Expert witnesses enjoy a unique perspective on the pool/spa industry and its work.
These experts are called into a case to inspect a project and find any construction defects that were committed, then assign a cost to those.
While they may be hired by a defendant, their job is not to build a case for the defendant, but rather to make a completely objective assessment of the job.
“The definition of a construction defect expert witness should be completely neutral with no skin in the game and give you unbiased opinions based on codes and standards of care in the industry,” says Scott Cohen, president of The Green Scene Landscaping & Swimming Pools, based in Chatsworth, Calif. “You’re basically an umpire calling balls and strikes.”
In fact, these experts can actually hurt their clients’ case if they’re caught lying or contradicting themselves, adds Rob Holmer, president of H2 Engineers, based in Sacramento, Calif. “If you testify one opinion on one case, then give a contrary opinion on another, you’ve just destroyed your credibility and really hurt your client by doing that.”
Here, these expert witnesses bring their objectivity to bear in sharing the mistakes that most frequently lead to lawsuits for pool and spa builders.
Sometimes the equipment or materials specified in a set of plans may have become unavailable before it’s time to order. Some contractors will make the replacement that they believe most appropriate.
Deviating from design plans
But while it’s true that pool/spa contractors are specialists in the niche, they still should not make product substitutions without consulting the entire design team, especially on commercial projects. Other experts on the team may know something that you don’t about the ramifications of that change.
Matthew Reynolds recently helped in a case that demonstrates why. His company, Rowley & Reynolds Forensic Engineering, based in Palos Verdes estates, Calif., recently looked at a commercial pool with a waterslide. Main drains were specified in the waterslide exit. The original plans called for unblockable, 24-by-24-inch drain covers, which could sit flush with the floor since they are too large to be blocked by a person’s body. When those drain covers were not available, somebody decided to substitute them with blockable drains, which must protrude from the floor so that a person’s body can’t block them and create a seal. When some swimmers used the waterslide, they hit the protruding drains and became injured upon exit.
Before substituting equipment, products or materials, go through the established review and approval process.
“You don’t want decisions made in a vacuum,” says Reynolds, president of the company. “Coordination is crucial — amongst the design team, the owner, authorities having jurisdiction, and the construction team. Things are going to inevitably happen on an aquatics project… but it’s how those teams communicate to have a successful project.”
Building on unsuitable fill
One of the biggest culprits for structural lawsuits comes from building on fill that’s not fit to support a pool or spa, these expert witnesses say.
Because they are built in the ground, the stakes for pools and spas are even higher than for the adjacent homes.
“Pools usually have a lower tolerance for movement than the surrounding buildings because they’re watertight structures, so they need to remain level,” Reynolds says. “If we had a gutter system or a vanishing edge, we’d have an even tighter tolerance of movement.”
This means that some soil may have been compacted enough to support a home, but not the pool. That’s why some drawings specifically state the fill is not suitable for pools.
“A lot of times, I see contractors will build a swimming pool in … fill that was graded by the developer,” Holmer says. “They will just take it for granted that the fill soils are suitable to support the pool, when often that’s not the case.”
Some pool builders include disclaimers in their contracts stating they are not responsible for damage related to soil conditions. “It’s generally been my experience that those clauses do not stand throughout the litigation process,” Holmer says.
If the pool contractor hires an engineer to evaluate the soil for a pool, they will receive more protection in court, he says, as the engineer was meant to function as the expert. However, if the pool builder assumed the soil was sufficient because the home contractor had it evaluated, they likely will not be protected.
“Sometimes during litigation it falls on the contractor that they chose not to hire an engineer and took it on face value that it was suitable to support the pool,” Holmer says.
If a pool builder works as a subcontractor for the home builder, that GC may bear the liability in court, Holmer has seen.
If building on the site of a new home, make sure that the fill has been evaluated and approved specifically for swimming pools, Holmer advises.
“If they’re building the house and pool concurrently, then often there’s already a soils report,” Holmer says. “The first thing the pool builder should do is ask the general contractor for the soils report.”
Often enough, the engineer hired by the home will note on the plans that the fill is not suitable for a pool.
If you’re using standard pool plans on a project, look for notations stating whether or not they apply to pools built partially or completely on fill.
“If you build a pool in fill, and the engineering drawing says ‘This drawing is not suitable for use in fill,’ then you’re deviating from the approved engineering, which will get you in trouble in litigation,” Holmer says.
Incorrectly supported shallow features
Because beach entries, sunshelves and other very shallow features sit so much higher than the pool floor, they have the potential to move at a different rate than the main pool.
This can lead to a hinge effect, where the shallow feature moves while the main pool stays put, leading to structural cracks on the shell. To prevent that from happening, dig these features as deep as the rest of the pool and fill the difference with concrete, Cohen says. This way, the whole pool moves the same way.
“If you have completely nonexpansive soil, you can get away without doing this,” Cohen says. “But any type of clay or freeze/thaw situation and it will crack.”
Insufficient waterproofing
Raised walls on pools and spas present a special challenge that can have an impact on the structure if not addressed correctly. Whether for a vanishing edge or simple spillway, raised walls attract water migration from one side of the wall to the other, creating the potential for a number of issues.
To avoid these issues, Cohen says, not only should raised walls be waterproofed on both sides, but the barrier should be applied all the way down the pool wall to the floor.
“It is a big problem with vanishing-edge walls, but also on any raised or exposed area where moisture migrates through and causes delamination of tile, stone, or stucco,” Cohen says. “You might have waterproofed behind the tile, but if you didn’t stop the water from getting into the shotcrete behind it, it’s going to find flaws in the exterior waterproofing.”
Some builders will only waterproof the outside of the wall, but not the interior, he reports.
“Let’s say the pool is raised 24 inches on the outside, and the sun is baking outside of that,” Cohen explains. “That heat draws moisture from inside, and that pulls it through.”
He has worked on at least one case where the builder had to completely tear out the plaster and redo it to fix the issue.
“Plaster is watertight but not waterproof,” Cohen reminds.
Issues with concrete or its placement
If there’s a problem with the pool structure, one of the most common causes lies with the handling of the reinforced concrete, Reynolds says.
The rebar may have been set so that it doesn’t get proper coverage when it’s time to shoot the concrete. The concrete may not be the right mix. Or it may not have been applied properly.
Install the rebar with enough distance between it and the ground or form so that it will be covered on the outside by the thickness of concrete specified in applicable standards. Make sure the rebar installation doesn’t prevent the shotcrete nozzle from being able to reach around the entire cage and ensure complete encasement of every bar, with no voids. This problem sometimes arises if the bars are too close, for instance.
If using wet-mix shotcrete, be sure to check the mix when it arrives. If applying dry shotcrete, otherwise known as gunite, make sure the component ratios are correct, especially the water, which can weaken the material in excess.
When shooting the material, make sure the rebar is completely encased, with enough concrete covering the rebar on the internal and external sides of the shell, and with no voids. Errors here can lead to structural cracking and costly repairs.
The risk of poorly placed concrete lay not only in the possibility of it cracking on its own, Holmer says. Even if it isn’t bad enough to just crack, it can exacerbate other issues.
“Sometimes poor-quality gunite is the primary cause, but oftentimes there’s something else that will cause the initial damage,” Holmer says. “But the damage is exacerbated because of poor-quality material.”
Incorrectly installed mosaic
The glass mosaic tile that can instantly give a high-end and incandescent look to a pool also can prove a headache if not chose and installed correctly.
“If it’s a 50-foot vanishing-edge pool and they’re going to surface the whole vanishing-edge wall with a mosaic tile, that’s a very difficult application, so the contractor needs to be very skilled,” Holmer says.
This especially applies to glass mosaic tile with a mesh backing. While this may ease application, freeing tile setters from having to set paper-faced tile, the mesh backing can impede the ability to meet a crucial part of the standards. The Tile Council of North America states that, in pools and spas, 90% of the surface area behind the tile must make contact with the thinset that adheres it to the shell. That’s often not possible with a layer of mesh between the tile and the substrate.
“Specifically with mosaic tiles that suffer wetting and drying, I often see individual mosaic pieces delaminate and pop off,” Holmer says.
