Starting pool service for a new customer involves liability risks beyond what’s normally encountered with an existing customer. This risk can be minimized by recognizing problems and dealing with them early in the relationship. Here are some areas to consider when taking on a new client.
Do I want to do business with this customer?
It’s said that 90 percent of complaints come from 10 percent of customers. Some people, it seems, are just impossible to please. Imagine the reduction in liability exposure if you could identify difficult customers in advance and avoid doing business with them.
I recall my first year as a young attorney. I had a great corner office on the top floor and a wall full of empty file cabinets. One day, a woman came to me seeking legal representation. When I asked about the nature of her problem, she told me she had just fired the second lawyer on her case. She explained that her first lawyer was incompetent and the second one was no better. She wanted me to take over her case and sue the prior two attorneys for malpractice. Bells started ringing in my head. Was I to be the next lawyer foolish enough to deal with this problem client? For a moment I thought of my empty file cabinets, but reason quickly prevailed and I politely declined to take her case.
Pool techs should use the same good sense when evaluating a potential customer. Look for subtle clues in your first meeting. Was the customer responsible for the poor condition of the pool by not authorizing routine repairs? Ask a few open-ended questions, such as “Why are you seeking my services?” or “What did you think of your last pool technician?” The way the customer responds will give you insight into your future dealing with this person. It’s much easier to decline an account than trying to drop it after a dispute.
What services are you providing?
I recommend service techs use a written service agreement for pools they maintain. The agreement need not be complex, but even a single-page document should specifically define your services and more importantly, the services that you won’t be providing. This is especially important when taking on a new account, since there is no established service history to use as evidence of an agreement in the absence of a written document. Consider the case of a fire caused by a malfunctioning heater. Did the service tech’s duty extend to heater maintenance? A court may decide this question as well as your legal liability for the damages if you’re servicing pools without a written agreement.
My most common claims involve plaster etching, staining and deterioration. In some cases the plaster damage existed before the service tech ever touched the pool, but there is often no way to establish this. To avoid responsibility for this pre-existing damage, the service tech should document the condition of the plaster before putting the pool onto service. A simple diagram of the pool, indicating the areas of etching, delamination or staining is all that is needed. Be sure to include the date of the drawing and ask the customer to initial it. With this drawing it will be much easier to refresh the customer’s memory of that pre-existing damage if you’re later accused of ruining the plaster.
Defects and dangerous conditions
You’re at a new customer’s pool to provide a bid for service, and you notice that the heater is installed too close to a wall and it vents near a bedroom window. The equipment is not bonded, the light is not working and a spa drain cover is missing. It’s time for the prudent pool tech to have a serious discussion with the customer.
A pool tech has a duty to inform a customer of dangerous conditions at a pool and will be liable for the resulting damages if he or she fails to do so. But sometimes merely informing a customer is inadequate. Dangerous conditions that can foreseeably lead to property damage or serious injury must be corrected as a condition of your agreement to provide pool service. This issue can be tough, particularly in a struggling economy or where pool service is to be provided to a rental dwelling. Landlords are frequently very cost-conscious. Remember, you might be liable in this situation, so stand your ground. A waiver or release signed by your customer will not protect you from the lawsuit of a tenant or guest hurt while using the pool.
Remember to look beyond the equipment pad when surveying the potential customer’s pool. Are the gates operational? Does the pool have a single main drain? Have the drain covers been updated? Is the pool equipped with a safety vacuum release system? I recommend SVRS devices even on residential pools and you should discuss these new safety devices with your prospective customer. It is best to follow this discussion with a written bid for the upgrades you recommend.
Many pools have worn-out diving boards that need replacing. Your initial meeting with the customer is an excellent time to suggest removing the board, which might not have been used in years. Some customers will welcome the additional deck space resulting from the removal, but others will want the board replaced. Many liability insurance policies exclude coverage for diving boards so make sure you have it before working on them.
Expect that equipment will fail and make sure you have not overlooked a hidden hazard. Commercial pools generally have automated chemical feeders or controllers. My company was recently involved in the defense of a lawsuit where two people suffered burns and scarring when a chemical feeder ran in the constant “on” position, releasing five gallons of chlorine in an 800-gallon spa. The feeder was properly working when the pool tech started service on the pool. But he failed to consider that people would be hurt if the feeder malfunctioned and didn’t take adequate steps to ensure their safety in the event of a malfunction.
Many swimming pool claims involve property damage or injury caused by improperly maintaining chemical balance. Defending these claims is very difficult when the pool service tech hasn’t kept a routine log of the chemical readings, including the sanitizer, pH and alkalinity levels. Imagine a case where a customer alleges an E. coli infection contracted from the pool water. Proper sanitation effectively kills the E. coli bacteria, but without a chemical log the pool tech will be unable to present credible evidence that proper chlorine levels were maintained. Think of your chemical log as a “get-out-of-court card.”
Your log should also include a record of your conversations with the customer, notices of potential problem issues and the need for periodic maintenance, such as filter cleanings.
Many pool techs perform start-up procedures on newly plastered pools. Start-ups are high-risk jobs and I handle many claims against pool techs for plaster damage following the procedure. Where possible get details of what method the plasterer wants used in the start-up procedure. I recommend the service tech review the plasterer’s contract to see what warranties he has made to the pool owner regarding mottling and other common plaster issues. Finally, consider how the plasterer will react if a pool needs to be re-plastered after the start-up. Will you have a partner in resolving the issue with the customer, or an adversary that is quick to blame you for the damage?
Raymond Arouesty is an attorney and president of Arrow Insurance Service. His company provides insurance to pool product manufacturers and service technicians. He has defended more than 2,000 pool-related claims in the past 30 years.