Tenants all over the District are being asked to sign apparently illegal waivers of liability as a condition of using their buildings' swimming pools.
The widely used waivers ask tenants to assume the risk of any accidents or personal injuries sustained by them, their family members or guests, while using the pool facilities, and to agree that the owner of the building and its agents "will in no way be liable for any such injury," or similar words.
The tenant also is being asked to agree, in some of these waivers, to indemnify the owners or building managers for any injuries sustained by any of the tenant's family and guests while using the facilities. According to attorney Peter Sklarew, such language seeks to protect the building owner from any financial loss or damages by making the tenant agree ahead of time to pay for any losses should an injured guest sue the owner and win.
Sklarew, a resident of The Windsor House, a 10-story apartment building on Rhode Island Ave. NW between 14th and 15th Sts., protested to Shannon & Luchs, the firm which manages the building, that the waivers were illegal when he was asked to sign one in order to get a pass to use the building's roof-top swimming pool.
District of Columbia housing officials say that Sklarew is right. "He is correct that the requirement that an owner makes a tenant sign a waiver of liability . . . conflicts with the housing regulations of the District of Columbia," said John Hampton, D.C. rent administrator, pointing to the same section of the D.C. Housing Regulations cited by Sklarew.
The District law states that no owner shall put into a lease or rental agreement a provision limiting the liability of the owner of residential premises from damage for injuries to persons or property caused by or resulting from the negligence of the owner or his employes in the operation, care or maintenance of the leased premises or any facility on the leased property.
"If the tenant is injured because of negligence of the owner, he can go after the owner in court," Hampton said. "The waiver has no meaning, none." In court, of course, he added, the question would be whether the alleged negligence of the owner was actually responsible for an accident.
Hampton said that the housing regulations prohibit an owner from demanding that a tenant sign any of a number of prohibited provisions and that, in any case, they are void and unenforceable.
Hampton and Thomas Butler, program manager of the housing inspection division of the D.C. Department of Consumer and Regulatory Affairs, also said that owners would be violating the Housing Act of 1980, the city's rent control law, if a tenant, whose lease agreement included use of the pool, was denied access to it because of a refusal to sign the waiver.
Butler said tenants with grievances can file complaints with his office, which is responsible for enforcing the housing regulations. Complaints that are documented are referred to the corporation counsel's office for criminal prosecution, he added.
Sklarew first refused to sign the liability waiver in 1980, when The Windsor House was managed by Legum & Norman Realty Inc. At that time, he filed a complaint with the D.C. Government and promptly received his pool pass, he said. He wasn't asked to sign a waiver the next two years.
He got his pool pass this year, too, from Shannon & Luchs, after adding to the waiver a sentence stating that it didn't apply to accidents or personal injury resulting from or attributable to negligence of the building owner or its agents. But he said he's worried about its widespread use and its effect on non-lawyers. "If the waiver is invalid, then it would not be held up in court," Sklarew noted. "But what it would do is deter unsuspecting people who have been injured from filing legitimate claims and seeking compensation.
"If someone were injured, management would wave the waiver in his face, saying, 'You signed this,' " he said, using the waiver as a tool to discourage the uninformed from filing suits.
J. E. Kopit, who is in the property management division of Shannon & Luchs, and Jack Gallagher, in charge of the 17,000 apartments Shannon & Luchs manages in Washington, suggested that the waivers of liability are widely used in Washington by apartment building managements. But both Kopit and Gallagher, saying they weren't lawyers, declined comment on the waiver's legality.
Other sources in the industry agreed that the waivers are widely used, though most management companies contacted were reluctant to discuss their policies.
Roger Weeks, senior vice president of Charles E. Smith Cos., said through a secretary that he would respond to questions about his company's practices regarding swimming pool waivers only if the questions were submitted in writing.
The waiver forms passed out by Shannon & Luchs, which took over management of The Windsor House in March, were almost identical to forms used by Legum & Norman in prior years. A spokesman for Legum and Norman said the company currently manages no rental apartment buildings in Washington with swimming pools.