Who Is Responsible for a Swimming Pool Drowning in Massachusetts?

It depends on whose pool it was and how the person got to it, and the statute almost everyone quotes does not apply to most of the pools people drown in. Massachusetts does have a pool enclosure law, M.G.L. c. 140, sec. 206, and it is specific down to the height of the gate latch. It also reaches only public and semipublic outdoor inground pools, which the section defines as pools at hotels, apartment houses, country clubs, camps, schools and similar places. There is no Massachusetts General Law requiring a fence around a private backyard pool at all; that duty comes from the state building code and is enforced by your local building department. When a child gets into a pool nobody let them into, the case is decided by M.G.L. c. 231, sec. 85Q, a five-part test that has nothing to do with whether the pool was tempting. If a pool injured someone in your family, call Jim Glaser Law at (617) JIM-WINS; the line is answered 24 hours a day and the first telephone consultation is offered without charge.

The Fence Law Everyone Cites Does Not Reach a Backyard Pool

Search for the Massachusetts pool fence law and you will be pointed to M.G.L. c. 140, sec. 206. That citation is real, the section exists, and it is genuinely detailed. It is also the wrong law for the pool most people are asking about.

Here is how it opens:

Every public and semipublic outdoor inground swimming pool shall be enclosed by a fence six feet in height and firmly secured at ground level provided that any board or stockade fence or structure shall be at least five feet in height, but if over five feet in height, the fence shall be chain link.

Public and semipublic. Outdoor. Inground. Three limits in the first eight words, and the section does not leave the first one to guesswork. It supplies its own definition. For the purposes of the section, a semipublic outdoor inground pool

shall mean a swimming or wading pool on the premises of, or used in connection with, a hotel, motel, trailer court, apartment house, country club, youth club, school, camp, or similar establishment where the primary purpose of the establishment is not the operation of the swimming facilities.

The definition then adds a second category: a pool constructed and maintained by groups for the purposes of providing bathing facilities for members and guests only.

A homeowner’s backyard pool is not on that list, and the penalty paragraph confirms who the section is aimed at, because it reaches any owner or manager of such public or semipublic pool who fails to comply with the provisions of this section. A demand letter that cites sec. 206 against a private homeowner tells the other side’s lawyer that nobody opened the statute.

That does not mean the section is unimportant. It means it is important in a different set of cases than the ones it usually gets cited in, and those cases are common ones: the pool behind an apartment building, the pool at the motel, the pool at the summer camp, the pool at the country club.

What Section 206 Actually Requires

If your case involves a pool at one of those places, the section is worth reading line by line, because each sentence is a separate thing that can be measured after the fact.

The barrier. A six-foot fence, firmly secured at ground level. Board or stockade construction may be five feet, but anything over five feet has to be chain link. The section then repeats itself in a way that matters:

Such enclosure, including gates therein, shall not be less than six feet above the ground

The gate. This is the sentence that decides cases. Any gate

shall be self-latching with latches placed four feet above the ground or otherwise made inaccessible from the outside to children up to eight years of age.

Two independent requirements sit in that clause. The gate has to latch itself, and the latch has to be out of a small child’s reach. A gate that closes but does not latch fails the statute. A gate that latches at waist height fails it too.

The gaps. The enclosure has to be built and maintained

so as not to permit any opening in said enclosure, other than a gate, wider than three inches at any point along the enclosure.

Three inches is a measurable number, and a photograph with a tape measure in it is evidence.

The equipment. The statute says that any such pool

shall be equipped with at least one life ring and a rescue hook.

Not a life ring or a hook. Both.

The off-season. A closed pool that quietly refills with ground water is the fact pattern in the Massachusetts pool drowning case discussed below, and almost nobody knows this requirement exists:

Every outdoor inground swimming pool open to the public, other than a public inground swimming pool fed by a spring or stream shall be drained or covered within seven days of closing.

The inspection. The section also provides that

Every public and semipublic outdoor inground swimming pool shall be inspected annually by the inspector of buildings of each city and town in which said pool is located.

That inspection generates a municipal record, and it is one of the first public records worth requesting after a serious pool injury, because it can establish that the town saw the condition and when.

The penalty. A fine of not more than one thousand dollars. That is the criminal consequence, and it is small. The civil consequence of the same violation is the part that matters to an injured family, and Massachusetts treats a violation of a safety statute as evidence of negligence rather than as automatic liability. Our page on how fault is determined explains what that distinction does to a case.

The General Laws Contain No Residential Pool Fence Requirement

This is a negative claim, so it was checked twice by different methods before it went on this page.

A full-text search of the Massachusetts General Laws for the exact phrase swimming pool returns exactly three sections. One is c. 92, sec. 66A, which sets a minimum age for a lifeguard employed by the former metropolitan district commission. One is c. 272, sec. 92A, a public accommodation discrimination provision. The third is c. 140, sec. 206, quoted above. Searching for wading pool returns sec. 206 by itself. Separately, the Chapter 140 table of contents was read in full, and sec. 206 is the only pool entry in it; there is no sec. 206A and no sec. 206B.

So the rule that governs a private backyard pool is not in the General Laws. It is in the state building code, and the statute that creates that code is M.G.L. c. 143, sec. 94, which gives the board of building regulations and standards the power to adopt rules on construction, permits, equipment installation and safety, and then provides that those rules

shall comprise and be collectively known as the state building code.

The same section makes a violation punishable

by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both, for each such violation

and adds that

Each day during which a violation exists shall constitute a separate offense.

The practical consequence for a family is simple. The barrier specifications that apply to a residential pool, the height, the gap sizes, the gate hardware, the rules for above-ground pools and for a house wall that forms part of the barrier, are code provisions, and the enforceable text lives with the inspector of buildings in the city or town where the pool sits. That office also holds the permit file, the plans, and any inspection sign-off for the pool. Those documents are usually obtainable and they are frequently decisive, because a pool built without a permit is a pool nobody ever checked.

This article does not quote the code text, and that is deliberate. Everything in quotation marks on this page was read from the served text of a statute or a court opinion. The code provisions were not reachable from a primary source when this was written, so they are described rather than quoted, and you should get the current text from your building department rather than from any website, including this one.

Massachusetts Does Not Decide These Cases Under Attractive Nuisance

Out-of-state content about pools leans hard on the phrase attractive nuisance, and it is the wrong frame for a Massachusetts case.

The Supreme Judicial Court set out the history in Soule v. Massachusetts Electric Co., 378 Mass. 177 (1979). The doctrine, the court explained, developed originally through a legal fiction about a condition that lured children onto the land to their peril, and by 1934 it had been recognized in the Restatement of Torts with the fiction of attraction removed. What replaced the fiction was a list of conditions centered on foreseeability, not allure.

Massachusetts then took a further step. In 1977 the Legislature enacted G. L. c. 231, sec. 85Q, inserted by St. 1977, c. 259, which is the rule that actually decides a Massachusetts child trespasser case. Read its five elements and you will not find attraction anywhere in them. Nobody has to prove that the pool drew the child in. What has to be proved is that the owner knew or had reason to know that children were likely to trespass in that place.

That is a meaningful difference in a real case. A defense lawyer arguing that a fenced pool behind a locked gate could not have attracted anyone is arguing about an element that is not in the statute. The question the statute asks is whether children were likely to get in there, which is answered with neighborhood facts: prior break-ins, worn paths, kicked-in fence panels, complaints to the property manager, police calls.

The Child Trespasser Statute, Word for Word

Section 85Q is one sentence with five conditions, and all five have to be met:

Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

A swimming pool is an artificial condition. That part is not seriously contested. Every other element is.

Element (a) is about the place, not the pool. Element (b) asks whether this pool posed an unreasonable risk of death or serious bodily harm to children of that age. Element (c) asks whether the children were too young to appreciate the risk, which cuts against a case involving an older child. Element (d) weighs what it would have cost to fix the danger against the risk, which is why the price of a self-closing gate latch or a safety cover matters in litigation. Element (e) asks whether the owner did anything about it.

The Reported Massachusetts Pool Drowning Case, and the Family Lost

Phachansiri v. City of Lowell, 35 Mass. App. Ct. 576 (1993), should be read by anyone who thinks a drowned child is an easy case.

Seven year old John and five year old Joseph got into the city’s South Common pool on September 18, 1988, after the pool had closed for the season. They dug a hole under a ten-foot chain link fence topped with two feet of barbed wire, then climbed a second five-foot fence around the pool itself. The pool had been drained three weeks earlier, but ground water had seeped back in through cracks in the walls, leaving about five feet of murky water. The sloped side was covered in slippery algae. Police found unbroken tracks and concluded the boys had slid in. Teenagers nearby pulled Joseph out. John’s body was not found until much later.

The case went to a jury on special questions tracking sec. 85Q. The jury answered yes to the first: the city knew or had reason to know that children were likely to trespass inside the fence. Then it answered no to the second: there was no condition at the pool involving an unreasonable risk of death or serious harm to children. Judgment entered for the city. The Appeals Court affirmed, and set out the standard plainly:

In order to establish liability for an injury to a trespassing child, the plaintiff must establish that the location where the injury took place contained a condition which posed an unreasonable risk of causing death or serious bodily injury to the child.

The court then described two ways the jury could have gotten there. It could have concluded that water is among the dangers a child old enough to be out alone can be expected to understand. Or it could have concluded that the condition to be judged was the whole pool area including both fences, and that the two fences reduced the risk.

Read that second possibility carefully, because it is the practical lesson of the case. The city’s defense was the barrier. Two fences, one of them ten feet high with barbed wire, was enough for a jury to say the risk was not unreasonable even though a child died. In a case against an owner who put up nothing at all, or whose gate did not latch, the same reasoning runs the other way.

A Child’s Own Carelessness Still Counts Against the Claim

There is a second hard fact that a family deserves to hear early.

In Mathis v. Massachusetts Electric Co., 409 Mass. 256 (1991), a jury found that the defendant had violated its duty toward foreseeable child trespassers under sec. 85Q, and in the same verdict found the injured plaintiff seventy five percent at fault and the defendant twenty five percent. Under the comparative negligence statute, M.G.L. c. 231, sec. 85, a plaintiff whose share is greater than the defendants’ combined share recovers nothing. So the plaintiff won on duty and took home zero.

Section 85 is worth knowing for two reasons. It states the bar. Contributory negligence does not defeat a claim

if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought

with damages reduced in proportion. And it takes away a defense that pool defendants would otherwise lean on, because it says that

The defense of assumption of risk is hereby abolished in all actions hereunder.

That last sentence matters more in water cases than almost anywhere else. A defendant cannot say that a swimmer accepted the risk by getting in, or that a teenager accepted it by diving. The most a defendant can do is argue the swimmer’s share of the fault, which a jury then quantifies. Our page on comparative negligence explains how that math runs and why the fifty percent line is the whole ballgame.

Section 85Q Has Two Gaps, and Soule Fills Them

The statute says his own land and it says land owner. Read literally, that leaves out a property manager who does not own the building, a contractor who left a pool open mid-installation, and a tenant with exclusive control of a yard.

Soule closed that gap by holding that the statute did not occupy the field. The Supreme Judicial Court held that there is

a common law duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers

which is stated in terms of occupiers as well as owners, and which exists alongside sec. 85Q rather than being replaced by it. The court added that if the Legislature had not passed sec. 85Q first, it would probably have adopted the parallel rule in the Restatement (Second) of Torts by decision instead, which is practically the same rule.

The practical effect is that the right defendant in a pool case is often not just the deed holder. It can be the management company that ran the property, the association that maintained the common area, or the contractor whose excavation sat open. Identifying every party with control is early work, and it is one of the things that gets harder as months pass.

If You Were Invited, the Standard Is Much Better

Everything above concerns someone who was not supposed to be there. Most pool injuries do not look like that. They happen to a guest at a barbecue, a child at a friend’s house, a tenant using the pool behind the building, a member at a club.

For all of those, Massachusetts uses a single standard. In Mounsey v. Ellard, 363 Mass. 693 (1973), the Supreme Judicial Court abolished the old split between invitees and licensees, holding that

we no longer follow the common law distinction between licensees and invitees and, instead, create a common duty of reasonable care which the occupier owes to all lawful visitors.

A social guest at a backyard pool is a lawful visitor. So is a tenant. So is a hotel guest. The question in those cases is the ordinary one: did the person in control of the pool act reasonably in all the circumstances. That reaches supervision, depth markings, the condition of the ladder and the deck, whether the water was clear enough to see the bottom, whether a cover was left partly on, whether alcohol was being served, and whether anyone was watching the children.

It is worth saying plainly that reasonable care is not the same as a guarantee. In Cohen v. Suburban Sidney-Hill, Inc., 343 Mass. 217 (1961), an eight year old fell from a high diving board ladder at a country club where, on the plaintiff’s own account, the lifeguards were not supervising the crowd of children on the board. The Supreme Judicial Court held the case failed anyway, because nothing in the opening showed what actually caused him to slip, and the court said the plaintiff was required to show that it was more likely that the injury was occasioned by the negligence of the defendant than by a cause for which the defendant was not liable. Causation is a separate element from carelessness, and water cases lose on it regularly. That is an argument for preserving evidence immediately, not for waiting to see what the insurer says. Our page on premises liability and slip and fall claims covers the general framework these cases run on.

An Adult Who Swims Where He Was Not Allowed

Section 85Q protects children. It does nothing for an adult, and Massachusetts has been asked directly to change that and refused.

Schofield v. Merrill, 386 Mass. 244 (1982), involved a twenty three year old who went with friends to a flooded abandoned quarry in Westford, jumped in from about twenty feet, and struck a submerged ledge. He fractured his thoracic spine and was left with permanent impairment. The landowners had blocked the access road with a steel cable, repaired it every time trespassers cut it, and had trespassers arrested every summer for five years. The parties stipulated that the owners’ conduct was not wilful, wanton and reckless, and the Supreme Judicial Court affirmed judgment against him after restating the rule:

The traditional rule in this Commonwealth is that a trespasser is entitled to no greater duty of care from one with a right of control over land (typically the landowner) than that he refrain from wilful, wanton or reckless disregard for the trespasser’s safety.

The court was asked to abolish that rule for adult trespassers and declined. So an adult who climbs a fence into a closed pool, or swims in a quarry or a reservoir where swimming is prohibited, is generally outside the reach of an ordinary negligence claim. Whether the person actually was a trespasser, rather than someone with implied permission, is often the fight worth having instead.

The Building Code Route, and Why It Usually Is Not There

There is one Massachusetts statute that imposes liability for a code violation without requiring proof of carelessness, and it is worth understanding because it is frequently overstated.

M.G.L. c. 143, sec. 51 provides:

The owner, lessee, mortgagee in possession or occupant, being the party in control, of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building shall comply with the provisions of this chapter and the state building code relative thereto, and such person shall be liable to any person injured for all damages caused by a violation of any of said provisions.

Liable for all damages caused by a violation. No negligence element. That sounds like the answer to a pool case at an apartment complex, and sometimes it is. But the word building in that list has been read narrowly three separate times.

In Commonwealth v. Eakin, 427 Mass. 590 (1998), the Supreme Judicial Court held the Legislature could not have intended building, sitting as it does in a series with the more specific words assembly, theatre, special hall, public hall, factory, workshop and manufacturing establishment, to mean

any and every structure

In Banushi v. Dorfman, 438 Mass. 242 (2002), the court held the section does not reach an owner-occupied two-family home with one rented unit. And in Sheehan v. Weaver, 467 Mass. 734 (2014), the court held that building

is a narrowly defined term that does not encompass within its ambit of strict liability a small-scale residential structure like that occupied by Sheehan, notwithstanding that the structure had some commercial characteristics.

The same decision expanded the section in the other direction. Overruling earlier language, the court concluded that sec. 51

applies to all violations of the State building code

not only violations concerning fire safety. So the section covers more kinds of defect than it used to and fewer kinds of property than plaintiffs often assume.

For a pool case the honest summary is this. Against a homeowner, sec. 51 is almost certainly unavailable. Against a small residential building, the reported decisions say no. Against a hotel, a club, a camp or a genuinely commercial property, the section is worth pleading alongside negligence, because it removes the hardest element of the case. Either way, the code violation itself is still useful evidence in the ordinary negligence claim, which is the route that is always available. The same statutory family sits behind claims for construction site injuries.

Free Public Water Is Its Own Problem

If the pond, beach, reservoir or pool was open to the public and nobody charged for it, a different statute may cut the claim off before any of this matters. M.G.L. c. 21, sec. 17C says a landowner who

lawfully permits the public to use such land for recreational

and other listed purposes

without imposing a charge or fee therefor

is not liable for personal injuries

in the absence of wilful, wanton, or reckless conduct by such person.

It names minors expressly, it applies to cities and towns the same as to private owners, and its list of covered land includes ponds, lakes and other bodies of water.

That is a large obstacle and it has real edges, particularly around what any fee actually bought. It is covered in depth on our page about being hurt in a park or on free land, and it should be checked at the very start of any drowning case involving public water, because it changes what has to be proved.

Claims Against a City or Town Have Extra Rules

Many pools are municipal. A claim against a city, a town, a housing authority or a state agency runs under the Massachusetts Tort Claims Act, which adds a written presentment requirement with a short deadline of its own, a damages cap, and several immunities including one for discretionary policy decisions. Barnett v. City of Lynn, 433 Mass. 662 (2001), shows how far that discretionary immunity reaches: the city’s decision not to erect a barrier at a sledding hazard was held to be a protected policy judgment about how to spend limited resources.

Missing the presentment deadline ends a municipal claim regardless of how strong the facts are. The rules are set out on our page about suing the government in Massachusetts, and that page should be read the same week the injury happens, not later.

When the Drowning Was Fatal

A death changes which statute the claim is brought under and who is allowed to bring it. Massachusetts wrongful death claims are made by the personal representative of the estate on behalf of statutory beneficiaries, and the categories of recoverable loss are set by statute rather than by ordinary tort principles. The deadline is its own, and it is not the same clock as a personal injury claim.

Our pages on wrongful death claims and on Massachusetts deadlines for every kind of claim set both out. If a child died, a parent may also have a claim in their own right for the emotional harm of witnessing it, which is covered on our page about negligent infliction of emotional distress. A spouse’s separate claim for the loss of the relationship is covered on our page about loss of consortium.

What to Do in the First Week

Pool cases are evidence cases, and pool evidence disappears faster than almost any other kind. Water gets drained. Fences get fixed. Gates get new latches within days, and the repair itself is often the first thing that happens after a serious injury.

Photograph the barrier before anything is touched: the full fence line, the gate, the latch with something in frame for scale, every gap, and the pool deck and water. Measure the latch height and the widest gap. Note whether a life ring and a rescue hook were present, because at a public or semipublic pool their absence is a statutory violation on its own.

Request the municipal file. For a public or semipublic pool that includes the annual inspection required by sec. 206. For any pool it includes the building permit, the plans and any sign-off, and the absence of a permit is itself significant.

Identify everyone with control, not just the owner. Management companies, condominium associations, camps, contractors and maintenance vendors are frequently separate defendants with separate insurance.

Get the names of witnesses on the day. Who pulled the person out, who called for help, who had complained about the gate before. In Phachansiri the police observations of the tracks in the algae were part of the record. Those observations exist for hours, not weeks.

And get medical documentation of everything, including what the doctors call a nonfatal drowning. A survivor pulled from water can have brain injury that presents late, and the medical record made in the first days is what a claim is later measured against. Serious cases of that kind are discussed on our pages about traumatic brain injury claims and what an injury claim is worth. Injuries from a fall or a dive into shallow water can also be spinal cord injuries, which are valued differently again.

If a Pool Injured Someone in Your Family

The law above is not encouraging in every direction, and it should not be dressed up. Massachusetts has a detailed enclosure statute that does not reach most private pools, a child trespasser statute with five elements that all have to be met, a comparative negligence rule that has already sent one child trespasser home with nothing, and a reported pool drowning case that the family lost.

It is also true that the cases that win are usually decided by details that vanish quickly. A gate that never latched. An inspection report nobody acted on. A pool left uncovered past the seven day mark. A management company that had been told twice. None of that survives a few months of waiting.

Jim Glaser Law handles serious injury and wrongful death claims across Massachusetts, and there is no charge to be told honestly whether a case is there. Our page on what a personal injury lawyer costs explains the fee structure. The number is (617) JIM-WINS, the line is answered 24 hours a day, and the first telephone consultation is free.

Frequently Asked Questions

Q: Does Massachusetts law require a fence around a private backyard swimming pool?

A: Not by statute. M.G.L. c. 140, sec. 206 is the only pool enclosure law in the Massachusetts General Laws, and it reaches only public and semipublic outdoor inground pools, which the section defines as pools at a hotel, motel, trailer court, apartment house, country club, youth club, school, camp or similar establishment, plus pools maintained by a group for members and guests. A full-text search of the General Laws for the phrase swimming pool returns only three sections, and the other two concern lifeguard age and public accommodation discrimination. The barrier requirements that apply to a residential pool come from the state building code, which is created under M.G.L. c. 143, sec. 94 and enforced by the inspector of buildings in your city or town. So the requirement is real, it is just not in the General Laws, and the enforceable text is held by your local building department.

Q: What exactly does M.G.L. c. 140, sec. 206 require?

A: A six-foot fence firmly secured at ground level, except that a board or stockade fence may be five feet, and anything over five feet must be chain link. The enclosure including gates must not be less than six feet above the ground. Any gate must be self-latching with the latch placed four feet above the ground or otherwise made inaccessible from outside to children up to eight years of age. No opening other than a gate may be wider than three inches at any point. The pool must have at least one life ring and a rescue hook. An outdoor inground pool open to the public, other than one fed by a spring or stream, must be drained or covered within seven days of closing. And the pool must be inspected annually by the local inspector of buildings. The criminal penalty is a fine of not more than one thousand dollars.

Q: My child got into a neighbor’s pool. Can we sue even though he was trespassing?

A: Possibly, under M.G.L. c. 231, sec. 85Q. It makes a person who maintains an artificial condition on his own land liable for physical harm to trespassing children when five conditions are all met: the owner knew or had reason to know children were likely to trespass there, the owner knew or had reason to know the condition would involve an unreasonable risk of death or serious bodily harm to such children, the children because of their youth did not discover the condition or realize the risk, the burden of eliminating the danger was slight compared to the risk, and the owner failed to exercise reasonable care. A pool is an artificial condition, so the fight is over the other elements, especially whether children were likely to get in and whether your child was old enough to appreciate the danger of water.

Q: Does Massachusetts recognize the attractive nuisance doctrine?

A: Not by that name and not with that element. In Soule v. Massachusetts Electric Co., 378 Mass. 177 (1979), the Supreme Judicial Court described the doctrine as having developed through a legal fiction about a condition that lured children onto land, and noted that the Restatement had dropped the attraction element back in 1934. Massachusetts decides these cases under M.G.L. c. 231, sec. 85Q, which never asks whether the pool attracted the child. What it asks is whether the owner knew or had reason to know that children were likely to trespass in that place. That is a foreseeability question answered with neighborhood facts, not a question about how tempting the pool was.

Q: Has anyone actually won a pool drowning case against a city in Massachusetts?

A: The one reported Massachusetts pool drowning decision we could locate went the other way. In Phachansiri v. City of Lowell, 35 Mass. App. Ct. 576 (1993), a seven year old drowned and a five year old was injured in a closed city pool they reached by digging under a ten-foot fence topped with barbed wire and climbing a second five-foot fence. The jury found the city knew children were likely to trespass, but also found that the pool was not a condition involving an unreasonable risk of death or serious harm to children, and judgment entered for the city. The Appeals Court affirmed, noting the jury could have concluded that the two fences reduced the risk. That result cuts the other way where an owner put up no barrier at all or let a gate stop latching.

Q: Can a defendant argue my teenager assumed the risk by diving in?

A: No. M.G.L. c. 231, sec. 85 states that the defense of assumption of risk is abolished in all actions under that section. What a defendant can do instead is argue comparative negligence, meaning your teenager’s own share of the fault. That matters because the same statute bars recovery entirely if the injured person’s negligence was greater than the total negligence attributable to the defendants, and reduces damages proportionally below that line. In Mathis v. Massachusetts Electric Co., 409 Mass. 256 (1991), a jury found a child trespasser seventy five percent at fault and the landowner twenty five percent, and the child recovered nothing despite winning on duty.

Q: I was a guest at a friend’s pool party. What standard applies?

A: The ordinary one. In Mounsey v. Ellard, 363 Mass. 693 (1973), the Supreme Judicial Court abolished the old distinction between invitees and licensees and created a common duty of reasonable care owed to all lawful visitors. A social guest, a tenant, a hotel guest and a club member are all lawful visitors. The question is whether the person in control of the pool acted reasonably in all the circumstances, which reaches supervision, the condition of the deck and ladder, water clarity, depth markings, whether alcohol was involved and whether anyone was watching the children.

Q: An adult friend drowned in a quarry with no swimming signs. Is there a claim?

A: Usually not for ordinary negligence. Massachusetts still applies the traditional rule that a trespasser is owed nothing more than that the landowner refrain from wilful, wanton or reckless disregard for the trespasser’s safety. In Schofield v. Merrill, 386 Mass. 244 (1982), a twenty three year old was permanently injured jumping into a flooded quarry, and the Supreme Judicial Court declined to abolish that rule for adult trespassers. The claim that is sometimes available in these cases is not negligence but recklessness, or an argument that the person was not a trespasser at all because entry had been tolerated for years.

Q: Can I hold an apartment complex strictly liable for a building code violation at its pool?

A: Sometimes, and it depends heavily on the property. M.G.L. c. 143, sec. 51 makes the party in control of a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building liable to any person injured for all damages caused by a violation of the state building code, with no negligence element. But the courts have read the word building narrowly. It does not reach a single-family house, it does not reach an owner-occupied two-family with one rented unit, and in Sheehan v. Weaver, 467 Mass. 734 (2014) it did not reach a small-scale residential structure even though it had commercial characteristics. Sheehan did expand the statute in another direction by holding it applies to all state building code violations rather than fire safety alone.

Q: The pool was at a town beach or a free public pool. Does that change anything?

A: Yes, and usually against the claim. M.G.L. c. 21, sec. 17C provides that a landowner who lawfully permits the public to use land for recreational purposes without imposing a charge or fee is not liable for personal injuries in the absence of wilful, wanton or reckless conduct. It expressly includes minors, it covers ponds, lakes and other bodies of water, and it applies to cities and towns the same as to private owners. The most productive question is what any fee actually bought, since the immunity turns on charging nothing for the use the injured person was making of the land. Our recreational use page goes through the exceptions in detail.

Q: How long do I have to bring a Massachusetts pool injury claim?

A: Three years is the general personal injury deadline, but that is the wrong number to rely on in a pool case. If the pool belonged to a city, a town, a housing authority or a state agency, the Massachusetts Tort Claims Act requires written presentment on a much shorter clock, and missing it ends the claim. A death is brought under the wrongful death statute with its own rules. A claim on behalf of an injured minor may be treated differently from the parents’ own claims. Because pool cases so often involve a municipality, the deadline should be pinned down in the first days rather than assumed.

Q: What evidence matters most after a pool injury?

A: The barrier, and it usually gets repaired within days. Photograph the whole fence line, the gate, the latch with something in the frame for scale, and every gap, and measure the latch height and the widest opening. Record whether a life ring and a rescue hook were present, since at a public or semipublic pool their absence violates M.G.L. c. 140, sec. 206 on its own. Request the municipal file, including the annual sec. 206 inspection for a public or semipublic pool and the building permit and plans for any pool. Get the names of the people who were there, including whoever pulled the person out. Those observations exist for hours, not weeks.

Q: Someone survived but was under water for several minutes. Is that a smaller case?

A: Not necessarily, and it is often larger. A nonfatal drowning can leave permanent brain injury from oxygen deprivation that presents over the days and weeks afterward rather than at the scene, and the value of such a claim turns on lifetime care needs rather than on the emergency room bill. Get complete medical documentation early, including neurological evaluation, because the record made in the first days is what the claim is later measured against.

Q: Who besides the pool owner can be responsible?

A: More parties than most families expect. Section 85Q is written in terms of a land owner, but in Soule the Supreme Judicial Court recognized a parallel common law duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers, which reaches whoever actually had control. In practice that can mean a property management company, a condominium or homeowners association, a camp or club operator, a pool service or maintenance contractor, or a builder who left an excavation open. Each may carry separate insurance, and identifying all of them early is one of the things that gets harder as time passes.

Q: Does a boat or jet ski drowning follow the same rules?

A: No. A drowning on the water runs on a different chapter with no personal injury protection layer and no injury threshold, and the boating accident report is not admissible in evidence the way a crash report would be. That is covered separately on our page about boating and jet ski injuries.