House Bill 902 was signed into law by Governor Cooper on July 2, 2020 and grants some limitations on liability for privately owned swimming pool operators who open their pools during the COVID-19 pandemic. The Bill applies to community pools owned by private entities, such as apartment complexes, homeowners associations and condominium associations, and protects those pool operators from liability for injury or death allegedly related to COVID-19 if those pool operators have opened the pools in compliance with the various Executive Orders for pool safety issued by the Governor. Probably the most important Executive Order here is Executive Order 141, which contained a number of Requirements relating to pool safety during the pandemic. A discussion of Executive Order 141 and its Requirements may be found in this article: Pools in Phase 2: Requirements for Reopening NC HOA/Condo Pools. If a private community pool is opened consistent with the Requirements, and if the pool operator exercises reasonable diligence in enforcing the Requirements, the Bill should bar injury or death claims against them related to COVID-19 for claims arising from July 2, 2020 through one year after the expiration of Executive Order No. 116.
So, what does this mean for your association?
All privately owned community swimming pool operators should continue to abide by all applicable Executive Orders for operation of pools during the coronavirus pandemic. If they do, then they will be protected from ordinary negligence claims of personal injury or death arising related to COVID-19 allegedly contracted at the pool.
Ordinary negligence can be very broadly defined as a breach of a duty of care owed to a party that results in injury. For example, a pool operator has a high-touch cleaning program in effect but an area is missed and someone becomes ill. The Bill does not prevent someone from suing a pool operator, but it may prevent them from recovery in these circumstances.
This Bill does not protect privately owned community swimming pool operators from claims arising from gross negligence, wanton conduct or intentional wrongdoing. Gross negligence is the idea that a party acted in complete and total disregard to the health and safety of others in act. For example, the pool operator knows that no one is cleaning the high touch areas, and even that individuals with active coronavirus are using the pool, but fails to take action. In this circumstance, the Bill will provide no protection.
For any advice on operating your HOA/condo pool, contact one of the community association attorneys in the Greensboro, Charlotte, Triangle or Coastal offices of Law Firm Carolinas.