Swimming pools

Kentucky’s residential building code requires a barrier around an outdoor in-ground pool at a one- or two-family home, and local rules may add more. A pool owner’s responsibility to guests and to children who wander in comes from court decisions.

Barrier requirements

The Kentucky Residential Code, section R326, covers pools, spas and hot tubs that hold water more than 24 inches deep. For an outdoor in-ground pool, the barrier must:

• Stand at least 48 inches above grade, measured on the side facing away from the pool, with no more than 4 inches of clearance at the bottom.
• Have no opening that a 4-inch sphere could pass through.
• Have pedestrian gates that open outward from the pool, close on their own and latch on their own.
• Include added protection, such as a powered safety cover or door alarms, where a wall of the house forms part of the barrier.

Spas and hot tubs with a safety cover that meets the ASTM F 1346 standard are exempt. The code lists pools built completely above grade as an exception to its scope. State regulation does not require permits or inspections for a single-family dwelling unless a local ordinance does, and local zoning may set its own pool rules.

Children and “attractive nuisance”

Kentucky courts apply the “attractive nuisance” doctrine to trespassing children who are too young to recognize a danger. The Kentucky Supreme Court has said the doctrine does not apply to artificial bodies of contained water, such as ponds and reservoirs, unless there is a hidden danger or an unreasonable risk of death or serious harm (Mason v. City of Mt. Sterling, 2003). Courts decide these cases on their facts.

Guests and insurance

A social guest is a “licensee,” a person present with the owner’s permission. The owner must warn of hidden dangers the owner knows about, but has no duty to warn of a risk that is open and obvious. In Scifres v. Kraft (1996), the Court of Appeals held that hosts were not liable to an adult guest who dove into their pool and struck the far wall. Insurance coverage for pools, slides and diving boards depends on the terms of the owner’s policy.

Public and semi-public pools

A pool at a private single-family home that is used only by the occupants and their guests is not a “public swimming and bathing facility.” Other pools, such as those at apartment complexes, hotels and clubs, fall under 902 KAR 10:120, which requires an annual permit, sets water quality and safety standards, and provides for regular inspections. In Campbell County the Northern Kentucky Health Department inspects these pools and takes complaints.