Homeowner Loses Case Against Pool Builder Over Diving Accident

In 2008 Randy Johnson filed suit against Mission Pools of Escondido after diving into his backyard swiming pool from the diving board. Johnson hit his head on the pool floor, suffering a fracture to vertebrae in his neck with resulting medical bills of $22,400. He contended that the construction standards used by Mission Pools were improper and unsafe and that Mission was therefore liable for his injuries.
Mission Pools contended that the pool was safe for proper diving and it was not responsible for the improper use of its pools. Mission argued that Johnson ignored warnings regarding proper diving technique and that there was no evidence that the standards were unsafe.
Prior to trial, Johnson demanded $425,000; Mission offered $30,000.
Trial began on December 1, 2009 and lasted 7 days, but the jury deliberated for only 3 hours before reaching its verdict that Mission Pools was not liable for Johnson's injuries.

GETTING PAID: Effective Accounts Receivable Management is the Best Option

It is a common scenario: a pool service tech is owed a few hundred dollars and files suit against his customer in small claims court. The customer files a cross complaint and the pool tech is shocked when the court rules the he must pay his customer thousands of dollars for damages caused by his negligent service. It is a situation that we often see and should be anticipated before starting legal action.

Defendants are permitted to file a cross-complaint or counter-suit in all jurisdictions. It is an effective strategic move to simultaneously defend against the pool tech’s claim for unpaid service and obtain money damages for what is often normal wear and tear to plaster, tile and equipment. In some cases, the customer hires an attorney to transfer the case from small claims to superior court where the service tech must have his own legal representation and where potential recovery is much greater. The pool tech that was initially in control of the situation is now put on the defensive, fighting to preserve his reputation and avoid a judgment ordering him to pay his former customer. So how does the pool tech who is rightfully owed money avoid falling into this trap?

Rule #1: Effectively manage your accounts receivable:

Staying on top of your unpaid invoices is by far the best way to avoid the problem. A customer who can’t pay an invoice for one month’s service will generally be just as unable to pay an invoice for two or three month’s service. Your likelihood of facing a battle in court increases with the amount in dispute. Develop a set of notices for your customers with overdue invoices and send these notices regularly. When you’re not paid, advise your customer in writing of the date on which service will be terminated for non-payment. Your chance of eventually collecting on a small invoice is greater and if necessary, it’s easier to write-off an unpaid bill for one month rather than three month’s service.

Rule #2: Collection agencies can be a cheap alternative to a lawsuit:

Collection agencies are professionals at the art of collecting unpaid bills and they can save you the time and emotional turmoil of dealing with difficult customers. Transworld Services offers IPSSA members a preferential rate for its services and information is available in the Members Only section at IPSSA.com.

Rule #3: Critically evaluate your customer’s defenses before filing suit:

Swimming pools are subject to wear and tear and very few, if any pools are free of any staining, etching or delamination. Normal wear and tear and even calcium deposits on tile can support your customer’s contention that (1) you aren’t entitled to recovery due to your poor workmanship, and (2) you owe them damages. A Judge is not an expert in pool service and you need to accept this fact in determining your chance of success.

Rule #4: Your time is valuable:

Even a small lawsuit is time consuming and that is true even for a small claims court lawsuit. Your time will be occupied filling out paperwork and initially appearing in court for the hearing. Small claims court matters are often heard by commissioners, but either party can request that the case be heard by a judge, thereby delaying the hearing. In California, a defendant that loses a small claims court matter can appeal to Superior Court where the case will be re-tried. You’re neither servicing nor repairing pools when you are in court which means that you are losing money for every hour that you spend waiting for your case to be heard. Consider what your time is worth.

Rule #5: Collecting is often difficult even if you win your case:

You filed your Complaint and you successfully argued your case before the small claims court commissioner and the Superior Court judge on appeal. You are the proud recipient of a judgment but you still haven’t seen any money. Now what?
In California, a defendant has 30 days in which to satisfy the judgment; if your customer doesn’t pay you’ll need to go back court and obtain a Writ of Execution and deliver it to the sheriff who will attempt to seize funds from the customer’s account. If he has changed banks you will need to hire a private investigator and you should expect to pay $100-$200 for this service. There are other ways to obtain this information, but those require additional time in court.

In summary, the small claims court lawsuit is a poor alternative to efficient accounts receivable control given the risk of loss on your customer’s cross-complaint combined with the unprofitable time spent in court. IPSSA members considering legal action against their customers are advised to evaluate the strengths and weaknesses of their cases before beginning a process over which they may lose control.

Elk vs. Pool. Judgment for Elk.

Denver television KDVR reports that a Colorado family, discovered a 1000 lb elk in the family pool after hearing the sound of heavy breathing from the back yard. The elk sustained no damage, but that can't be said for the diving board and liner.

I'm Stuck On You

The Orange County Register recently reported the case of a man who decided to use his body to test the effectiveness of a channel drain in the spa at his condominium. Guess what? He succeeded in entrapping himself onto the cover until the SVRS released the suction. Rumor has it that he will next test the effectiveness of seat belts (or the lack thereof) in high speed car crashes!

Investigator's Report Released in Toddler Entrapment

On August 25th I posted the story of an entrapment of a 3 year old girl in Key Biscayne, Florida. The Miami-Dade Health Department has released its invertigative findings below:
(Hint: Follow Link or Right Click to Enlarge Text)

MDCHD Investigation Key Colony Pool Entrapment Case

What a Stinky Mess!

On a Friday in June, our client drained a residential swimming pool to perform a routine acid wash. The home had been in foreclosure and the new purchaser wanted the pool to look great when she arrived with her four children the next day. Our service technician was not inexperienced with acid washing pools - he had performed many jobs like this in the past. As usual, he placed a submersible pump in the deep end and ran the discharge hose into the sewer clean-out in the back yard. What was different, however, was that this house was connected to a septic tank. The tank quickly filled and flooded the house with hundreds of gallons of "black water", a term used to describe waste water containing fecal matter and urine.

We soon received a telephone call from the purchaser who explained that she sold her prior home and had to move the next day. It would take at least a week to remove the bacteria laden water and disinfect the house but she had no place to live. This pool tech's error resulted in a claim of almost $20,000, which included living expenses for the family, who moved into a hotel during the restoration process.

It is common for water to back up into homes, even when pools are drained into sewer lines. We recommend that pools only be drained when the owner is home and can check for the first sign of an obstructed drain line. (We also advise against draining pools into septic tanks).

What's Going On In Pensylvania?

On August 21st, another Pennsylvania woman was seriously hurt, suffering thermal burns and respiratory damage when she inhaled fumes after mixing two different swimming pool chemicals that caused fireball and toxic plume. She was airlifted to Temple University's burn unit and remained on a ventilator after mixing Leslie's Power Powder Plus and Leslie's Chlor Brite in a bucket with water. Power Powder Plus is is a Calcium Hypochlorite based sanitizer and Chlor Brite contains Sodium Dichloro-s-Triazinetrione. The local fire marshall stated that this is a common occurrence, happening at lest once a year in Middletown apparently because some homeowners don't like the look of undissolved granules at the bottom of their pool. . The severity of this explosion was made worse by the fact that the homeowner mixed the chemicals with a very small amount of water. "You can't mix pool chemicals together without having a violent explosion" he said.

And Here's Another Reason to Hire a Professional Pool Service Technician

A Pennsylvania woman was rushed to the hospital for treatment of burns to her head, ears and eyes on June 24, 2009 after mixing pool chemicals in the backyard of her home. The homeowner claimed that she had been maintaining her pool just fine for the past 20 years. On the day of the explosion she said the pool was green (. . . huh?). She had a couple of bags of chlorine shock and a small amount of granular chlorine, but she concluded that she didn't have enough of either to properly treat the pool. That was when she decided to mix them together causing an explosion that reached two stories high. She was later quoted as saying "I feel like I've been laying in the sun for three months" when describing her injuries.

Chemical Spill Closes I-15 in San Diego

A chemical spill from an overturned pool service truck closed the northbound lanes of I-15 at I-8 in San Diego on August 3rd. The California Highway patrol reported that approximately 20 gallons of murietic acid and chlorine spilled onto the freeway resulting in a sig-alert.

The man behind the wheel of the 2001 Ford Ranger was reported to be 26-year-old Jake McKinney of San Diego, who lost control of the truck for unknown reasons just south of Interstate 8 about 1 p.m., and it crashed into a center wall.

Haz-Mat clean up expenses are typically charged to the driver, but most truck insurance policies provide no coverage for this type of claim.

Arrow Insurance Service includes Hazardous Material Clean Up Insurance on many of its commercial liability policies and this coverage is included for all members of the Independent Pool & Spa Service Association ("IPSSA").

My entry for the WPSS Design Award in the "Portable Spa Category"

El Nino Predicted for 2010 - Trouble in Forclosureland

An increase in requests by banks to drain and leave pools empty is causing concern among pool techs in light of predictions that 2010 will be a wetter than normal year. The National Oceanic and Atmospheric Administration (NOAA) recently announced El Nino, a climate phenomenon with a significant influence on global weather and ocean conditions, has returned and will remain through the winter of 2009-2010. The combination of greater than normal rainfall and and an empty pool shell increases the risk of an empty pool lifting from the ground.

We recommend that pool techs reject lender requests to drain and leave pools empty. The risk of damage to the pool shell far outweighs any cost saving the bank will realize by draining the pool and discontinuing pool service.

Non-compliance with VGBA

We've been hearing that some commercial pool owners are foregoing VGBA retrofits based upon the belief that the federal legislation may not be locally enforceable. Commercial pool owners should, however, be aware that state common law generally holds premises owners responsible for damages resulting from dangerous conditions at their properties. If an entrapment accident does occur, a pool owner (aka: defendant) will have difficulty overcoming an argument in the resulting civil trial that the entrapment would have been avoided by the installation of an approved suction outlet cover and one of the excellent SVRS devices currently available. For more information on SVRS devices check out Vac-Alert Industries, Stingl Products and Hayward Pool Products.

Trusting the sanitizer

Swimmers in China enjoying themselves at a public pool in Nanjing, the capital of the Jiangsu Province as tempertures reach as high as 104 degrees.

Blog Poll -

Would you rather be:

(a) The lifeguard

(b) The pool tech

(c) A swimmer

As if mice, rats and possums weren't enough . . .

A toddler was bitten by a rattlesnake Saturday at a swimming pool at Roaring River State Park near Cassville, Missouri.
Two-year-old Miller Reid was exiting the swimming pool when he was bitten by a pygmy rattle snake, which was under the lip of the pool.
The pool was evacuated and Miller was taken to a Joplin hospital the air lifted to a Kansas City hospital.
A spokesperson for the Department of Natural Resources says this was an unusual and isolated incident.

Jackhamer and saw needed to free Florida toddler from vaccum suction pipe

It took jackhammers and concrete cutting saws to free a 3 year old girl from a 2" vacuum suction pipe in Key Biscayne, Florida Monday as a news helicopter captured the rescue. All turned out well for the toddler, who was reported recuperating in the hospital.

Link to video

Think before opening a main water fill valve

A pool builder client of ours recently replastered a pool. The job went well and at the end of the day he intended to wash the remaining plaster dust off of the customer's driveway. When he went to use the garden hose, however, he discovered that the main water fill valve was turned off. He opened the ball valve on the fill line and proceeded to wash down the driveway all the time unaware that the plumbing inside the home had been disassembled for an ongoing repair. The driveway was clean . . . the home flooded. Moral to the story: a closed main water fill valve is a red flag. Proceed with caution!

Pool Tech commits suicide in customer's pool

On Wednesday, August 19th, one of our Bakersfield, California pool techs went to his last pool account of the day, tied a rock around his leg and stepped into the deep end of his customer's pool. He was found by the home owner late that afternoon. News outlets are reporting the the case to be a suicide with no signs of foul play.