer (and safer) type of drain cover, which is dome-shaped instead of flat.

· At the first sign of thunder or lightning in the area, evacuate the pool and surrounding deck.

We all want to enjoy the summer. Careful preparation and continuous monitoring will go a long way toward avoiding another child's injury or death.

For more information, see http://www.usicondo.com/publication.htm, http://www.cpsc.gov and http://www.theapsp.org.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com.