It’s almost Memorial Day. Holidays, nice weather and summer vacations lend themselves to socializing and outdoor entertainment and pools around the region are or will be opening to welcome summer festivities. While it is great to relax with friends, family or colleagues around the pool, the potential for injury also unfortunately increases. According to the Center for Disease Control, nearly 80% of the people who suffer unintentional drowning are male, and, among adolescents and adults, alcohol use is involved in up to 70% of deaths associated with water recreation. Wait! Before you cancel all those pool parties, let’s consider a couple of scenarios and what Ohio courts have done with them.
First, understand that generally, a pool is considered an open and obvious condition about which a landowner has no duty to warn. This means that ordinary people should be able to discern the hazards associated and protect themselves against it. In particular, a social host (like a homeowner) does not owe a duty to supervise adult guests while they are using the pool, even if the guest has become voluntarily intoxicated. Estate of Valesquez v. Cunningham, 137 Ohio App.3d 413 (5th Dist. 2000). In Valesquez, an adult guest became intoxicated and when the hosts and other guests went inside, he chose to remain in the pool alone. Later, he was discovered to have drowned. The court found that the hosts were not responsible for his unfortunate death. Does this mean you should encourage guests to get drunk and swim alone? No, but, in Ohio, generally, an adult of legal drinking age is permitted to drink and is also considered responsible for his or her own acts or behavior as a matter of public policy (in other words, as a general matter, one cannot get drunk and then blame their actions on someone else).
Second, what about horseplay in the pool? Remember Cousin Eddie? Again, when dealing with adult guests, a homeowner generally would not be responsible for failing to protect an adult from horseplay around or in the pool. In Gentry v. Collins, Case No. CA2012-06-048, 2013-Ohio-63 (12th Dist.), a guest at a party hosted by homeowners was injured when another guest threw her in the pool and she thereafter fell off the ladder while getting out. The court found the homeowners were not responsible for the injury and that the injured guest’s consumption of alcohol was not an attendant circumstance increasing any duty to warn.
Please note that the two situations discussed above involved adult guests who were injured. Be cautioned that if children were involved, a different standard may apply depending on the child’s age because the duty owed by and to children varies with their age and capacity. Similarly, if there is a special relationship that exists due to some other disability, for example, a guardian and an incompetent person, regardless of age, the duty owed may be higher.
The author, Erin B. Moore, Esquire, is a shareholder at Green & Green, Lawyers whose practice regularly includes consulting on and litigating recreational and premises liability issues. If you have questions in these areas, Green & Green has the experience and skill to assist.