The "Swim at your own risk" sign at the community pool is easy to treat as the association's liability plan. It's a notice, and a notice does less than it looks like it does.
Amenity liability runs on signage, signed waivers and insurance. The board's amenity rules are where the signs and waivers get written down, and the insurance has to match what those rules allow.
What a waiver does and doesn't do
A signed waiver looks like the strongest of the three, and it has limits. Cornell's Legal Information Institute explains the doctrine behind it, assumption of risk, in two forms. "Express assumption of risk, typically achieved through a signed waiver, prevents an injured plaintiff from recovering beyond the terms of the waiver so long as the waiver is not against public policy." Implied assumption of risk "prevents a party with knowledge and appreciation that they are at risk from recovering against a tortfeasor for any harm within that risk."
"The terms of the waiver" means the document covers what it actually says and nothing more, so vague language protects less. "So long as the waiver is not against public policy" means a court in your state decides how far any waiver can reach. States draw that line differently.
A waiver helps within its terms; whether it reaches a broken gate latch or a missing drain cover depends on its wording and on where your state draws the public-policy line. Have the association's attorney draft or review the waiver for your state, and have it signed by the adult resident, with a separate signature for each adult in the household if counsel recommends it.
What a sign does
A sign is notice only. It may help show a swimmer knew about a risk, the implied form of the doctrine. Don't expect it to cover a hazard the association knew about and didn't fix. Post the rules the board adopted at the entrance too, so the sign a swimmer reads and the rules in the minutes say the same thing.
Signage still matters. The local health code may require specific signs at a pool. Your insurer may expect certain ones. And the posted rules are the board's evidence that residents were told what the rules were. Ask the health department and the insurance agent which signs they require or expect, then post exactly those, legibly, at the entrance and where they apply.
What your insurer will want to see
The association's general liability policy sits behind both. CAI's HOAresources guide to who covers what describes general liability as responding "to claims alleging bodily injury or property damage connected to common areas, helping protect association funds from lawsuits and settlements." The pool and the clubhouse are common areas.
When a claim comes in, the adjuster will ask what the association knew and what it did about it. The records that answer those questions:
- Inspection logs for the pool, the gate hardware and the clubhouse.
- Water testing records, if the health code requires them.
- The pool contractor's current certificate of insurance.
- Board minutes adopting the amenity rules.
- Signed waivers and rental agreements.
- Incident reports, written the day something happens.
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Ask the agent what conditions the policy puts on the pool, and whether anything the board is planning, such as an event with alcohol or a new piece of equipment, needs to be disclosed first. The board's insurance guide covers the association's other policies, including directors and officers coverage.
Walk the amenities
The exposure a board can do the most about is the conditions it can see: a latch that doesn't catch, a cracked deck, a light that's been out for a month. Walk the amenities on a schedule, write down what you find, and fix it or close the area until it's fixed.
Record each walk the same way every time: the date, who walked it, what they found, and what was done about it. When someone gets hurt, write an incident report that day with the time, what the person says happened, who saw it, and the condition of the area, and file it with the other pool records. Leave opinions about fault out of it; the report records what was seen, and the attorney and the adjuster take it from there.
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Board members ask about their own exposure too. The post on whether board members can be sued covers how that works and what protects them.
HOA-OS lets the board collect waivers and rental agreements through online forms with a signature field. The form builder is on the Community plan; plans are at hoa-os.com/pricing.
Sources
- Wex: Assumption of risk, Cornell Legal Information Institute
- Insurance in Community Associations: Who Covers What?, CAI HOAresources
Related Reading
- HOA Insurance: The Coverage Your Board Really Needs
- D&O Insurance: The Coverage That Protects Your Board
- The HOA Risk Management Playbook Every Board Needs
After an injury, the association's own records answer the adjuster's questions or they don't.