This year, I served as an expert in a personal injury lawsuit involving chlorine in pools. In short, a swimmer at a public pool suffered from injuries arising from chlorine. The swimmer sought damages from the party responsible for maintaining the pool.
To be clear, my involvement was limited to chemical expertise in the lawsuit. I am not even almost a personal injury lawyer. My legal expertise is limited to patents. Nevertheless, I did go to law school. So, I did take all of the general courses, including torts. And, I am a fairly curious guy, which leaves me wondering about an aquatic facility's potential liability for chlorine related injuries. Below, I’ve summarized my thoughts with hopes that someone out there can help me gain a better understanding of this issue.
Based on two semesters of tort law at GW Law School, I suspect that the following 3-step analysis would apply to a negligence case, where a swimmer is harmed by pool chlorine:
What is the aquatic facility’s duty when using chlorine to sanitize swimming pool or spa water?
First off, I mean commercial facilities — not the homeowners’ duty to their guests. Also, I used the word “chlorine” to include all chlorinating agents and/or brominating agents used to sanitize pools.
At a high level, I suspect that a commercial aquatic facility would have a duty to exercise reasonable diligence in maintaining the standard of care for pool water chemistry. Aquatic facilities appear to be governed by state laws. For example, the Texas Department of State and Health Services has a section titled Laws and Rules - Public Swimming Pools and Spas. I suspect that rules like these would be a good starting point in determining the standard of care when maintaining a public pool. An aquatic facility would probably have a duty to follow these rules with some reasonable level of competence.
I suspect that an aquatic facility breaches its duty of care by failing to exercise reasonable diligence in maintaining the standard of care. Failing to abide by the rules/laws governing pool care would be a good indication of such a breach.
Although not relevant to assigning liability for the harm ("compensatory damages"), punitive damages may be awarded depending on the culpability of the aquatic facility. In other words, how careless was the error when placed on the spectrum of negligent, grossly negligent, reckless, wanton, willful, etc.? Did the facility make a careless mistake or is this a case for the Darwin Awards?
I think the aquatic facility would be responsible for harm caused by breaching its duty of care. Here, I think that the facility may only be responsible for those harms that would have been reasonably foreseeable at the time of the breach. For example, failing to maintain proper water chemistry would create a reasonably foreseeable risk of hair, skin, respiratory, eye, and/or equipment damage. But, that foreseeability probably wouldn’t extend to damaging a rare coin collection that a lap swimmer brought onto the pool deck.
Here, it seems like actual knowledge would not affect the standard of care. But it would affect the foreseeability of the risk because the pool facility would know (with absolute certainty) that harm was actually occurring.
Does an aquatic facility have a duty to mitigate known problems arising from the pool chlorine? If not, it seems like a facility could know about recurring chlorine-related injuries but still not be liable for those injuries because the facility met the standard of care. Basically, the standard of care would allow for certain chlorine related injuries.
Under the above this scenario, would liability arise the moment the facility breaches the standard of care? Would that liability only extend to injuries above and beyond the known injuries that normally occur within the standard of care?
For example, what if a swim school abides by the standard of care but several instructors suffer from serious skin problems anyway? Are the instructors assuming the risk and waiving liability for those skin problems? What if the pool chemistry is off one day, creating a breach in the standard of care-- is the facility all of a sudden liable for the instructors' skin problems? Or is the school only liable for skin problems above and beyond the normal skin problems-- those caused by the noncompliant water chemistry? Or have the instructors effectively signed up for skin problems by working as swimming instructors?
I imagine that questions about mitigating the risk would affect the standard of care. In other words, does an aquatics facility have a duty to provide its patrons with technology known to lessen the harm arising from its pool water? I really don’t know. To me, it seems like the aquatics facility is in the best position to mitigate the risk. Patrons typically don't measure the chlorine levels at a pool. And patrons typically aren't in a position to bring their own ventilation systems to the pool. On the other hand swimmers often provide their own method of preventing chlorine damage.
This question of mitigating harm may go hand in hand with (a) the facility's duty and (b) the risk that a swimmer assumes when going to a swimming pool. Based on my observations, it looks like (a) the pool has a duty to maintain proper pool water chemistry and (b) the swimmer assumes the risks associated with exposure to properly maintained pool water.
Again, I think this question gets at the standard of care. Given that the aquatics facility is in the best position to mitigate the risk of chlorine related injuries, should they have a duty to protect their patrons from chlorine related injuries? To what extent? Would it matter if the harm/injuries could be easily and inexpensively prevented? Or should we say that there is no price-tag on public health?