With the arrival of summer, Texas families will undoubtedly be looking for a chance to cool off from the Texas heat. For a fee, there are numerous private county clubs and racquet clubs that offer members an opportunity to cool off in their pools and splash parks. For those who do not wish to spend that kind of money, many cities have begun opening their municipal pools and waterparks to give people a place to cool off. But there is a big difference in the lifeguarding and safety responsibilities that a private company has vs a city when it comes to operating a pool or water park. This article will discuss the dangers you face when choosing to attend a municipal pool due to differences in municipal pool liability law and private pool liability law.
A Brief Mention of Private Pool Obligations
When you go to a pool operated by a private organization, they have a duty to inspect the pool and property to make sure that the property is reasonably safe for their invited guests. They also have a duty to provide adequately trained lifeguards in a reasonable manner. As invited guests, they owe you an obligation not to act negligently in carrying out these duties. These simple common courtesies help to prevent unnecessary injury and accidental drownings. But more importantly, they know that if they fail to honor their duties, the victims can hire a drowning accident lawyer and bring a lawsuit for damages that could cost them big. So they have a strong incentive to make sure they are doing what they are supposed to do.
Special Rules for Municipal Pool Liability
Special Rules for Municipal Pool LiabilityWhen it comes to liability for a municipal pool, the government gets special treatment in two forms. First off, they are entitled to immunity from lawsuits under the Texas Tort Claims Act (TTCA) unless the lawsuit falls within one of the exceptions. Second, the government gets the protection of the Recreational Use Statute if the lawsuit alleges a premises liability cause of action under the TTCA. These special rules operate to make it very difficult to hold the City responsible for the same acts of negligence that a private company would be liable for when operating a pool.
Government Liability Overview
Under Common law, the State has sovereign immunity. This meant that individuals had no right to sue the State for actions of negligence because it was simply immune from liability. To make the effects of this less harsh, individual states a well as the federal government passed their own Tort Claims Acts to grant permission to citizens to sue under certain circumstances. Each state’s rules are a little bit different.
The Texas Tort Claims Act and Pools
The TTCA waives its immunity for individuals under the following circumstances:
- Car accidents involving State employees driving for their jobs (Sec. 101.021(1)),
- Certain premise liability cases that occur when the state is negligent in its operation or use of tangible real property (Sec. 101.022), and;
- when the state is negligent in its operation or use of tangible personal property (Sec. 101.021(2)).
- In the context of municipal pool liability, typically the second exception a/k/a the premises liability section, is where an exception to immunity is sought.
The Texas Recreational Use Statute
In Texas, there is also a second statute that affects premises liability. When certain properties such as agricultural land or government property are offered for recreational use, the duty owed by the land owner is altered. In the case of the government, the Texas Recreational Use Statute states “ if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Even though the person was an invited guest upon the property, the duty owed to that person is the same duty you owe a trespasser—not to intentionally harm them. In other words, your state, county, and city government can negligently harm you on their recreational use properties all day long, seven days a week.
Liability Under the Tangible Use of Personal Property Also Requires Grossly Negligent Conduct
Some cases have attempted to pursue a waiver by seeking to avoid the premise liability hurdles and alleging a negligent use or non-use of some personal property. However, the Recreational Use Statute has been interpreted to change the duty owed to people regardless of the cause of action pled. Thus, where victims were injured for failure to use certain emergency equipment or negligent placement of boards above a locker where they fell on someone, gross negligence still applies. (See e.g. City of Dalhart v Lathem, 476 S.W.3d 103, (Tex.App.—Amarillo, 2015)) Furthermore, there has to be a direct “nexus” or connection between the use of the tangible property and they harm caused. The non-use of the tangible property will not suffice to create municipal pool liability.
Typical Causes of Action vs Lifeguards Are Not Allowed Under the TTCA
In addition to the above, the typical causes of action that arise from an employer-employee relationship are prohibited by the TTCA. Fore example the State of Texas has been held immune from the following causes of action under the TTCA:
- Negligent hiring City of Dayton v. Gates, 126 S.W.3d 288, 290–91 (Tex. App.—Beaumont 2004, no pet.)
- Negligent training City of Waco v. Williams, 209 S.W.3d 216, 224–25 (Tex. App.—Waco 2006, pet. denied)
- Negligent supervision Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005)
- Negligent implementation of policy City of San Antonio v. Maspero, 640 S.W.3d 523, 533 (Tex. 2022).
To Put this in Perspective
One particularly shocking example that sort of sums up the gravity of the unfairness of sovereign immunity is the case of Henry v. City of Angleton (an unreported case from the Houston First Court of Appeals from 2014 that can be found on Westlaw at 2014 WL 5465704). Henry filed a lawsuit after her daughter died from the complications of a near-drowning at a City-owned pool. A video showed her face-down in the pool for seven minutes before the lifeguards noticed and pulled her out. The City of Angleton had not bothered to install lifeguard chairs even though they were contemplated in the facility design. The Court held that the Government was Immune from Liability Under the TTCA because the lack of response was not evidence of gross negligence on the part of the City employees since it could not be shown they were actually aware and the lack of lifeguard stands had no direct nexus to the drowning.
Conclusion
Before you take your kids to a municipal pool, you need to be aware that the City and its employees do not have the same fear of legal liability that the operators and lifeguards at a privately owned pool face. Sovereign immunity gives them a shield that private citizens do not enjoy. If you do choose to allow your kids to swim in a municipal pool, I highly recommend that you do not trust the City and its employees to do the safeguarding of your kids.
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