Peter Beireis had dealt with liability claims before. But this time was different. This time, when the lawsuit arrived, it wasn’t just the facility’s name on the page. His name was right there in black and white, too. “Once you get your name on a suit, it’s a definite wake-up call,” says Beireis, aquatic director for Newark, Calif. “You’re sitting there with a family and a house and everything else. Could you potentially lose all of that if you’re doing a poor job? Heck, yeah!”
Fortunately for Beireis, he’s doing a good job, and this lawsuit likely will go the way of so many others before them: to a dismissal.
But every year, plenty of aquatics facilities with operators who aren’t doing such a good job are hit with liability lawsuits that stick. Experts say it's especially true for newer managers who aren’t yet familiar with all the liability risks an aquatics facility entails — from injuries to recreational water illnesses to sex abuse to drowning — and the steps needed to mitigate those risks.
“A lot of times we get new aquatic managers or people who were given the program, and they’re looking at it going, ‘OK, I’ve got lifeguards, so I should be good.’ But the issue is them not knowing the scope of the liabilities that exist,” Beireis warns.
Those are the kinds of facilities plaintiff’s attorneys prey on, says Gareth Hedges, general counsel and director of consulting for the Redwoods Group, a Morrisville, N.C.-based risk management and insurance company serving approximately half of the YMCAs in the U.S., along with some JCCs and camps.
It’s hard to know how many liability lawsuits aquatics facilities face each year, Hedges says, because such legal actions often are generically filed under personal injury or negligence. But he’s seen firsthand what can happen when a plaintiff’s attorney gets involved.
“They’re going to look top to bottom through everything,” Hedges says. “They will try to find everything you do that does not meet the standard of care. They will attempt to frame you as an unsafe facility that had no business operating a pool.”
And because many liability suits never surface until years later, facilities can’t rely on memory or hastily thrown together accounts to defend themselves.
That’s why even if the worst should happen, facilities with proper documentation and procedures are more likely to survive litigation. Conversely, those are the same facilities where the worst is less likely to happen, simply because the facility is operating properly. “It’s a lack of safety that brings on liability,” Hedges says. “You can’t have an unsafe facility and take steps to protect against liability.”
Here’s a rundown of the policies and procedures experts say every facility should have in place to keep people safe — and protect against liability. They fall under five key categories:
Liability protection and safety start with the hiring process. Lifeguards, as a category, require possibly the most care in recruiting, and they must be carefully screened for knowledge, skills and abilities, says Shawn DeRosa, Penn State University’s aquatics director.
“Do not simply trust that someone with a current lifeguarding certification is still able to perform the skills taught during the certification course. Verify this before extending an offer of employment,” warns DeRosa, who’s also a trained attorney and owner of DeRosa Aquatic Consulting in State College, Pa. One way to do that, he says, is with a written pre-hire exam and skills-screening test.
Additionally, many lifeguards are minors, so they’ll need to have a work permit that must be verified each year, says Aaron Roth, aquatic assistant at the East Bay Regional Park District of Union City, Calif. At his agency, staff members also are fingerprinted, though that’s only done once in a person’s career.
In the same way, operators need to keep lifeguard certifications on file, and develop a system to track when those certifications expire, Beireis says.
Because staff members work directly with children, Hedges recommends doing thorough criminal background checks and consulting prior employers and references. A social security trace also can reveal any part of a worker’s history that was left out during the application process, he adds.
As a final precaution, Roth’s agency requires staff members to sign a code of conduct that stipulates no drug use or sexual harassment, which is kept on file. “You’ve got to have all your bases covered,” he says.
Each day, Roth’s crew spends about 30 minutes inspecting the facility before it opens — and logging the inspection.
“We learned that if we don’t have this daily inspection, we’re not 100 percent sure it’s ready to go,” he says. For example, AEDs run self-checks. But without the inspection, an AED could report a fail without anyone realizing it until it’s needed. “The worst time to figure out if it’s ready is when you need it,” Roth says.
Along with AEDs, facility inspections should include all emergency equipment such as oxygen tanks and first aid kits. Whatever equipment might be needed as part of the facility’s emergency action plan should be checked, tested and logged as ready to go.
For mechanical equipment such as heaters, pumps and motors, Beireis hires equipment maintenance specialists. Manuals outline how to address the most common problems. But he says training is key to make sure they really know how to maintain the equipment. “A manual will only get you so far,” he says. “You need that familiarity from a hands-on standpoint.”
And don’t forget to log all equipment checks and maintenance.
Once the day is over, a final inspection should be done to make sure all equipment is put away properly and still in working order. Again, all of this should be logged for future reference.
3. Water Quality Management
This area has become even more important for operators to monitor, thanks to new best practices standards from the likes of the Model Aquatic Health Code and the increase in recreational water illnesses, Beireis says.
He uses three key water-quality management checklists on a regular basis to keep his combination indoor waterpark/lap pool operating at optimal safety:
•A standard chemical log
•Flow rates along with influent and effluent readings from the filter
•Chemical controller changes or corrections
Beireis’ senior lifeguards are the first defense against water-quality issues. They are trained in basic pool water chemistry, and test the water daily for proper pH and chlorine levels. But if it’s a busy day and they encounter an issue, he says, it’s not uncommon for them to check the water 10 or 12 times, logging each test. “I don’t want to be the guy who just checks my water the minimum number of times required because who knows when the health inspector is coming?” Beireis says.
With this data at his disposal, Beireis can quickly check his water-quality history if, for example, someone comes in claiming they received a rash from using the pool days earlier. “We’re kind of the scapegoat for the medical community,” Beireis says. “Doctors will say, ‘Oh you were in the pool. That’s where you got that.’ But it’s not necessarily the pool.”
Having the proper water quality management documentation in place allows Roth to dispel those claims — and potentially head off liability. “The most diligent operator is going to be subject to liability,” he says. “But if you’ve done your due diligence, you’ll be well prepared to handle those legal issues as they come forth.”
4. Water Safety
When it comes to water safety, nonswimmers, especially children, are the biggest risk. That’s why experts such as Hedges recommend that all children be swim tested and then visibly marked by their abilities. Then nonswimmers should be restricted to shallow water and given additional layers of protection. Another smart way to address nonswimmers is to actively engage them in swim lessons, Hedges says. Again, all of these steps should be documented.
As another layer of protection DeRosa recommends fitting non-swimmers with U.S. Coast Guard approved life jackets. To avoid liability issues with proper fitting, aquatics facilities can simply provide the jackets with information about fitting. “The benefits of having a life jacket program far outweigh the concerns about liability,” he adds.
Groups or parties present another major risk area for water safety, warns Roth. His agency documents all groups that are planning to come to the facility, then sends them policies, procedures and safety protocols ahead of their visit. Once the groups arrive, staff members go over the safety rules again. These conversations are documented, too. “It’s important to go that extra step with groups because they just want to get in the water," Roth says. "They don’t want to hear the rules.”
And if someone goes missing, whether from a group or not, Roth’s crew enlists a missing persons form, which serves as a flow chart for how to proceed, as well as procedural documentation. For example, if someone is missing but didn’t even bring a swimsuit, that elicits a different response than if someone is missing and was last seen in the water several minutes ago, Roth says.
5. Lifeguard Training and Monitoring
Often when it comes to questions of safety and liability, lifeguards can make or break a case, say experts. That’s why it’s so important to pay special attention to your guards — and document their performance.
The first place to focus is training, says Roth. It’s crucial to know state and local training requirements as well as industry standards. For off-season training, the standard is four hours per month. In season, that jumps to four hours per week or every other week. Regardless of when or how much training, he says it’s important to track who attended the session, who did the training, and the topics covered.
Without that documentation, Roth says facilities have little chance defending against liability claims. “If they can prove you’re not up to your records on that, you’ve already lost your case,” he notes.
DeRosa adds that lifeguards need to be trained to understand and implement the facility’s emergency action plan, or EAP. Then they need regular training and testing to ensure they can perform the EAP.
While on the stand, each guard needs to know where their zone of coverage is located, Roth says. His agency uses a map of the facility that shows the lifeguard chairs and where each chair’s zone of coverage begins and ends.
Operators also need to establish a clear sequence of rotations. Roth uses a dry erase board that shows open chairs and rotations. He takes a picture of the board for reference in case he needs documentation. “Usually in the case of a drowning, it isn’t going to come back to the facility until more than two years later, so you have to be able to track it,” he says.