Over the past year, many of us have missed out on seeing friends and loved ones. If you are planning a summer gathering to make up for lost time, we urge you to consider water safety, especially if you own a backyard swimming pool.
With Massachusetts schools about to start summer break, there is a high level of distraction in many homes. Households may have family members working remotely and summer may add to the unpredictable schedules we established during the COVID-19 emergency. But you must be vigilant if you own a pool because the risk for injury is very real. One can drown quickly, in a matter of seconds, and those injured are often young children.
According to the Consumer Product Safety Commission (CPSC), an average of 397 children were killed in swimming pool or spa submersions each year from 2016 to 2018. These children were all under 15 years old. During the same period, there was also an annual average of 6,200 children under 15 treated at hospitals for non-fatal injuries associated with pool or spa submersions.
Already in Massachusetts this year, we have seen several lives lost or nearly lost to drownings in swimming pools, ponds and lakes. In this blog, we focus on how homeowners can reduce the risk for injury and drowning in backyard swimming pools, and their legal responsibilities.
Massachusetts Property Owners Have a Duty to Use Reasonable Care
In Massachusetts, homeowners have a responsibility to use reasonable care to keep their property in reasonably safe condition. When it comes to swimming pools, a property owner’s duty starts with following Massachusetts building regulations to secure pools. They must also maintain safe areas around pools.
It is paramount that Massachusetts homeowners also exercise caution with alcohol. Homeowners can reduce the risk for many drownings and injuries by simply limiting their own alcohol consumption and that of all their guests of legal drinking age. Minors should never be allowed to consume alcohol or a homeowner can face criminal charges and a civil lawsuit if someone is injured.
Secure Your Swimming Pool With Strong Fencing
In Massachusetts, the state building code requires property owners to secure swimming pools behind 4-foot high fencing. There are different specifications for above-ground and underground pools, along with pools that use one side of the home as part of the fence.
Pools must be secured with locking devices that face outward away from the pool. The locks must be self-closing and self-latching.
Keep Pool Areas Free From Hazards
Be aware of other potential hazards beyond your actual pool. Your pool area may have outdoor furniture, rafts and floats, a diving board or a slide. One way to prevent a pool-related injury is to limit pool accessories. Secure the products you buy out of sight when you are not using your pool.
We caution you about purchasing diving boards and slides. Accidents involving these products can be serious, resulting in a head injury or a spinal cord injury, which can lead to long-term disability or death. Many homeowners have decided these are just not worth the potential safety risk.
Recognize that these products can be poorly designed or incorrectly installed. A product may not be the right fit for your pool design or reliably support your guests, even if it meets CPSC safety standards. However, if you choose to make a purchase, you should always hire an experienced pool professional to assist you with installation and your homeowner’s insurance agent to make sure your policy provides coverage.
Protect Young Children
In Massachusetts, property owners are responsible for securing pools from young children. Property owners can be held liable for drowning or other injuries suffered by young children, whether they are invited guests or are trespassing. The law recognizes that young children may not understand when they approach a potential hazard. As a property owner, think about how your pool looks from the street, from your yard and from inside your home. Bright-colored rafts and large crowds can quickly capture a child’s attention. Then think about how you have secured your pool.
Keep Gatherings Small
When you invite guests over, keep gatherings small so you can observe the pool area and enjoy the company.
Closely Monitor Guests Near Your Swimming Pool
Never invite anyone over to your home to use your swimming pool when you are not there or are engaged in another activity, such as work. Ask if adult guests know how to swim and if children have attended swimming lessons.
If you have young children, commit to watch them and any friends they invite over closely, even if they are not using your pool. Limit the size of gatherings so you can give the children your full attention.
Make the same commitment to safety if you are the parent of a teenager, even if you normally give them more freedom. Set summer rules and make sure your teen understands: they can only have friends over when you are home and gatherings should be kept small. They should always ask before using the swimming pool and you will not permit alcohol.
Whenever you have any guests over, check that your pool is fully secured before they arrive. Not just from outside, but also from guests and children in your home and backyard. Once your guests arrive, it can help to utilize a pool camera, sounding alarm or other technology, even if no one is using the pool. You can also take the low-tech approach of sitting outside where you can see both the pool and the gate. This step shows your guests and children you are truly committed to safety and want them to have fun, but also act responsibly so everyone gets home safely.
Restrict Alcohol Consumption by Your Guests; Never Allow Teens to Drink At Your Home
Carefully consider whether you want to allow your guests to consume alcohol in your home, especially when they come over to swim or are driving. This decision comes with a lot of responsibility. The easiest approach is to not allow alcohol consumption. If you do allow your guests to drink, practice moderation and good judgment. Never let them drive home under the influence.
As for swimming, remember that alcohol and pools are a dangerous combination. According to the Centers for Disease Control and Prevention, alcohol use is involved in up to 70 percent of deaths associated with all water recreation. Drinking beer or liquor in the warm weather can contribute to dehydration, which can raise the risk for drowning and submersion injuries.
Massachusetts recognizes social host liability. There can be serious consequences for bad decisions. Homeowners can face criminal charges, including jail time, if they allow minors under 21 to consume alcohol at their home or any property they control, under M.G.L. c. 138 § 34 . Parents can also be criminally charged and convicted if police can prove they left their home and were aware minors were consuming alcohol there in their absence. Minors can also be criminally charged.
In addition to criminal charges, a homeowner can also face a civil lawsuit from those injured as a result of a minor’s alcohol consumption at their home.
Limit Cell Phone Use and Distractions
One can easily become distracted by an email, text or social media and this can be dangerous if you have a pool. If you are checking your cell phone, you could miss the moment someone needs your help. Every second counts when it comes to saving someone from drowning. The best approach is to limit cell phone use and enjoy your guests. Keep both your home and cell phone nearby, but for emergencies only.
Free Legal Consultation – Boston Personal Injury Attorneys
At Breakstone, White & Gluck, our attorneys provide aggressive representation and are committed to achieving the best result for clients. Founded in 1992, our personal injury law firm specializes in representing those injured by the negligence or wrongdoing of others and our attorneys have been consistently recognized by Super Lawyers and Best Lawyers in America. We have won numerous record-setting verdicts and settlements in negligence, product liability and medical malpractice cases in Massachusetts. We offer safety tips as part of our Project KidSafe campaign, through which we work to prevent injuries to children and families.
If you or a family member has been injured, learn your legal rights. We represent clients across Massachusetts, including in Boston, Cambridge, Somerville, Quincy, the North and South Shores, Cape Cod, Worcester and Central Massachusetts. For a free legal consultation, contact one of our Boston personal injury lawyers at 800-379-1244 or 617-723-7676 or use our contact form.
It is important to maintain your yard and keep it safe at all times. But this summer, as Massachusetts recovers from the COVID-19 pandemic, more people will likely spend more time at home. This means you must take extra care in protecting your home, your family and neighbors from common backyard injuries, such as falls, dog bite injuries and swimming pool accidents.
In Massachusetts, homeowners have a duty to make a reasonable effort to keep their property reasonably safe so lawful visitors are not injured. When a homeowner fails to maintain their property and someone is injured, this may result in a premises liability claim.
When children are involved, homeowners have a greater duty. Under attractive nuisance laws, property owners may be held liable if a young child is injured by an unsafe condition on their property, even if the child is trespassing. These laws recognize that children may not understand potential dangers or that they are trespassing.
Massachusetts Attractive Nuisance Law
M.G.L. c. 231, § 85Q states that a person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon under certain conditions.
A landowner can be held liable in part if they knew a child was likely to trespass or reasonably should have known, and if the landowner knew or reasonably should have known there was an unreasonable risk of death and serious bodily harm to children.
Protect Your Front and Backyard This Summer
Protect Your Pool
In Massachusetts, homeowners must enclose pools with fences which are a minimum of four feet and taller if necessary for safety. The fence should have a self-latching, self-closing gate and lock at least four feet off the ground. These requirements are meant to protect young children, as well as your lawful guests by slowing access down to your pool. A few steps you can take to secure your pool:
How old is your pool lock? Carefully inspect the integrity of your pool lock.
Inspect your fence. The Consumer Product Safety Commission published this pool safety guide on different types of fences and key specifications, such as how much space you should have between and under the fence panels. See page 6.
Consider a pool alarm. Your fence is your primary defense to keep young children out of your pool. Children can move quickly and drown silently, before you even know they have found their way into your pool. An alarm can help you respond quickly.
Think “layers of protection.” Planting large shrubs in front of your pool fence is one way to slow children down; another added benefit is children won’t be able to see the pool and are likely to forget about it.
At the end of the day: Cover your pool. Remove pool ladders and floats from the pool area and out of sight of children.
Restrain Your Dog
As a dog owner, you have a responsibility to take care of your pet, including to feed it and make sure it gets proper exercise.
As a homeowner, you have a responsibility to restrain your dog. Under Massachusetts law, you may be held liable if your dog bites or attacks. Here are a few situations when homeowners may be liable for dog bite injuries.
First, you may be held liable if your dog bites a lawful visitor. You may also be held liable if you leave your dog alone outside and it runs off your property and injures a passerby.
Then there are young children. Too young to realize the consequences, they can wander onto your property without invitation and your dog may bite. You may not even see the child come onto your property. But this is another situation when a Massachusetts homeowner may be held liable for a child’s dog bite injuries.
Just like drownings, dog bites and attacks are a frightening and debilitating experience, for children as well as owners. Some describe it as the worst experience of their life. Many victims and loved ones suffer post traumatic stress disorder (PTSD).
What can you do to prevent a tragedy?
Invest in dog training. Hiring a trainer can help your dog master basic obedience skills.
Install a fence. Consider installing a regular fence around your yard. An invisible dog fence can be effective at keeping your dog on your property. However, it doesn’t prevent children from wandering onto your property. Fences can stop children or at least slow them down.
Remember you can’t predict how your dog will react. Many dog owners have said, “My dog is really good with kids,” just before the animal bites or attacks.
And the problem with young children in your neighborhood: a child may know you and your dog by name. They may routinely say hello when you walk your dog and have warm feelings about your pet. Your dog, however, may not feel or respond the same if the child approaches. If you have a dog, Breakstone, White & Gluck encourages you to secure and supervise your pet this summer. Remember, children are likely to be spending more time at home this summer and you may need to take additional steps.
If you have been injured, Breakstone, White & Gluck is experienced in representing young children and others after dog bites and attacks in Massachusetts. Please read our awards and settlements and contact us if we can assist you with a claim at 800-379-1244 or 617-723-7676.
$450,000 award: Child Suffers Facial Injury and Emotional Distress in Dog Bite Attack Details
$300,000 award: Elderly woman bitten by dog, which leads to infection, sepsis and wrongful death.
$150,000 award: Dog injures cyclist, causing bike crash and other injuries. Details
Use Your Backyard Shed
Pick up your yard each day. Pick up toys and bring in pool floats, accessories and towels so they don’t attract a child’s attention.
Certain toys, games and equipment should be used, then immediately locked away. These include portable pools.
To make this easier, keep a key to your backyard shed nearby at all times this summer. Put it in your cell phone case or on a lanyard around your neck so you can easily access your shed as often as you need.
Protect Your Backyard This Summer
2020 has been a challenging year. While we are all limited by Covid 19 this summer, these are steps we can all take to protect our families, neighbors and others from unnecessary injury, and to protect ourselves financially.
Free Legal Consultation – Boston Personal Injury Lawyers
At Breakstone, White & Gluck, our Boston personal injury lawyers specialize in premises liability claims, including those involving swimming pool accidents, dog bites injuries and child injuries. Learn more about our law firm: www.bwglaw.com.
Swimming lessons have certainly changed over the years. Parents are signing children up earlier, as young as 6 months old, to get them used to the water. A recent WBUR report explored whether this is all for fun or if children in today’s swim lessons are actually learning enough to reduce their risk of drowning.
As a parent, ask your child’s swim instructor about their goals. Experts interviewed by WBUR said the goal should be water survival and broader pool safety skills.
“Aquatic safety is about multiple layers of redundancy, swim lessons just being one of those layers,” said a director from the YMCA in Greater Boston.
According to the report, another essential layer is strong supervision from parents, guardians and lifeguards. As personal injury lawyers in Boston, we want to add that a third layer is property owners. They must remain aware of their responsibility to properly maintain and secure pools, from pool fences to drains to diving boards.
A few insights from the report:
- Drowning is the leading cause of unintentional injury death among children in Massachusetts.
- There are very few studies which quantify the effectiveness of swim lessons.
- But one 2009 study has found children under 4 who take swim lessons have a significant advantage. The study, from the National Institute of Child Health and Human Development, found children who participated in swim lessons had an 88 percent reduced risk of drowning. The study examined 300 cases of unintentional drownings among children age 1 to 19 years old. Researchers only evaluated whether children participated in classes; they did not evaluate what skills children actually learned, so this is a future step.
- The American Academy for Pediatrics (AAP) had advised against swimming lessons for children under 4. After this study, the academy changed its recommendation in 2010, saying children ages 1 to 4 can develop water competence through swimming lessons. As for children under age 1, the AAP noted that “water-survival skills programs for infants may make compelling videos for the Internet, but no scientific study has yet demonstrated these classes are effective.”
In June, Olympian Bode Miller announced his family had lost his 19-month-old daughter in a swimming pool drowning in California. This tragedy has raised awareness about the risk of drownings, and the deep pain and devastation to families.
Drownings claim too many lives each year. Here in Massachusetts, a 2-year-old tragically drowned in his family’s swimming pool in Lynn earlier this month.
Nationwide, 463 children age 4 or younger drowned in 2016, according to the Centers for Disease Control and Prevention. This was an increase over both 2015 and 2016. This week, U.S. Sen. Chuck Schumer (D-NY) spoke about the rise in swimming pool drownings among young children and called for the federal government to investigate further.
What Parents Can Take From This Report
Asking Permission. Swim instructors should teach children to ask for permission before they get into the pool. They should always ask for permission, from parents, lifeguards or swimming instructors. Reinforce this lesson.
Proper Supervision. Parents should commit to watching children closely in the pool, even if the child is participating in a swim lesson. Carry your cell phone but set it aside. It is a scary thought, but in the time you take to send a text, your child could drown, even if they are a strong swimmer for their age. A child can drown quickly and silently under water.
When visiting family members and friends, consider leaving young children at home (with a trusted adult) or skipping the visit altogether.
Online Research. Research the swimming pool before you sign your child up for lessons. Look at the website to see the credentials of the pool owner and staff. Read online reviews. Also ask your friends and neighbors for feedback on the staff and what children are learning.
Another resource is the local town or city hall. Ask the health department about inspections and complaints which have been investigated. You will learn how well the pool is maintained and if the swimming pool owner responds promptly.
In-Person Research. Swimming classes can be busy, with a new round of children and parents starting classes every half hour. Still, take time to ask the swim instructor about their background and as we said, to explain their goals for the class.
About Breakstone, White & Gluck
The Boston personal injury lawyers of Breakstone, White & Gluck represent children and families who have suffered pool drownings in Massachusetts. If you are parent, we urge you to carefully plan and supervise your child at the pool. If you are a pool owner, you have a responsibility to properly secure your pool with a fence and make sure your children and others are protected from potential injury.
Breakstone, White & Gluck represents individuals in all types of personal injury cases in Massachusetts, including car accidents, bicycle accidents, pedestrian injuries, medical malpractice and premises liability cases. If you have been injured, contact Breakstone, White & Gluck for a free legal consultation at 800-379-1244 or 617-723-7676. You can also send us a message using our contact form.