Question

On a hot summer day, Tom was relaxing by the outdoor pool at his members-only pool club. Tom had been a member there for three summers. He was very impressed with the improvements the club had made to most areas open to members and their guests. He knew because he was now on the capital improvements committee at the club, that there was preliminary work being done on the main pool in preparation for a full overhaul over the off-season.

Tom enjoyed swimming laps in the main pool, and thankfully, there were always a few lanes marked off that children were prohibited from entering. About two hours after his arrival at the club, Tom walked by the ladder in the deep end of the pool. He tripped on the ladder railing and fell into the pool. During his fall, Tom hit the ladder stairs and suffered four broken ribs. Tom spent the night in the hospital for observation, where he was administered pain medication. The ladder was not defective, but there was some basic cleaning of the concrete around the ladder taking place. The ladder was in place, but the concrete around it had cracked because of the cleaning process. The concrete is scheduled to be replaced in the off-season overhaul of the main pool with a new product meant to provide inc.reased traction when wet.

Tom sued his pool club and was awarded $3 million in damages.

You are a partner at Thomas and Reilly, LLP, a liability management firm specializing in business consulting. Your client ValleyView Pool Club, Inc.. (ValleyView) owns and operates several membership-only swimming and recreation clubs. ValleyView has contacted you after reading the above news article. They are concerned that a member of their club could have an accident like Tom’s.

ValleyView has asked you to draft an opinion letter assessing their exposure to a negligence action from a member like Tom. Specifically, ValleyView would like to know

If:

• They have a duty to warn their members of hazards on their premises and, if so,
• What warnings should they make?

ValleyView believes that because of the nature of their business (members only) that the risks on their premises are obvious.

• Do you agree?
• Does this eliminate their duty to their members?

If ValleyView were sued,

• What would be their best defense from a negligence claim?
• What policies and procedures should ValleyView put in place to mitigate their liability?

ValleyView obtains waivers from its members at the time of its initial membership application.

• Would this absolve ValleyView of their duty to their members?

Answer 1

Q-1: Specifically, ValleyView would like to know If they have a duty to warn their members of hazards on their premises and, if so, what warnings should they make?

A: Yes, ValleyView Pool Club, Inc. (ValleyView) has a moral and ethical duty and responsibility to warn their members of hazards on their premises as members would not know in advance about any area or facility on the club premises which were/are under recent maintenance, repairs or cleaning and it can lead to accidents and serious injuries or deaths especially if the work was not completed and still in progress.

ValleyView can put up signages like "under maintenance", "under repairs", "wet floor" "slippery floor", "closed for repairs", etc., very easily. Such repairs and maintenance signages are temporary and can easily be placed or removed at any place on the premises and are cost effective or economical as well as suffice as advance warning systems to their members to prevent accidents from taking place.

Q-2: ValleyView believes that because of the nature of their business (members only) that the risks on their premises are obvious. Do you agree? Does this eliminate their duty to their members?

A: No, ValleyView is mistaken if it believes that because of the nature of their business (members only) that the risks on their premises are obvious. This premise would be absurd, ridiculous, unheard of, and bad at law. Maintenance and repairs of their premises is an ongoing process and all members cannot know in advance if any facility or part of the premises were recently fixed or still under maintenance unless warned in advance. ValleyView should definitely want to provide a safe and fun environment to their members and not put their members at any undue and avoidable risk. This would not make good business sense too since the members would get scared and stop visiting and renewing memberships at the club if they believe it is unsafe.

Q-3: If ValleyView were sued, what would be their best defense from a negligence claim?

A: ValleyView's best defense from a negligence claim given the present circumstance would be that the capital improvements committee at the club already knew about repairs. This capital improvements committee at the club comprises club members directly like Tom who had spent three summers/years already there at the club and were not knew to the club and thus should be aware of ongoing repairs and maintenance work at the club since they are regular members and incharge of improvements at the club. However, this is only a temporary or short term defense and the current practices need to be modified to ensure long term risk mitigation. In Tom's case, what would have the defense of ValleyView was that Tom was on the capital improvements committee and so he already knew about the pool repairs and the pending work and he knowingly took the risk upon himself. Further, in Tom's case, Tom had tripped on the ladder railing and fallen into the pool which led to the accident so the cause was an accident from Tom and not due to a faulty ladder and so ValleyView is not liable in such a case. The ladder was not defective and in place and some basic concrete cleaning was pending which was a minor work and not the cause for the accident in Tom's case.

Q-4: What policies and procedures should ValleyView put in place to mitigate their liability?

A: ValleyView needs to put in place certain policies and procedures to mitigate their liability towards accidents of their members. One such policy and practice would be to put in signages informing members of repairs or cleaning operations in progress to ensure that all members are informed and aware and can avoid using that part of the premises which are under repairs / maintenance. Another policy to update such warnings or cautions on the members notice board/s at the club premises to mitigate their liability so that members would be responsible for such accidents and cannot claim ignorance. Another policy and procedure for ValleyView would be to cordon off or restrict certain areas or facilities of the club altogether until the entire work is completed to ensure members do not access those hazard areas. This would mitigate ValleyView's risk, and as a result, liability.

Q-5: ValleyView obtains waivers from its members at the time of its initial membership application. Would this absolve ValleyView of their duty to their members?

A: No, ValleyView obtaining waivers from its members at the time of initial membership application does not absolve it of their duty to their members. Even from a business point of view let alone ethics, it does not make sense for ValleyView to endanger its members lives by way of accidents which can also lead to deaths or permanent disability and end up having to pay high amounts of damages later as out-of-court settlements with members who have been grieviously injured on their premises while accessing the club facilities. ValleyView also needs to maintain its reputation and goodwill with its members/clientele and seek repeat business/membership renewals. This is also because just by adding such a clause, does not mean that members have been informed about any repairs or maintenance which is a continuous process. When members are ignorant of pending repair work or faulty equipment at the club and still use them, they can get hurt and even die. ValleyView cannot claim no liability based on such a clause as a member has the right to information or know if there are any changes or risks and it cannot be a blanket waiver of liability that too taken at the time of joining/initial membership application as repairs would be occuring on a regular basis and not at one time. So, this initial waiver on liability would not work for ValleyView and be untenable.