March 10, 2009
Previously published on February 4, 2009
I. Introduction
In December 2007, Congress passed the Virginia Graeme Baker Pool and Spa Safety Act1 (the “Act”) in response to the alarming increase in drowning-related deaths of children aged 1 to 14 in the United States2. This federally-enacted legislation is aimed at reducing these deaths and related injuries by requiring that all public pools and spas be retrofitted with safety systems and devices that meet certain industry performance standards3, effective December 19, 20084. The Act impacts both operators of public pools and spas as well as those individuals involved in the manufacture, distribution and/or retail of pool and spa safety systems and devices. Public entities and apartment owners who offer swimming pools and spas that are open to large groups of persons are required to comply with the new law.
II. Compliance With the Act
1. All Drain Covers Manufactured, Distributed or Sold in the U.S. Must Meet ASME/ANSI Standards
For manufacturers, distributors and retailers of drain covers, the Act specifically requires that all drain covers must meet and conform to the American Society of Mechanical Engineers/American National Standards Institute (“ASME/ANSI”) standard on drain covers5 (the “Drain Cover Standard”). This standard includes that drain covers are tested for their structural integrity, for body and hair entrapment and other technical specifications and requirements6. After December 19, 2008, it will be unlawful for any person to manufacture, distribute, or offer for sale any drain covers that do not adhere to the Drain Cover Standard7. In other words, the Act will effectively remove all non-conforming drain covers from legally passing through commerce to help make certain that pool and spa operators only use approved drain covers in their pools.
2. Requirements for Public Pool and Spa Operators
The Act requires that all public pools and spas8 in the United States must be equipped with drain covers that meet the ASME/ANSI standard on every drain or pool grate as described above9. Additionally, public pools and spas with a “single main drain” must, at a minimum, be equipped with at least one of the following devices: (1) safety vacuum release system; (2) suction-limiting vent system; (3) gravity drainage system; (4) automatic pump shut-off system; (5) drain disablement device; (6) other systems that effectively prevent or eliminate the risk of injury or death associated with pool drainage systems10.
The U.S. Consumer Product Safety Commission (‘CPSC”) interprets a “single main drain” to mean a “submerged suction outlet, with or without a skimmer, connected to a dedicated pool pump.”11 Furthermore, it is possible for a pool to have more than one single main drain where it has multiple suction outlets that are each connected to a dedicated pump and the centers of each drain are located within three feet of each other.12 By contrast, multiple drains that are connected to one pump and where the centers of the suction outlets are at least three feet apart would constitute a “multiple main drain” and not a “single main drain” arrangement. Thus, because the Act only requires that pools with a “single main drain” be fitted with an additional safety device, such as a safety vacuum release system, multiple main drain pools would not be subject to these additional safety devices or systems. Similarly, pools with “unblockable” main drains do not require any additional safety devices or systems under the Act.13
III. Consequences for Failing to Comply with the Provisions of the Act
The Act expressly states that the Drain Cover Standard is to be treated as a consumer product safety rule14. This means that the U.S. Consumer Product and Safety Commission is charged with the duty to ensure that the drain covers meet the prescribed ASME/ANSI performance requirements. Thus, any manufacturer, distributor or retailer who knowingly deals in non-conforming drain covers as described above can be subject to civil and criminal penalties, including fines and imprisonment, under the Consumer Product Safety Act.15
Additionally, operators of pools with “single main drains” who fail to retrofit their pools with the additional safety systems or devices as required by the Act can also be subject to the same civil or criminal penalties under the Consumer Product Safety Act.16
Also, failure to observe the requirements of the Act will undoubtedly help establish liability against public pool and spa owners and operators under premises liability law. As a general rule, operators of public pools are required to exercise the precaution, skill, and care to maintain its operation in a reasonably safe condition for the use intended.17 Given that Congress has clearly recognized that these safety devices will substantially reduce the number of drownings, failure to comply with the Act would deviate from this general standard of care. Moreover, where there is a violation of a governmental statute, negligence per se may be imputed as a matter of law.18 Thus, because the Act is designed to prevent injuries and drownings from occurring, civil liability, in addition to the civil and criminal penalties prescribed by the Act, would attach to the operator of a public pool and spa, especially where such accident would have been avoided had the operator adhered to the Act’s requirements.
IV. Implications for Residential Pool and Spa Owners
While the Act, by its terms, currently only applies to public pool and spa owners and operators, the Act allows for grants to States that implement minimum safety requirements consistent with the provisions of the Act.19 Certainly, the purpose of this grant provision is to encourage States to draft extensive pool and spa laws that would broaden the provisions of the Act to reach all pool and spa operators, both public and private, to further effectuate the Act’s goal and intent to eliminate all such drownings. Thus, even though residential pool owners are not currently bound to retrofit their pools and spas in accordance with the provisions of the Act, such requirements may later be imposed. Indeed, they may already be on the horizon.20
V. Conclusion
Through the Act, Congress has recognized the importance of taking steps to eliminate needless and preventable drownings that occur each year. For public pool and spa operators to comply with the Act, they must install ASME/ANSI approved drain covers on every drain. Additionally, for pools with a single main drain, specific safety systems or devices must be installed to meet the Act’s requirements. There may be substantial additional costs incurred to retrofit pools or to construct new pools that meet the standards of the Act.21 The only alternative is for operators to drain and close down their pools to the public until they can afford or are ready to reopen them.22 Even though the cost of compliance is significant, the total investment required pales in comparison to the potential damages to be awarded in the event that there is an accident at a non-compliant facility – in which case both the property owner and the property manager may be held liable for failing to comply with the Act.
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115 U.S.C § 8001 et seq. “[D]rowning is the second leading cause of death in children aged 1 to 14 in the United States.” Id.
215 U.S.C § 8001(1).
3Specifically, 15 USC § 8002(1) defines “ASME/ANSI” as safety standards accredited by the American National Standards Institute and published by the American Society of Mechanical Engineers.
415 U.S.C § 8001(c)(1)(A).
515 U.S.C. § 8003(b) (explaining that drain covers must meet the ASME/ANSI A112.19.8 performance standard).
6U.S. Consumer Products and Safety Com., (June 18, 2008) Staff Interpretation of Section 1404: Federal Swimming Pool and Spa Drain Cover Standard p. 2.
7Id. at p. 6.
815 U.S.C. § 8003(c)(1)(B)(2)(A)-(C) defines a public pool and spa as one that is open to the public generally, open exclusively to members of an organization and their guests, pools located in multi-family residential areas (e.g., apartment complexes or residential real estate developments), hotels, or pools operated by the Federal Government.
915 U.S.C. § 8003(c)(1)(A)(i); also see U.S. Consumer Product and Safety Com., CPSC Staff’s Guide to Complying with the Law.
1015 U.S.C. § 8003(c)(1)(A)(ii)(I)-(VI). The referenced devices or systems must meet ASME/ANSI standard requirements. Id.
11U.S. Consumer Products and Safety Com., (June 18, 2008) Staff Interpretation of Section 1404: Federal Swimming Pool and Spa Drain Cover Standard p. 6.
12Id.
1315 U.S.C. § 8003(c)(1)(A)(ii). An “unblockable” drain is one that a human body cannot sufficiently block to create a suction entrapment hazard. 15 U.S.C. § 8002(7).
1415 U.S.C. § 8003(a).
15Id. at p. 6 (citing 15 U.S.C. §§ 2069(a)(1); 2070(a)) .
16Id.
17See Johnson v. Bimini Hot Springs (1943) 56 Cal.App.2d 892, 901.
18See Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756 (describing a motel operator’s failure to provide a lifeguard and notice to its guests of this fact, as required under statute, as negligence as a matter of law).
1915 U.S.C. § 8004.
20See, e.g., Diana Baldrica, Fresno Bee (Nov. 23, 2008) (explaining that Madera County is requiring the safety equipment on all new residential pools).
21Id. (noting that installation of the devices can cost $1,300 or more).
22See U.S. Consumer Product and Safety Com., CPSC Staff’s Guide to Complying with the Law (stating that pools and spas not open on December 19, 2008 are not required to be in compliance with the Act until the day the pool or spa is operational).
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