Should a Pennsylvania Community Association Hire a Lifeguard to Monitor the Swimming Pool

What risks is an Association taking when they fail to retain the services of a lifeguard Is the money spent on a lifeguard a sound business decision  This issue is complicated and has been the subject of a great deal of debate. The discussion below highlights a few of the issues which should be considered in answering the above questions.

The issue can be broken into two main liabilities and forms of exposure which arise when discussing whether to retain the services of a lifeguard at your community association's pool.

The first is the regulatory liability under Pennsylvania Code and Public Bathing Law which compels certain pool owners/operators to have lifeguards on duty to protect the safety of swimmers. Violations of these regulations can cause exposure to enforcement and prosecution.

The second is the liability which arises under negligence or premises liability law. This occurs when a pool owner/operator owes a duty of care under all the circumstances to a pool user. There is a breach of that duty of care through negligent acts or omission by the owner/ operator or his agent, and the negligent act or omission is the proximate cause of a swimmers injury. In this circumstance the owner/operator of the swimming pool can suffer exposure to financial damages in order to compensate the injured party. See, e. g., Mahler v. United States, 196 F.Supp. 362 (W.D.Pa.1961), aff'd, 306 F.2d 713 (3d Cir. 1962).

These sources of liability and exposure are reviewed in more detail below.

Regulatory liability to hire a lifeguard under Pennsylvania Code Public Bathing Law is dependant upon whether your pool is open to the general public.

If your pool is not open to the general public and is used only by the members of the association and their invited guests, then the general provisions of the Pennsylvania Code and Public Bathing Law section 35 P.S. § 672, (which among other things require lifeguards to be on duty and require a permit to be obtained for a pools use), do not apply to your association's pool.

Condominiums and most other community associations have been removed from the "public bathing place" category by the state legislature and, although still regulated, are regulated as private bathing places not public bathing places. Nemacolin, Inc. v. Commonwealth, Dep't of Environmental Resources, 115 Pa. Commw. 462, 541 A.2d 811, 1988 Pa. Commw. LEXIS 332 (1988).

Therefore pursuant to the Code as interpreted in the Nemacolin decision most community associations are not required to hire a lifeguard to monitor the swimming pool.

However, if your community pool is open to the general public and people who are not members of your association, under code section 35 P.S. § 673 (2007) your community pool could be deemed a 'recreational swimming establishment' and be required to have 1 or more lifeguards on duty when the pool is open.

Code section 35 P.S. § 673 (2007) states a recreational swimming establishment shall mean a facility that is designed, constructed and/or designated for use by individuals for the primary purpose of swimming, where a fee is charged for admission. This definition shall include, but is not limited to, swimming pools, water rides, wave pools and swimming beaches and other outdoor swimming facilities. The term excludes those facilities owned by condominiums, other property owner associations, rental arrangements which include three or more families or social units, hotels or motels, campgrounds, private clubs and private organizations which do not provide access to the general public, swimming facilities used exclusively for hydrotherapy and residential swimming facilities used solely by the owner of a residence, his family and personal guests.

Accordingly, under section 673 your pool may likely be deemed a 'recreational swimming area' and will likely be subject to code section: 35 P.S. § 675.1 (2007) which states:  (a) An adequate number of certified lifeguards shall be on duty at a recreational swimming establishment when the recreational swimming establishment is open to the public.

Regulatory exposure to enforcement and prosecution for failure to hire a lifeguard under the Pennsylvania Code Public Bathing Law is dependant upon whether your pool is open to the general public.

If your community's pool provides access to the general public, is deemed a 'recreational swimming establishment' and is found in violation of the Public Bathing Law then under section 679 the association may be forced the to close and drain the pool by the authorities.

Section 679 states: 'the department at all reasonable times shall have access to, and are hereby empowered to enter upon, any and all parts of the premises of any bathing and swimming place used and let for hire to the public or individuals, and to make such examinations and investigations as shall determine the sanitary conditions, adequate number of certified lifeguards under section 4.1 and all hazards and dangers from fires or anything else and whether the provisions of this act and the rules and regulations of the department are being complied with or are being violated.

If it be determined upon such examination and investigation that any bathing or swimming place is being maintained contrary to the provisions of this act, such bathing and swimming place forthwith shall be closed to all persons, and the bathing or swimming pools be drained and kept dry until provision is made to comply with this law and permission given by the department to reopen the same. Prosecutions also shall be brought and carried to final judgment by the department against each and every person violating any of the provisions of this act.'

Therefore, under the above section the association may be exposed to enforcement and prosecution under the code for its failure to provide an adequate number of certified lifeguards if its pool is open to the public.

Liability and exposure for financial damages which arise under negligence and premises liability law are dependant on whether the association breaches its duty of reasonable care. 

Under Pennsylvania negligence or premises liability law a community association owes a duty of reasonable care to every person who enters its pool area. An association is responsible for everything that occurs within its pool and the surrounding area. It is the association's responsibility to provide a safe environment for all swimmers. It is also their responsibility to be pro-active in preventing accidents and injuries.

If there is a breach of that duty of care through negligent acts or omissions by the association or their agent, and the negligence is the proximate cause of an injury. Then the association is may be liable for financial damages as a result of the breach.

Under this theory of liability there is no rule or law which requires an association to hire a lifeguard. However if you take the two alternative situations, the benefit of having a qualified lifeguard on duty to limit the association's liability is obvious.

In the first instance imagine a community association which fails to hire a lifeguard and a second association with a properly trained and certified lifeguard monitoring the pool. Both associations suffer an incident which results in injury or death to a swimmer.  

The association who took measures to prevent the accident by hiring a properly trained, certified and qualified lifeguard is afforded a strong legal defense that it was not negligent and did not breach its duty, the defense is bolstered by the fact that it hired a properly trained and certified lifeguard and did everything in its power to avoid the occurrence of such an incident. 

The association who failed to hire a lifeguard unfortunately is not afforded such a defense.  

Under Pennsylvania negligence and premises liability law there is no rule which specifically requires an association to hire a lifeguard. However, as the above example shows a lifeguard can limit an association's exposure to financial damages in specific situations where an association's failure to hire a lifeguard cannot.  Therefore hiring a qualified lifeguard can help insulate the association from negligence liability and may prove to be a sound business decision.

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Brian F. Lafferty Jr. is an associate at McGovern Legal Services, LLC which has offices in Philadelphia, Pennsylvania and North Brunswick, New Jersey. McGovern Legal Services represents over eighty (80) community associations throughout Pennsylvania and New Jersey.  Brian is currently serving as the chair of the Communications Committee for the CAI Pennsylvania and Delaware Valley Chapter of CAI. Contact him in Philadelphia at (215) 238- 1005 or North Brunswick at (732) 246 1221 or blafferty@theassociationlawyers.com.