From the Rav’s Desk: Making a safety fence around one’s pool

• Question: [Wednesday, 11^th Teves 5783]

Must a pool have a fence surrounding it? We own an outdoor pool in our summer home which we also use to rent out as an air B&B and it does not have a fence surrounding it. While we specifically inform all of our guests that the pool does not have a fence, so they need to be aware of their children, recently a Frum guest told us that according to Halacha we are required to build a fence. Is this accurate?

Answer:              

Yes, it is accurate that you must build a security fence surrounding it. It is an absolute Torah obligation for any person who owns and uses an outdoor ground pool to build a fence around the pool to prevent people, especially children, from accidentally falling in. Alternatively, one can install a security cover onto the pool. No blessing is to be recited upon placing this fence or cover. An indoor pool on the other hand does not require a fence so long as it is able to be properly closed and is left constantly locked unless it is in use. An over the ground pool which is at least 1.2 meters high is not Halachically obligated in having a fence surrounding it or to have a cover placed on top of it. Nonetheless, in a home with small children, care must be taken to make sure that the children do not have access to the pool. Furthermore, the CPSC recommends surrounding all pool areas with fencing and gates including aboveground pools, in order to prevent unnecessary drownings of children r”l. In some countries and states, this may be legally required, and one can be fined and potentially sued for not having proper gaiting and fencing around the pool.

Explanation: The Poskim rule that the negative command against causing blood to spill in one’s home applies both for roofs and for anything else that poses a danger, and that a person can stumble on and die. Thus, the Poskim rule that one who has a pit or well in his yard or home, is obligated to make a barrier surrounding it, or alternatively to make a cover for it, in order so one not fall in in it and die. The barrier must be a height of 10 handbreadths. This obligation applies whether the pit is filled with water or not. Based on this, it is understood that it is an absolute biblical obligation included in the negative command, for any person who owns a pool to build a ten Tefach fence around the pool to prevent people from accidentally falling in. [Seemingly, this applies even if one lives alone without children.] Alternatively, one can install a pool cover in the pool. Now, although certain Melaktim of today have written various leniencies regarding this matter, claiming that since a pool is apparent to everyone it does not need a fence. In my opinion, this ruling is not accurate. Aside from the fact that the statistics speak for themselves regarding the amount of pool drownings and deaths that occur each year, which are exacerbated when there is no fence around the pool, there’s also no room in Halacha to negate its requirement. The wording of the law plainly reads that a pit with water even in a private courtyard must be fenced. It does not make any differentiation between size or a public domain versus a private domain. If their opinion were correct according to Halacha, then the Poskim should’ve made this clear and differentiated between a small versus large pit and a public versus private domain. The fact that they did not differentiate in this matter and explicitly wrote that it applies to a courtyard, is the biggest proof necessary to show that they did not hold of their logic of differentiation. Furthermore, even those who write of Halachic leniency, agree that in practicality the pool should be fenced, and that so is the widespread custom. Therefore, God forbid, no leniency should be learned from this and every pool must be fenced and well-guarded to prevent the needless drownings and deaths that happen every year by unguarded pools, may God save us. All this is regarding a ground pool, however, by an aboveground pool, the pool itself serves as its own barrier, and is not considered a pit which requires fencing under the above law.

All this is regarding Jewish law, regarding civil law, indeed many states have statutes which require barriers and fencing to be made around one’s pool and lack of doing so is considered a misdemeanor, and can make one vulnerable to legal liability God forbid if an accident occurs. One such example is the Florida “Residential Swimming Pool Safety Act”, which requires Florida homeowners to take certain safety precautions with swimming pools, such as erecting fences and other safety barriers. The Florida Legislature created the Residential Swimming Pool Safety Act to reduce the number of drowning fatalities in the state. As of 2009, when the Act became law, drowning was the leading cause of accidental death, including many age groups of children. The following are the details of this statute:

(1) A residential swimming pool barrier must have all of the following characteristics:

(a) The barrier must be at least 4 feet high on the outside.

(b) The barrier may not have any gaps, openings, indentations, protrusions, or structural components that could allow a young child to crawl under, squeeze through, or climb over the barrier.

(c) The barrier must be placed around the perimeter of the pool and must be separate from any fence, wall, or other enclosure surrounding the yard unless the fence, wall, or other enclosure or portion thereof is situated on the perimeter of the pool, is being used as part of the barrier, and meets the barrier requirements of this section.

(d) The barrier must be placed sufficiently away from the water’s edge to prevent a young child or medically frail elderly person who may have managed to penetrate the barrier from immediately falling into the water.

(2) The structure of an aboveground swimming pool may be used as its barrier or the barrier for such a pool may be mounted on top of its structure; however, such structure or separately mounted barrier must meet all barrier requirements of this section. In addition, any ladder or steps that are the means of access to an aboveground pool must be capable of being secured, locked, or removed to prevent access or must be surrounded by a barrier that meets the requirements of this section.

(3) Gates that provide access to swimming pools must open outward away from the pool and be self-closing and equipped with a self-latching locking device, the release mechanism of which must be located on the pool side of the gate and so placed that it cannot be reached by a young child over the top or through any opening or gap.

(4) A wall of a dwelling may serve as part of the barrier if it does not contain any door or window that opens to provide access to the swimming pool.

(5) A barrier may not be located in a way that allows any permanent structure, equipment, or similar object to be used for climbing the barrier.

History.—s. 1, ch. 2000-143.

Sources: See Shut Baruch Omer 152 that a pool requires a fence; Sefer Veasisa Meakah 5:9 footnote 18 based on his understanding of Chazon Ish C.M. Likkutim 18 that only an inconspicuous pit requires a fence, while a large pit which is viewable by all does not, however, see above that we negated his understanding; See regarding the obligation to fence a pit whether in a public or private domain and whether it contains water or not: Admur Shemiras Guf Vinefesh Halacha 3; Michaber C.M. 427:7; Rambam Rotzeiach 11:4; Sifri Ki Seitzei; Sefer Shemiras Haguf Vihanefesh [Lerner] 218:2; See regarding whether a blessing should be recited: Imreiy Yaakov 10:10; Shemiras Hanefesh Kehilchasa 1:3; Yes: Minchas Chinuch Mitzvah 546; Maaseh Rav 100; Devar Avraham 1:37; Toafas Reim 234; Shemiras Hanefesh Kehilchasa 1:3; No: Chayeh Adam 15:24 and that so is the opinion of the Rambam and Shulchan Aruch, brought in Pischeiy Teshuvah C.M. 427:1; Haemek Sheila Sheilasa 145:17; Chazon Ish Likkutim 18:9; Rav Chaim Kanievsky in Miseches Mezuzah Hilchos Meakah Shaar Hatziyon 55; Aruch Hamishpat p. 28; Viasisa Miakah 3:1 ; See regarding Florida law: https://www.flsenate.gov/Laws/Statutes/2011/0515.29