The trip to Paramount’s Kings Island in Cincinnati was to be a graduation celebration for the Class of 2002 at the Goldblatt Elementary School in Chicago. It was, until one of its 23 students went missing.
Derrick Spencer, 14, was later found at the bottom of the pool at the Quality Inn in Evendale, Ohio, still wearing his shoes, socks and shorts. The pool area had been opened to the group for a pizza party. Spencer had been pushed in by one of his fellow classmates and wasn’t found until nearly 30 to 40 minutes after he’d been reported missing, according to news reports.
The four adult chaperones on the trip were placed on paid leave for violating the school’s policy that states students in pools must be watched with a certified lifeguard and second adult supervisor. The motel had no lifeguard present, and it was unclear how many adults were supervising the students.
Spencer isn’t the only one who lost his life that summer in unguarded public pools. Across the nation, people of all ages drown in pools at hotels, motels, apartment complexes and condominiums, where lifeguards are typically optional and only a posted sign warns, “Swim at your own risk.” Every year, swimmers such as Spencer pay the ultimate price for taking that risk.
Aquatic experts remain divided over what should be done, especially when it comes to hotels, motels, vacation properties and apartments. Some side with property owners, who fear the liability providing a lifeguard entails. This group says it’s the users’ responsibility to behave in pools as directed. Others say it’s the owner’s responsibility to not only hire lifeguards, but also qualified supervisors who ensure they remain vigilant.
Courts have done little to clarify the issue, sometimes ruling in favor of owners/operators of unguarded pools and sometimes ruling against them. But while the debate continues, one fact remains undisputed: People are dying in unguarded pools.
Drowning in statistics
Knowing exactly how many is difficult. The Centers for Disease Control in Atlanta, which tracks drownings in the United States, does not distinguish between deaths at guarded and unguarded pools. In 2004, the latest statistics available, it recorded 3,308 unintentional drownings that were not a result of boating accidents.
In Canada, where record-keeping of death certificates is standardized across the country, 11 percent of drownings were at multiple-unit home pools, hotel/ motel pools, or nonresidential private pools between 1991 and 2000. It is unknown whether these pools were guarded or not.
However, some individual U.S. counties and states do maintain such records. In Orange County, Fla., 20 percent of drownings of people age 18 and under between January 2000 and August 2006 occurred in hotels. And in Houston, 60 percent of all drowning emergencies occurred at unguarded pools between 2005 and 2007.
Aquatics International’s own research uncovered nearly 75 drownings and neardrownings in 2006 and 2007 that occurred in unsupervised hotel or condominium pools. But even those numbers are artificially low because not all drownings were reported in the news and not all drowning reports were available for the search.
However, the stories are eerily similar: A 24-year-old man found unconscious in a hotel pool in the early evening. An 11-year-old girl found at the bottom of an apartment pool. A 51-year-old almost drowned trying to save his 6-year-old grandson in a hotel pool. In all these situations, there was no lifeguard, and CPR was administered — if at all — by another bystander.
Fun vs. safe
Why aren’t these pools, which are provided as an amenity and added bonus to the property, protected any better?
“Part of the problem is that these types of pools don’t look dangerous,” says Alison Osinski, president of Aquatics Consulting Services in San Diego. “Take kids to the beach with rip currents, they’ll perceive it as dangerous.”
But an 18-inch-deep wading pool doesn’t call out “danger” the same way, as was the situation in a case Osinski is working on. “The parent was sitting 25 feet from [the wading pool]. The parent would have been alert if the kid was playing on the beach, but didn’t perceive the shallow water to be dangerous.” The child, who was staying at a well-known hotel resort in Hawaii with her family, drowned.
New Jersey lawmakers want to make parents such as these responsible. They fashioned a bill that would require parents to accept full responsibility for their children before entering swimming areas at unguarded pools such as hotels, motels, campgrounds, private marinas and retirement homes. Parents could be fined for leaving children under age 16 unattended around pool areas. The bill came in response to several drownings of youngsters in the Wildwoods region of the Jersey Shore.
Assemblyman Jeff Van Drew, who sponsored the bill, says even if owners wanted to hire lifeguards, they can’t find them. He may have a point. Nationwide, municipalities report having a hard time staffing their public pools and are putting lifeguards on overtime to deal with the problem. A recent report from the American Red Cross showed that in Miami-Dade and Broward counties in Florida, where pools are populous, the number of lifeguards certified by the association has slipped 25 percent since 2004; however, that may be due more to funding issues than lifeguard shortages.
“This bill is the best alternative to keep children as safe as possible, while enabling motels and hotels to keep their pools open,” Van Drew says in a statement.
Maybe, but that doesn’t change the fact that too many owners’ priorities are about making pools fun, not safe, says Tom Griffiths, Ed.D., director of aquatics and safety officer at Penn State University in State College, Pa. These owners follow the minimal safety regulations, just to stay compliant. Many put in pools without thinking about what kind would serve the best purpose. For example, a pool does not need to be more than 5 feet deep for guests to enjoy. In many drowning cases, a victim has ended up in the “deep end” and can’t get out, Griffiths says.
“If your facility is limited to a maximum of 5 feet of water, you reduce the probability [of drowning] by 50 percent,” he says. In those cases, a non-swimming adult can rescue a child in 5 feet of water.
Even something as simple as proper striping on the sides and bottoms of pools, or an emergency phone available that doesn’t require a “9” to dial out is missing, says Maria Bella, president of Professional Pool Solutions, LLC, in Reading, Pa.
Sometimes managers aren’t even sure what the proper codes are.
“Very often the state requirements for safety lines, pool water clarity, rescue equipment and adults with children have not been met,” says Frank Pia, president of Pia Enterprises in Larchmont, N.Y., and chairman of the Health & Safety Advisory Committee of the American Red Cross. Even if managers try to be compliant, there’s a widespread lack of health inspections to even double-check that they’re within code.
But many hotel owners aren’t thinking in that way. “They’re distracted with number of rooms filled, how many conferences can they hold, getting rooms cleaned,” Griffiths says. “It’s such a stressful, all encompassing line of work, I think they’re led to believe if they put in a pool and ‘Swim at your own risk’ signs, they’re covered.”
That’s the contention of Joe McInerney, president/CEO of the American Hotel & Lodging Association in Washington, D.C. He says it’s the user’s responsibility to read all signs and follow the rules. “If they generally ignore them, shame on them. Signs are being posted for a reason,” he says. “If the guest doesn’t want to pay attention to them, we can tell they don’t want to use reasonable care. They’re going to do whatever they want.”
Others outside the hotel industry agree. “Patrons need to realize the hazard, take appropriate measures and bear some responsibility for their own protection,” says Dr. Julie Gilchrist, medical epidemiologist with the CDC in Atlanta.
Adults who know they can’t swim very well should take extra caution when in a pool and take note where the depth may drop off from shallow to deep, points out attorney Michael Haggard, partner at The Haggard Law Firm in Coral Gables, Fla., who has handled several drowning cases. “A hotel doesn’t have the duty to tell you [with] a depth marker every 6 inches.” Nor does a property manager have the responsibility for an adult’s poor decision making, especially if management exercised reasonable care. And if an adult lets a child through the self-latching gate into the pool area and is aware no lifeguard is on duty, it’s their responsibility to watch the child, not management’s.
But violating the rules is something a lifeguard can prevent. “Posting a sign stating ‘Swim at your own risk’ is like saying, ‘Have a nice day,’ ” Osinski notes. “What does swim at your own risk mean? It’s telling you there’s no lifeguard, but it’s not telling you nobody will rescue you, or we’re not responsible when you’re using an amenity we provided.”
Pia agrees: “The facility cannot take the stance that we posted a sign, no lifeguard on duty, swim at your own risk, and then basically wash their hands of any other actions on their part.”
A recent court ruling adds weight to that argument. Garrison’s Canoe Rental and Campground Inc. in Steelville, Mo., offered a number of amenities for its guests, including a swimming pool. Despite a sign warning patrons that there was no lifeguard and to swim at their own risk, 10-year-old Crystal Winston drowned in the pool while attending the Christian summer camp in 2002. Her family sued Garrison and the church that encouraged them to send Winston to the camp. The case settled for $2.5 million.
That amount was the joint policy limits of the church’s and Garrison’s insurance policies. Out of good faith, the plaintiffs decided not to exceed either party’s limits.
Even when signs are posted, the minimum compliance often isn’t being met. Broken fences, wrong rescue tools, missing depth markings and poor maintenance lead to accidents. A 2-year-old toddler in Hollywood, Fla., wandered through a broken pool gate and nearly drowned in the pool of her apartment complex. Though she lived, she suffered irreversible brain damage. In 2001, the family sued the manager and won $100 million, one of the largest verdicts in Florida.
To guard or not to guard
Meanwhile, hotels and apartment pool owners must wrestle between ethics and liability. Is it better to hire a lifeguard to protect patrons and risk taking on the liability, or to not have a guard on staff and avoid the liability?
Ultimately, the question comes down to one thing: Cost. “The reason [hotels] don’t have to have [lifeguards] in Pennsylvania is a very strong hotel-motel lobby that lobbies against lifeguards, because of the cost,” Bella says.
But even she admits that lifeguards have a psychological effect on how parents and guardians watch their kids. “I’ve seen parents walk into a hotel pool and immediately disregard what’s going on with their children,” Bella says.
Lifeguards themselves are not enough either, others argue. They require mentoring, monitoring and continuous training to be effective, experts say.
Witness a $24 million verdict to the family of a 3-year-old who nearly drowned in her apartment pool in Upper Darby, Pa., in 1993. Managers of the apartment complex had hired a firm to run the swimming pool, and two lifeguards were part of the agreement. A photograph, however, showed the guards lying on their backs, one with headphones on and the other with her eyes closed, on the day of the drowning.
The pool management company was found 75 percent responsible, and the apartment management company 25 percent, even though it had taken steps to hire the company and provide lifeguards.
Such cases back up Griffiths’ belief that some pools should remain unguarded rather than have a single, unsupervised lifeguard on deck. “In small, traditional hotel/ motel pools, I don’t believe they should be guarded,” he says. Without a guard, parents may be more likely to watch their kids closer.
But what of the question of liability? According to tort law, hiring a lifeguard even when it isn’t required, means the owner has taken on the responsibility for anything that happens, even if the guard can’t save a drowning victim. In other words, owners could be sued for trying to do the “right thing” even if they didn’t have to. “No good deed goes unpunished,” says Steven Adamsky, a partner at the law firm Mitrani, Rynor & Adamsky in Fort Lauderdale, Fla. “There’s a divide between moral and ethical, and avoiding legal responsibility.”
Attorney Haggard disagrees: “It’s a silly argument. When you put more safety out there, you have a better defense. You’re showing that [you’re] doing all [you] can.”
Other drowning lawsuits where lifeguards were on duty have been dropped because the guard did his or her job, but was unsuccessful in saving the individual. In one case where a 9-year-old drowned at a YMCA in Jackson, Miss., in 2001, three of the four defendants were dropped from the suit, including the YMCA, because it had proven that the six lifeguards had performed as expected. The case settled confidentially. People often sue to shed their own guilt, Griffiths says.
The hotel industry, however, contends that its priority is guest safety. “Hotels protect themselves by having the right procedures, posting hours, having adequate insurance,” McInerney says.
Having a good insurance plan is essential to avoid becoming bankrupt and losing business. According to the National Safety Council, for every near-drowning incident, health care costs range from $75,000 for emergency room services to $180,000 annually for long-term care. The comprehensive cost of a single death is approximately $3.8 million — far more than paying for a lifeguard and proper equipment.
But while a good insurance plan can protect the owner financially, it doesn’t save people from drowning, experts say, nor does it necessarily shield the owner from bad publicity and negative press.
Educate and enforce
In the end, it’s important to communicate that a pool can be fun as well as safe, if rules and procedures are followed properly. But make sure to balance both without ruining the experience for patrons.
“If you go overboard on safety and signage, nobody wants to go in the pool,” Adamsky says. “Resorts need to harmonize avoiding liability by doing nothing and making it look scary by having something that is presentable and marketable, and still meeting safety requirements.”
But before telling patrons how to use the pool, hire an aquatic consultant who will tell you how to run a pool, experts advise.
“A big mistake that hotels, motels, apartments and condos make is, they want the pool to look aesthetically pleasing,” Griffiths says. “So what they do is put in a swimming pool deck composed of large, good-looking ceramic tiles. In a wet environment, they’re slippery, although they look rough to the touch.” An aquatic consultant would steer the owners away from that to avoid slips and falls.
In addition, a consultant can walk through the property to make sure the management program works from a legal risk management point-of-view while protecting users, Adamsky says. Consultants will cover as much ground as possible, from design to safety procedures. They will make sure the staff is trained on all procedures, so one can take over for another if that person is absent from work.
Next, take the information learned from the consultant and educate patrons on safety around the pool. “At check-in at resorts they give you a packet of information on restaurants, bars, the spa … [so] put in a safety sheet,” Adamsky suggests. The safety information should state how to “enjoy the facility, remember to be safe and exercise discretion” and include emergency phone numbers. The numbers, however, should be for first responders in the county, not the resort, so the resort does not have to undertake the responsibility to answer the questions.
Make the information in different languages, if necessary, based on the types of guests and residents who might use the facility. And while guests are being checked in, have the front desk clerk explain the rules of the pool, brief them on safety and how to reach someone for emergencies.
Similarly, all residents of apartments should be given safety information when signing a lease or joining the homeowners’ association.
If a group of children is visiting the pool as part of a birthday party or outing, make sure there’s a lifeguard and another adult supervisor, experts say. Managers who allow large groups to rent out a pool should also provide a lifeguard service as part of the package.
Residents of an apartment with a pool should treat it as if they own the pool, Gilchrist says. “Make sure the gate and chemicals are maintained well, and the fence is adequate,” she says. Alert management to any hazards immediately and make sure they are addressed.
Don’t allow patrons to swim alone, experts urge. Enforce a buddy system so if one gets in trouble, the other can help or get help. “Even very experienced swimmers can find themselves in difficulty — muscle cramp, asthma attack, a seizure, all kinds of reasons,” Gilchrist says. “If you’re there by yourself, you’re less likely to navigate yourself out of an aquatic situation.”
If the pool has a deep end, place a rope or line across the pool so patrons know where the pool begins to deepen and can stay in the shallow area.
Should a manager decide to hire lifeguards, make sure they are there for one purpose: to watch the pool. Not to fold towels, clean up the deck, play with children, take beverage orders or the like. That should be up to pool attendants. If a drowning occurs because a lifeguard was busy giving patrons directions to a museum, that won’t hold up well in a courtroom, experts say.
Train all hotel staff in CPR and first aid, and suggest apartment residents be trained as well. The Houston Apartment Association has a partnership with the YMCA that offers child and parent safety classes, says Aimee Bertrand, public affairs specialist for the HAA. Houston apartments are not required to have lifeguards.
Also see to it that everything is up to code. Check that signage is clearly placed and marked, without being cutesy (Adamsky recommends not using rustic-looking wood signs that may be easily ignored). Place rescue equipment in visible sight and mark it clearly so people don’t get confused, such as putting a leaf tool next to the shepherd’s pole. Make sure an automatic defibrillator is available with instructions, and that all staff members have been trained on how to use it. Clearly mark all pool depths, and keep a list of emergency numbers next to a phone that does not require “9” to dial out.
Lastly, encourage guests and residents to enjoy the pool safely. “We need to continue to educate [owners and operators] that while the water is pretty and fun, it’s really dangerous,” Gilchrist says. “If people realize there’s a danger, they should take steps to overcome or minimize it.
They should remember and realize what a hazard it is.”