After our segment on CTV Morning Live on July 9, 2014, a viewer wrote in to ask why she would be held responsible if someone was injured while acting “foolishly” in her swimming pool. This is a great question.
It is very important to remember that under Ontario’s legal system, anyone can be sued for almost anything. It only costs $181 dollars to file a Statement of Claim with the court. When I am asked by someone if they “could be sued”, I always answer “yes” because there is no gatekeeper at the court who forbids the filing of claims that are doomed to failure.
Of course that does not mean that every law suit will be successful. Nothing could be further than the truth. The real question is, if some was injured while acting foolishly in your home pool, could you lose a lawsuit or be ordered to pay damages. Every case is different and fact specific. However, it is certainly true that you could be successfully sued if someone were injured in your pool. As a pool owner it is very important to ensure that you have a decent amount of liability insurance. Catastrophic injuries including spinal cord injuries and traumatic brain injuries are frequent tragic consenquences of swimmimg pool accidents. If there is liability, damages could be very high, into the multi-millions.
In Ontario, all property owners and occupiers are responsible for taking reasonable care to see that people on their premises are reasonably safe. This duty is set out in the Ontario Occupiers’ Liability Act and is similar to the usual common law duty of care in a regulae negligence case. The duty is based on an objective test of reasonableness. For pool owners, this duty likely includes a duty:
- to ensure that your pool complies with all local by-laws and other safety codes,
- to ensure that the pool and surrounding is in a safe condition.
- to warn about where the deep end starts, and what that depth is
- to provide a ring buoy or rescue hook or other rescue supplies.
The owner / occupier’s duty is even owed to tresspassers –like the midnight fence jumpers pool owners worry about!
If someone is at your home and acting foolishly around your swimming pool, you may well have a duty to intervene to save them from themselves. Certainly, you would have a duty to control children and teens in and around your pool.
If a guest at your home is injured while acting foolishly, that foolish behaviour may result in a reduction of his or her damages based on contributory negligence. However, in high damage cases any percentage at fault could leave a home owner’s assets at risk without property liability insurance in place.