Association Swimming Pools: To Lifeguard or Not to Lifeguard?

The conundrum of whether to provide lifeguards is real. “It creates an interesting debate within boards, and not everyone agrees,” says Kelly Richardson, a partner in the law firm Richardson Ober De Nichilo in Pasadena, Calif. “It’s not a bright-line issue with easy answers.”

Here are some of the factors you should make sure your clients consider when determining whether they should hire lifeguards for their pools.

The Case for Lifeguards

The primary reason to hire lifeguards is fairly obvious. “It creates a sense of safety,” says Alessandra Stivelman, a partner/shareholder in Eisinger Law in Hollywood, Fla., who focuses on real estate and association law.

Depending on how an association hires its lifeguards, the association itself could gain some protection — from financial losses stemming from pool-related injuries. “If you get the lifeguard through a properly insured vendor, it’s an extra layer of security because the vendor may have to defend or indemnify the association,” Stivelman says.

Richardson cites customer service as another reason to provide lifeguard services: “Owners want to know there is someone there to keep an eye on their kids.” Indeed, Stivelman says, some view lifeguards as an amenity.

Associations that do decide to retain lifeguards should proceed with caution, though.

“Lifeguards need to be certified and trained pursuant to the applicable state and local laws,” Stivelman says. “If you use a vendor, I always recommend you have a proper contract that spells out the lifeguard’s responsibilities and conduct a background check.”

She also advises associations to determine and clearly communicate the lifeguarding schedule.

“Are you always having a lifeguard or just on weekends or for special events? Pool users need to understand whether the lifeguard is on duty or not. I can see an issue where the lifeguard times change, and an association gets sued for not having one there when something happens.”

Both Stivelman and Richardson recommend checking with the association’s insurance company, too. An insurer may have its own guidelines and requirements for associations regarding lifeguards.

The Case Against Lifeguards

Boards that hesitate to hire a lifeguard often are worried about the potential liability — and their concerns aren’t misplaced. “If you have a lifeguard, and they’re negligent or don’t have proper training, you’re at risk,” Stivelman says.

And finding the right people can be easier said than done, especially in the midst of a national lifeguard shortage. “It’s difficult to get someone properly trained and insured, and it can be costly,” Stivelman warns.

Moreover, hiring a lifeguard can mean wading into an array of laws and regulations. “In Florida, the laws don’t require a lifeguard at a community association pool, but a lot of rules and statutes apply to lifeguarding, so you subject yourself to all of those requirements by virtue of having a lifeguard.” (State and local laws vary, so associations should check with their attorneys.)

If a client does opt out, it should check with its insurer to confirm the move is acceptable. “You can have issues if you had a lifeguard and get rid of it,” Stivelman says. For example, your premiums might rise.

Associations without lifeguards also need to implement rules addressing pool use.

“You need to specifically state in the rules that we don’t provide lifeguards, users use the pool at their own risk, and children must be supervised,” Richardson says. “You also have to post signs all around to that effect.” Some municipalities require such signage, but associations should post it regardless.

Richardson says associations frequently don’t go far enough with their pool rules.

“I see a lot of pool rules that I think are incomplete, that simply say the hours, not to use the pool when it’s closed, and then various legally required statements. Associations should think more deeply about the kind of behaviors they don’t want. Do we want alcohol allowed? Do we want to allow toys in the pool? Think about behaviors that enhance the chance of injury.”

Associations that go without lifeguards might also want to require owners to sign an annual release of liability.

A Monitor Middle Ground?

Lifeguards aren’t the only option available when it comes to keeping an eye on the pool area these days. “A board might get a pool monitor to enforce the rules,” Stivelman says. Pool monitors are relatively new, but they’re catching on with some associations.

“I very recently reviewed a contract for an association that was hiring monitors instead of lifeguards,” Richardson says. “They’re specifically described not as lifeguards but as there to watch and report a problem. They’re not going to jump in the water and save your kid if they’re drowning.”

He’s not convinced monitors are the solution, though. “There’s a question in my mind as to whether a monitor truly relieves the association from liability — there’s still a risk. If you hire an independent contractor company and the association doesn’t supervise at all, maybe that helps protect the association somewhat.

“But I think boards and managers often want to dictate how the monitors perform and what their job duties are. That starts sounding like an employee of the association, not a contractor.”

Monitors also can cause confusion. “If I’m an owner and am told there’s no lifeguard, what do I think when I see someone in a uniform sitting around monitoring?” Richardson says. “Doesn’t that imply that this person has some kind of a safety function?” Clear communication to owners will be just as important when using monitors as when dispensing with lifeguards.