Steve: Alright. It is August 30 22, and as promised, after my trials, after my summer of fun at the office upstairs in the law firm, I'm back at the Lawyer Talk Q & A That means I'm taking all the questions that listeners around the globe nice. Stress around the globe. Or submitting to Lawyertalkpodcast.com and the idea of the Q and A as everybody listens to me on The Blitz every week. Uh, and then I've got the longer round tables, but, uh, it's hard to get a little bite sized chunk and get your questions answered quickly, efficiently, uh, and entertainingly. Maybe that's the right word. Uh, so we are going to jump into a question earlier, uh, this morning. Uh, but, uh, before I get into it, just remind everybody, if you have your own question that you want us to answer right here at Lawyeralk podcast, just go to lawyerthpodcast.com. We got a little question, uh, interface. Just submit it and we will get to it. Without further monkeying around, I brought in a special guest for this question, David Goldstein. Anybody's listening to The Blitz, uh, have heard me reference Goldstein, my friend, my lawyer could be yours, too. Dave, how are you doing this morning?

David: Great. Thanks for having me. A lot of times we always talk about this criminal, uh, and what's going on in the criminal world, which is much more exciting. So it's interesting to be here on the civil world for some boring talk.

Steve: Yeah, well, this is hardly boring. And we're going to play some theme music for this one because I think it's awesome. And this is a question from, uh, Jose over in Spain, by the way.

David: Yes, I'm very excited that we are known internationally.

Steve: Yeah, so an international question. I love it. Anybody in their 40s?

David: Um, or 50s like me?

Steve: 50S, probably. Yeah, actually more like 50s.

David: Uh, I don't know about that. This is just bringing back great memories when I was twelve to 15.

Steve: Let's hear that again. You know how cute I always thought you were. That's awesome.

David: That is great.

Steve: We'll just let this run for just a minute.

David: I can picture Phoebe in my mind right now.

Steve: All right, so you might be wondering what the heck this, uh, has to do with Lawyer Talk uh, Q and A. Well, it does. We'll just sort of fade it out into no man's land. Because here's the question today. It's from? Like I said, Jose over in Spain. And I guess we got to get somewhat serious about this. It says, Hello, Steve Palmer. Greetings from a listener to your podcast in Barcelona, Espana. That's Spain, right? I was a French guy, but I think I got that part figured out, uh, in the question in Ohio, who is legally responsible if someone drowns or is injured in your swimming pool? So now everybody gets it because it's that scene from Fast Times, right?

David: Absolutely. Again, anyone over the age of 45 to probably 60 something, right?

Steve: We're all swimming in our dreams just a minute ago. Anyway, does it differ between homeowner and hotel in Spain? A recent court judgment has held up the Spanish ruling that anyone using the pool is responsible for their own safety, even if a lifeguard is working. Lawyers on behalf of British and German tourists keep trying to put the blame on the pool owner for any drownings or injuries. But so far, the Spanish courts have not taken this opinion unless the pool has no maintenance. And, uh, that is again, Jose from Espana. Spain. Halfway across the globe.

David: Halfway across the globe, asking for some advice and, uh, answers. And we can probably provide that to them, at least as it applies to hearing the good old US. Of A. Yeah.

Steve: So, uh, uh, we'll do our best to answer it. Obviously, we don't know any Aspana law, but to answer this, I go to great lengths. I bring in the experts. I bring in Dave Goldstein, civil attorney. And you started doing criminal work?

David: Yeah, so I started my career in the county prosecutor's office. I think that's where I would, uh, face off against you, which really enjoyed and, uh, a good little rivalry, and then left the Frank county prosecutor's office after prosecuting a number of individuals and got a little burned out and went over into the civil world.

Steve: It's an interesting point you made before we jump into this question. It's like, uh, people always say, well, people would think that I would clash swords in an angry manner with prosecutors, and sometimes that happens. But for the most part, it's a professional courtesy.

David: It's very professional. I always make, uh, it akin to sort of a sporting competition that your rivals, so to speak, that you respect each other, but obviously, your goal is to prevail as a prosecutor, seek justice as a criminal defense attorney, obviously, seek the best result for your client.

Steve: Win-win at all costs. Because if we don't, then justice isn't done, obviously. But it's the only way to keep everybody, uh, in check.

David: I 100% agree.

Steve: And I will say one more thing, and that is when I ask you one more question. Uh, my perception of civil lawyers is that I hate them all. And I say that sort of euphemistically, but it just seems like civil lawyers treat each other so poorly. But in the prosecutor's office, when we work together, it was very courteous in sort of, um, a mutual relationship that if we pissed on each other, then it wouldn't work in the future.

David: I agree with you 100%. I think one of the things that when I left the criminal world and went into the civil world, people would ask me, what do you see as the biggest difference? And I would tell them that civil attorneys fight harder over the almighty dollar than attorneys in the criminal world. Fighting over liberties and freedom.

Steve: Boy, that's crazy.

David: And that was really hard for me to accept, because it's like, look, we should be fighting much harder over someone's liberties and freedoms that these attorneys just fight and fight. And when I say fight and fight, it's not advocating for their client. It's just being somewhat nasty. And it just comes down to the almighty dollar instead of seeking justice.

Steve: Uh, I've shared this with you in the last couple of years. I have returned, uh, to the Gospels, I've returned to the Bible, I've returned to Christianity. And even Christ himself says he doesn't say you're precluded from the kingdom of God if you, uh, are a wealthy person. But he does make mention that it's difficult because money gets in the way of everything.

David: I always say, obviously, being Jewish, I only know that first book.

Steve: Uh, yeah, just keep reading.

David: No, we stop right there. But I always say and even in my practice, in my profession excuse me. I always say hogs get slaughtered, pigs get fat. And what that means is, don't be so greedy.

Steve: Yeah.

David: Greed and greed in our profession, in the civil world, I just see it, and it just amazes me. Not only just in the civil world, but even in the business world, I take care of my employees. I know you take care of your staff, but I watch some attorneys and other professions where they just want to grab all the money and be those hogs, and they lose good people and they don't have a good reputation.

Steve: It's sort of this notion that I found I think you too I hardly ever worry about the money, and when I don't, I tend to do better financially.

David: Yes. Uh, I agree. And I've got clients who obviously when you hire a lawyer, it can be very expensive. And you have clients who come to you who are in certain positions and maybe can't afford you financially. And a lot of times, I hate to say it, I will cut them a break. I'll do some pro bono work because I get more satisfaction out of getting them a good result and making their life easier than I do collecting that almighty dollar.

Steve: Yeah. And I find when I chase that dollar, it'll take me right to hell. It makes you miserable.

David: It does. I mean, unfortunately, it is just the way our society is right now.

Steve: Indeed. All right, so let's get to the question. I know I gave you this a couple of weeks ago, so you can prepare.

David: Uh, it's funny, I've had a couple of swimming pool cases, but I have not had any in a long time. And so I had to go and just look through my notes. And it's interesting. In at least Ohio, um, the answer will depend. But typically, the homeowner is not responsible when someone either is injured or dies while using a swimming pool. Courts, um, have said that a swimming pool is open and obvious can be dangerous. And so when you enter the swimming pool and you start swimming in it, uh, you recognize the inherent dangers that can happen. I'll just give you one example, which was an interesting case. There was a pool party after a graduation. So a bunch of probably 17 and 18 year olds were at a house drinking, drinking adult beverages, even though they were not legal. And the parents knew what was going on. Um, and so there was some horseplay going on. They, uh, were drinking more and more. And unfortunately, a young man just drowned in the pool, not sure how, not sure why. And his parents sued the homeowners. And the court basically said, no, we're going to rule in favor of the homeowner, the pool owner, because it's an open and obvious danger. And the fact that they were drinking beer had nothing to do with his drowning. And so the court said, nope, you homeowner, you pool owner, are not responsible. And that's typically how Ohio looks at these kinds of situations. Uh, so it's very harsh, but that's the way the courts have ruled.

Steve: Well, a couple of follow-up questions. In the case you mentioned, obviously, there was underage drinking going on. Could there be other liability? Let's just assume that they could link this kid being wasted to his drowning. Would that create liability independent of being a pool?

David: I m think that could create liability because they were violating a criminal statute if they were providing the alcohol and knew that these young individuals were drinking the alcohol, but it would have to be basically related to his or her drowning. That is correct.

Steve: So the plaintiffs or the kid's parents in that situation could not prove in court that the kid drowned because he was drinking.

David: That is correct. Because his blood alcohol was not at a when they took his blood alcohol, it was not at a high level or anything of that nature that suggested that because of consuming alcohol, he drowned.

Steve: Now here, at least in Ohio, and again, I don't know about Spain, because actually part of his question is, unless the pool has had no maintenance, and I think this may relate to that, um, in Ohio, we always hear you have to have a fence around your pool. What's the deal with that?

David: The question that was posed by the listener is a great question. So if, let's say, for example, the pool had, um, not it was cloudy, or there was just giving you the concrete, there was some defect in the concrete that was in Ohio, more than two inches, then, um, the pool owner and the pool owner was aware of that, we call it a hazard, then the pool owner could be liable for that maintenance or defect. That's a little bit different, uh, because as long as that defect is not open and obvious. So a lot of times you see, even in Ohio, not excluding pools, but a slip and fall case where you're walking in the grocery store, you see that there's some water on the floor because of rain, and you slip and fall in that. Courts have said, well, that's open and obvious. You should have discovered it, and therefore, the store owner is not liable. It's almost the same thing as it relates to a pool. If the hazard is open and obvious, then the pool owner is not responsible for any injury that that hazard causes. If the hazard is not open and obvious, then the pool owner could be liable for that hazard as long as the pool owner knew or should have known about that hazard.

Steve: All right, so what I like to do I don't know if you've heard me say this as an attorney, I like to make things simple, and almost everything can be made simple. So I'm going to sort of regurgitate that you and I speak lawyer talk, right.

David: And you have to it's almost like we have to go down and be in front of a jury, because I hate speaking like lawyers.

Steve: Yeah. So we have to break down. I speak both languages. I speak for the trees. But anyway, what you're saying is, say I have a pool, and the concrete around the pool has been cracked and has, like, more, uh, than two inches offset. So it's higher on one side, creating a trip hazard. And some kids, 17 year old kid, goes long trips, hits his head, goes in the pool and drowns. That's a different scenario.

David: That's a different scenario. Um, the homeowner could be responsible, but again, it's going to come down to facts of the case and whether that so called hazard was open and obviously open and obvious that you could see it. Um, but let's say that there's, uh, some defect in the pool that you couldn't see. Let's say that on the bottom of a pool, sometimes there can be cracks or hazards in there. Or let's say the pool had too much chlorine. And I had a case where there was too much chlorine in a pool, and it burns individuals, uh, eyes that's a little bit different, because, again, that would not be something that would be open and obvious, and that's a hazard that would be known or should have been known by the pool owner.

Steve: Yeah, that would be part of the general stuff. My parents had a pool growing up. I hated it, by the way, because you had to go out every day, you had to balance the water, you had to do a little test kit, balance it. I had to sweep the damn thing. Um, I hated it. Uh, and people are like, oh, it must have been awesome. It's like, no, after a week, it was a pain in the ass. Uh, so if I'm checking that everyday, part of my general maintenance would be to say, all right, there's too much bromine or chlorine in this thing. And, uh, therefore, we need to, uh, get it balanced or not let people swim until we have it balanced.

David: Exactly. Or looking at the bottom of the pool and the shell that's there, and make sure that there's no hazards or anything in that that could cut someone's foot. Sometimes you see in a pool where there's cracks in there, and people cut a foot, cut their finger, and in that situation as well, if it's not open. And obviously, the pool owner could be held responsible, because that's not something that's open and obvious that you would see when you were walking or you should have seen.

Steve: So that's like the homeowner side. Now, I'm curious. Uh, I hate to say this. Let's just say, hypothetically, as a high school group of kids would sneak into a Marriott Hotel and use their pool without actually having rooms at the Marriott Hotel, and there's a lifeguard standing there or sitting there on a bench, uh, how does that change the equation at all?

David: It can change it a little bit because hotels basically, there's a special relationship between a guest at a hotel and the hotel itself. Um, there's a bunch of cases that sort of go back and forth about this, and it's really fact specific because it just depends on what occurred. If you ever go to a hotel and there's not a lifeguard, you'll see sometimes where it says, swim at your own risk, and that's a warning. And again, courts will say, hey, if you drown, the pool is open and obvious. You know, it can be a hazard. Therefore, we're not going to hold a hotel liable. Um, if there is a lifeguard, sometimes that situation could be a little bit different. That if someone drowns in a lifeguard was basically not performing their duty, then a lifeguard could be what we call negligent. And that's the situation where the lifeguard could be. And as an employee of the hotel, could be held liable for the, uh, incident that may have occurred.

Steve: So you got, like, Bobby, the high school kid, as a lifeguard watching, but he's not really watching. Instead, what he's doing is, uh, he's.

David: Texting, or he's talking to some young girl.

Steve: Yeah. He's talking to Jane.

David: Right.

Steve: Or he's talking to Phoebe.

David: Right. Or he's dreaming about Phoebe, and he's in another world. And then there's a situation where someone is drowning and no one is trying to save this individual and the person drowns. Then a court would say that there could be the, uh, lifeguard, and since he was working for the hotel, the hotel itself can be held liable because the lifeguard was what we call negligent, failed to act in a reasonable manner and breach that duty.

Steve: So, Brad, the lifeguard is in the bathroom taking a break, and there's no substitute lifeguard. Yeah.

David: Wondering about Phoebe. Yes. Whether that 32nd break or five minute.

Steve: Break, it depends, I guess, on the individual, uh, and then the kid. Now, what if the kid is a trespasser?

David: Well, that can be that it's a trespasser. It can be a little bit different, but it just depends on the hazard. If you're a trespasser, typically courts will not afford you those protections, but, uh, it will depend on the situation. If you're a trespasser and there was no fence, let's just say it was a hotel and there's no fence and they're violating some of the laws, then the court could hold that hotel liable. Because what the court would say is that if you had a fence up, this individual would not have trespassed on your property.

Steve: Yeah, I want to get back to homeowner's defense because I got sidetracked. So if I have a pool and I don't have a fence around it and I'm a homeowner now, is there really a law that says I have to have a fence?

David: Obviously, there is a law. It's not just not a state law, but from my understanding, it's the jurisdiction in which you live. Which means if you live in the city of Columbus the city of Columbus has a rule that says you have to have a fence or some type of structure around your pool. If you live in, let's say, a suburb here in Central High, like Upper Arlington, they typically will have the same rule. And you have to do that if that happens. And let's say you don't have a fence and someone then walks onto your property or you have some visitors and a toddler goes out and falls into the pool, uh, then again, the courts will look at that a little bit differently because they'll say you are violating a statute and that the homeowner could be held liable.

Steve: Uh, so in law, we use this term per se, but it means just because it is. So if I don't have a fence and a toddler comes in and falls in the pool, is it just liability? Or would they have to prove also that the fence would have stopped it?

David: That's a great point that you ask. In that particular situation, I think you would have to say that the fence may have stopped what had occurred. But again, there's what we call proximate cause, which is a relationship. Uh, and so you have to say that the drowning was caused by not having a fence as opposed to other circumstances.

Steve: Um, now, uh, let's just say the homeowner puts in a pool. And I know we're getting a little bit far afield, but all these questions are coming up sort of like law school redo. So the homeowner has a pool and I put in a pool, but I don't pick up the phone and call my homeowner's insurance company and say, hey, I just put in a pool. Just letting you know. Um, what should homeowners do if they install a pool with respect to insurance? And what can they expect? The insurance company to say, yeah, if.

David: Any homeowner installs a pool, the first thing you should do, even before you install it, is contact your insurance company or your insurance agent to find out what coverage you need and how much it's going to cost. You have to let your insurance company know that you have installed a pool or have a pool or they're not going to provide coverage to you. And if something happens, you're then going to be personally liable and there's going to be no insurance there.

Steve: So to play this out, uh, in the cases you've worked on are the cases where the courts have not found liability. What probably happens is, let's take the high school kid who drowned at the party. His parents sued the owners of the home. But what the owners of the home did is they picked up their phone and said, hey insurance company, I got a lawsuit, help me.

David: Uh, absolutely. It's just like a car accident. And that's exactly if they call up the insurance company when the incident occurs, report what happened, and then once they get sued, they call back their insurance company. And then the insurance company, typically, in most policies, will provide them a free attorney and coverage. So if, let's say, a jury or judge found that homeowner to be responsible and pay monies, then the insurance company would pay monies up to their limit. So it's very akin to a car accident, when someone gets sued in a car accident, that their insurance will handle that. But if they have not told their insurance company they have a pool, then the insurance company is going to say, hey, there's no coverage for this because we never ensured that type of risk.

Steve: So what they, then they're losing really two things. They have to then go hire their own lawyer for whatever, how much an hour. And, uh, the other thing they're losing, if they lose the case, they've got to get in their own pockets and.

David: Pay the fees they do. And in the legal world, that's called an indemnification. The insurance company then is not going to indemnify or pay. So if a judgment is for $500,000 against that homeowner, typically insurance would pay that. But if you don't have insurance, then insurance is going to say sorry. And now the homeowner is really yeah. In an assessment of exactly.

Steve: So one, uh, I had another question. I HM, just lost it. Um, that's all right. We, uh, can wrap up with that.

David: No, it's just interesting. And I always tell people and listeners that with anything, if you're doing anything at your house or anything with your vehicles or anything that you're changing, make sure you contact your insurance company to find out what your coverages are. You and I have been doing this a long time, Steve, and how many clients come to us and have been in the dark about their own insurance? Um, and I tell people a lot of times insurance agents don't not all, uh, there's a lot of good insurance agents out there, but some insurance agents, just like some lawyers, don't advise their clients properly. And I've been doing this for over 25 years and I can't tell you the number of individual clients that come to me with lack of knowledge about their own insurance and sort of are apathetic and they just don't think about it. So I always tell people before you do anything major either at your house, whether it's renovations, installing a pool before you purchase a new car, look at your own insurance coverage to make sure that if something happens that you are covered so you do not have to pay any monies out of your own pocket.

Steve: Yes, that's a great point because I do these Q and A's or I do this question and answer with the blitz every Wednesday. And so often, you know what, I get most of renters questions and they're asking me about something, uh, that happened or some issue at their plate. And even homeowners I just said, listen, um, your dog bit somebody, what do you do? Or I've got this problem, there was a damage because of water to all my personal property. I always tell people if you called your insurance company and they're like, huh, didn't huh think about that. And I said, listen man, you pay for it, you pay for it. You should call and at least check.

David: And see if it's covered, check and see. And a lot of the renters that are out there, renters insurance is so cheap, but people don't think about it, they don't get it, and they don't get the right coverage. And then someone breaks into their place or there's an issue, like you said, a flood or something of that, and then they're financially harmed because of that. And it's so cheap. Just like I tell people, an auto insurance look at umbrellas. Umbrellas are very cheap. An umbrella, what an umbrella is, you have your own auto insurance, but then an umbrella is an extra protection of layer for you and it costs usually a million dollars, usually costs like $120 a year.

Steve: And that's it. Think about that and what you're really saying with this umbrella, think about it. Like an umbrella, it's something that covers everything over top of you. So you have your auto insurance, you have your homeowners insurance, and then you've got this umbrella, which is like an extra layer of water protection system.

David: It is. I mean, if you own a pool and something like this happens and then you are protected. Because when I get calls from clients, obviously they're like, oh my goodness, are, uh, they going to be able to take my house? Are they going to take all my wages? Are they going to take all my savings? And obviously that is a huge stress as we talked about, obviously money. And if you have that insurance, which is not very expensive. You have a peace of mind. I hate to go back to the old, uh, commercials, but you really do have a peace of mind as long as you have that protection.

Steve: Yeah, I have a substantial umbrella policy that cost me hardly anything, and I never worry about not having too much auto coverage. Look, nobody wants to hurt anybody driving. Nobody wants to hurt anybody in their pool. Nobody wants anybody to slip and fall on their house and get hurt. And when they get sued, I think people tend to take it personally. If my friends sued me because their son died, it would be an awkward situation. But I could de awkwardify by just calling my insurance company and say, look, deal with this, please.

David: Right. And that's what you do. Uh, like you said, people take it personally. And I tell people, don't take it personally. I always tell people, anyone can file suit against anyone as long as they have the requisite filing fee, which is different jurisdictions. But here in Columbus, it's about $300. And don't take it personally, and you just deal with it. And hopefully you have that insurance. So then you can say it's just you said your insurance company, you deal with it. I don't want to deal with it.

Steve: All right, well, I think that's a good place to wrap it up, I think. Jose, we've answered your question. If you have more questions, please feel free to follow up. I think it's awesome that we have listeners in Spain, by the way.

David: It's incredible, and I'm really honored to be here. I think it's pretty cool that now I can tell people I'm global.

Steve: You are global. And I was recently rated the number two criminal defense podcast. How about that? I didn't know there was such a category, but I'll take it.

David: Well, in my mind and heart, you're number one.

Steve: Uh, number one in your program. That's right. All right, well, with that, we're going to wrap up another riveting 25 minutes episode of Lawyer Talk q and A answering Jose's question all the way over in Spain about swimming pools and maybe a little bit more. So I think, uh, the backdrop there and some of the extra, uh, will be helpful in understanding how liability works here in Ohio. Everybody's got their own question. Again, just look it up, lawyertalkpodcast.com. And I should just mention this. If you go to the website and you really like what you're listening to, I do this for free. Uh, nobody pays me to do this. I like doing this. But if you think it's really awesome and you just want to become a patreon and give me a buck a month, that'll buy me a cup of coffee as I sit down here. Why not do that?

David: I'll donate a dollar today.

Steve: Yeah, donate a dollar, sign up, become a patreon. And if you want your own podcast, Go to channel 511, com, hook you up with Brett over at Circle 270 Media. We'll get you squared away and set up. You can sit at the same microphone where Dave Goldstein is sitting right now and educate the world on whatever podcast topic you think is appropriate.

David: The seat is warm, so come on.

Steve: It is warm. All right? So, for now, that is lawyer, uh, talk Q and, uh, off the record on the air, at least until now.