Most upper income condominiums have swimming pools. Use of the pools is, of course, limited to the occupants of the condominiums. In most cases, the homeowners association erects a fence or some other barrier to keep non-members from using the pool. Unfortunately, swimming pools tend to attract many different types of individuals, including non-members and their children. Proper maintenance of these fences and barriers is best insurance against tragic accidents, but occasionally, the maintenance of the fence is not given a high enough priority, and tragedy is the common result, as demonstrated by a recently filed lawsuit against a home owners association and two management companies.
The allegations of the complaint
The plaintiffs are the parents of an autistic child who managed to climb through a chain-link fence surrounding a public swimming pool at Quillback Park; the fence surrounded the pool area. The complaint alleges that the perimeter had a gap in it and that the HOA and the management companies had been aware of the gap for several years Residents and children commonly used the gap to enter the pool area. Despite being aware of the gap, it went unrepaired for several years.
On the day in question, the plaintiff’s son left his parents’ apartment at about 2 a.m. and used a step ladder to climb through the gap and enter the pool area. The boy, who could not swim, was found at the bottom of the pool at about 8 a.m. The paramedics who pulled the boy from the pool pronounced him dead by drowning.
Legal arguments
The complaint alleges that members of the HOA’s board of directors knew of the hazard created by the gap in the fence. The complaint makes the same allegation about employees of the two management association who were charged with making basic repairs to the condominium grounds. An interesting aspect of this case is the fact that the condominium association apparently has no ownership interest in the pool. Yet the complaint charges that the defendants had a “duty to use ordinary care to keep the pool free from artificial conditions that involve an unreasonable death or bodily harm.”
This case will not be resolved for many months. During the discovery phase, defense attorneys will undoubtedly investigate the possible negligence of the boy’s parents and their role in permitting the boy to leave the apartment unencumbered. Any HOA that finds itself in a similar lawsuit may wish to consult an attorney who is knowledgeable about the liability of HOAs.