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Legal Std of Care

Published Jan 18, 2013 in Health & Medicine
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Describing the codes and legal standards related to swimming pools.

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Presentation Slides & Transcript

Presentation Slides & Transcript

Legal Concerns regarding
Aquatic Venues

Doug Farquhar, J.D.
May 9, 2012
Lexington, KY

National Conference of State Legislatures (NCSL)
Non-profit, bi-partisan organization of state legislatures
Members are all 50 state legislatures, 7,400 legislators and 30,000 legislative staff in 50 states, D.C. and U.S. territories. Quebec, Alberta and Scotland are members
Offices in Denver and D.C.
Among our goals - To provide legislatures with information and research about policy issues, both state and federal.
NCSL tracks state policy developments in all public policy areas.

Risks to Public/Private Venues
How can an Aquatic Venue be liable?
By operating a venue that is accessible
to the public
to paying patrons
to trespassers
Aquatic Venues are, by their nature, dangerous
Injuries from drownings
Slips and falls
Chemical maintenance
Public health threats

Can you Limit Liability?
"There is no Lifeguard Present"
"No Diving"
Properly trained lifeguards
Properly trained operators
Restricting Access
Fences, Gates, Enclosed Facilities
Signing away rights
Country Club members promise not to sue

Lawsuits against Aquatic Venues
August 2010, Arizona attorney Kristin Rooney filed a $26 million wrongful death claim on behalf of the family of 16-year-old Jesus “Jesse” Prado, who died May 14, 2010
April 2008,Vincent Agwouke, 17, drowned in the swimming pool at Westside High School after he and several other students jumped in, following a science experiment.
12 yr old drowned on a field trip, parents sued the city of New York for $20 million.
No Lifeguard on duty

Lawsuits Against Aquatic Venues
Mt. Laurel PA pool sued for $100,000
Man was running, injured while jumping into pool
Pool closed due to fear of lawsuits
Improper Pool Markings Lead to Quadriplegia: $5.2 million verdict for a young man who dove into the shallow end of a hotel swimming pool
The pool was not properly marked to identify the depth and restrictions on diving
Improper Supervision at Daycare leads to Near-drowning: 6 yr old girl who was attending "swim time" at her day care, she was left unsupervised in the pool

Lawsuits Against Aquatic Venues
Seneca Lake State Park, Geneva NY
Spray Park with Cryptosporidium
4000 cases before closed by the NY DoHealth
2538 represented by one lawfirm – Marler Clark

Wading Pool in Cobb Cty, GA
E. coli 0157:H7
Ga DofHealth found no Chlorine
Violation of County Rules
County Negligent

Legal Standard of Care
I was Injured
The product was defective
The defect caused the injury

“Legal Precedence has a wider application in areas without statutory standards”
CA Parks and Rec Society

Legal Standard of Care
Reasonable Person: the degree of care that a person or ordinary prudence would exercise in the same or similar circumstances; the standard which a property owner must observe to avoid liability for injuries to patrons
Determined by court cases (legal precedence), the foreseeability of harm to the plaintiff
Did the owner know or should they have known that their venue could cause an injury?
‘But-for’ the actions by the operators of the venue, would the plaintiff be injured?

Statutory Standard of Care
Based on Statutory or Regulatory law; takes precedence over legal standard of care
Determined either by agency personnel through regulatory process, or mandated by legislature, local council or Congress in statute/ordinance
Specifies the standard of care that an aquatic venue should meet
Sets requirements for local/state enforcement
Defines the legal standard of care

Industry Standard of Care
The Model Aquatic Health Code (MAHC)
Developed by CDC and industry leaders
Available for adoption by jurisdictions
Sets a new standard of care
International Code Council Aquatic Standard
Available for adoption by jurisdictions
Jurisdictions adopt ICC standards by reference
Sets a new standard of care

Policy Implications
Insurance may require property to meet state/federal /industrial standard
Coverage determined by adoption of standard
Lending Institutions may require properties meet a standard
Mortgage affected by adoption of standard
Courts may accept a state/federal/industrial standard as legal standard of care
Juries may find that standard available, not followed, led to injury
Aquatic Venue at fault – pay up!

Policy Implications
Who is at fault?
Owner of the Venue
Operator of the Venue
State Health Department
Local Health Department
Product Manufacturer
Product Applicator
Construction Company
Insurance Company

States That Don’t Require Operator Training
Certification Required
Knowledge Required
No Requirement
15 States don’t require Operator Training

Adoption of a standard lessens liability and insurance risk.
Creates a uniform standard of care.
Defines assumable risk for aquatic venues v. relying on juries or judges
Many questions linger…
This is inherently a state/local issue.
Will the MAHC take precedence?
Will the MAHC be able to address novel outbreaks?
Can the MAHC protect the aquatic industry from being sued out of existence?

Contact Information/Questions
Doug Farquhar, JD
National Conference of State Legislatures