The Burning Question

The Virginia Graeme Baker Pool and Spa Safety Act has been the law of the land for a while now.

But many builders and service technicians now wonder if the public-pool wording might have unexpected implications on residential pools.

The only part of the law that applies to backyard vessels is the drain-cover requirement — any drain cover sold after Dec. 20, 2008, must comply with the law.

But what if an entrapment occurs in a residential pool or spa? Might a plaintiff’s attorney use the existence of the federal law against any professional involved in the pool’s design, renovation or maintenance?

Here, attorneys who have worked on such cases discuss whether this could happen, and how companies can protect themselves.

The arguments involved

Right now, residential pools are not required by federal law to have dual drains or auxiliary devices to prevent entrapment. But there is more than the letter of the law to consider, attorneys say.

“One argument that the plaintiff’s lawyer can make is that the federal law sets the minimum standard of care, and that there’s not any good reason why you would want things safer in a commercial pool than in a private pool,” says Richard Cohn, a partner at Aitken Aitken and Cohn in Santa Ana, Calif., who represents plaintiffs in personal-injury suits.

This type of argument certainly holds a prominent place on the plaintiff’s attorney playlist: “I think it’s very successful and is used in almost any case,” Cohn says.

Chances are, this argument will be used regardless of whether the pool was built before or after VGB passed. A plaintiff’s attorney would likely argue that a solid professional should have known about the measures in the law even before its passage, since codes frequently lag behind actual building practices.

“Everybody’s just doing it without any law,” Cohn explains. “So now if you’re not doing it, you’re breaching the standard of care, even though it’s not required

The homeowner’s attorney would likely have an expert witness testify to this point. For example, a builder might state they’d been building pools with dual drains for years, or even decades, before VGB was written.

“In my opinion as a plaintiff’s lawyer, that’s an easy kill,” Cohn says.

There’s another strategy that an injured party can use — equating the pool or spa as a manufactured product that was defective.

“If you have a girl who has got her hair stuck in a suction of a [spa] and drowns because of that, that’s not the way the product should function,” Cohn says. “Product liability law makes the defendant responsible and liable to pay for damages when the product fails to act as the normal consumer would have expected it to act.”

Contractors and service technicians can’t get out of this argument by claiming not to be a manufacturer, he adds. As far as the court is concerned, anyone responsible for entering product into the stream of commerce meets the definition. “Contractors love to try to call themselves service providers as opposed to product providers,” Cohn says. “But I don’t think that is going to hold up in court.”

What to do

In answering the question of how to protect yourself in the case of a lawsuit, there are a couple of no-brainers in play.

First, in all new construction, build to VGB or to the ANSI/APSP-7 standard. They’re very close, and if one isn’t used against you, chances are the other will.

Of course, absolutely make sure you’re installing VGB-approved covers — and doing it correctly, because this is in the law. “There’s plenty of ammunition there if they put in the wrong cover and they didn’t follow the manufacturer’s instructions,” says Steven Getzoff, an attorney with Lester Schwab Katz & Dwyer, LLP in New York, and counsel for the Association of Pool & Spa Professionals.

Do the same with all renovations that will involve the circulation system. “As soon as those pools come up for refurbishing or remodeling, both the owner and the contractor should be absolutely considering it,” says David Samuels, a partner in Michelman & Robinson LLP in Encino, Calif.

It’s harder to blame a pool professional who made renovations that didn’t involve the circulation system. However, builders should explain the law to the client, not only in the spirit of following the requirements, but also to make pools safer.

When it comes to pools and spas constructed before the law passed, anybody who could be connected with the vessel should consider notifying past customers, via mail or email, about VGB. This includes the original builder as well as any service tech currently doing maintenance. If a professional can prove this has been done, it will go a long way toward helping them prevail in a courtroom. It’s also important to keep a copy of any correspondence that was sent out, along with a list of addresses where the notices were sent, or the actual emails.

“I think the percentage of homeowners who would embrace the idea of retrofitting just for that purpose would be relatively small,” Samuels says. “But there’s no harm in sharing the information. A small percentage of owners will say, ‘Thank you for letting me know about that. Let’s plan on doing it.’”