There is little on this forum that I am actually qualified to comment on, but because I am a lawyer and thus consider myself qualified on all things legal
, I will venture my two cents worth. Just remember free legal advice is worth what you pay for it so here goes:
The question posed is an interesting one and implicates a lot of issues. (see this is what they teach you in law school--spot issues--charge by the hour to answer them.) The problem with a definitive answer (like you were going to get a definitive answer from a lawyer) is that the law with regard to trespass, landowners rights and liability are all creatures of state law and thus you have 50 potential answers and hundreds of nuances. The laws of trespass vary from state to state, although all states prohibit unauthorized entry onto private property in some form or the other. Whether it is criminal trespass or civil trespass will vary by the laws and the particular facts. But this question really goes to responsibility of the land owner for injuries to someone who is on their land.
To answer this question you have to determine the status of the person injured. Were they a trespasser, an invited guest, a family member, a child, a government employee or a repair person. The status of the person generally governs the degree of care the land owner owes to the injured persons. Trespassers, as they should be, are generally owed the least degree of care, and in most states, a trespasser cannot recover damages unless the land owner was grossly negligent or injured the person intentionally. (Although here in Texas you can use deadly force against a trespasser under certain circumstances). In any event, the status of the person, and the standard of care owed, will vary based on state statutes and the interpretation of those statutes by the courts of that state. Many states have enacted laws to protect land owners from suits and this is especially so if it is recreational land open or semi-open to the public. These are generally called Recreational Land Use Laws and there is one in all 50 states.
One other issue needs to be mentioned and that is the concept of "attractive nuisance." This generally applies to conditions on the land that entice people to go on the land and result in injuries. A pond is a good example of an attractive nuisance. Generally this concept is limited to injuries to children or where few if any steps were taken to keep the public out and protect against the harm. Again, there is no simple answer here. Which leads to the question of whether you increase your chances of liability by putting safety features, such as a life ring around your pond.
My thought would be no. Whether a person is an invited guest or a trespasser, there is always a risk that someone will fall in a pond. Its an obvious risk that anyone would recognize. Putting a life ring at the pond minimizes this known risk. Anything you do on your property to minimize know risks of injury will ultimately inure to your benefit. The highest standard typically applicable to a land owner is a negligence standard meaning simply that the land owner acted as a reasonably prudent land owner would under the same or similar circumstances. Was it reasonable to place a life preserver at a point where someone could fall in the water? Probably so. Some will argue that placing the life preserver at the pond means the land owner knows that there is a risk of people falling into his pond and drowning. This would be used to prove that the land owner was aware of the risk. Well duh! A land owner would never win on this point anyway.
Here is how the questioning would go:
Wiley Lawyer: Did you realize that a pond was on your property.
Pondmeister: Why yes, I am a subscriber to Pond Boss Magazine since it was black and white.
Wiley Lawyer: Is there water in your pond?
Pondmeister: Of course. A soothing pea green nutrient rich water with a Sechi disk reading of 3 feet on average.
Wiley Lawyer: Do you know that people can drown in water.
Pondmeister: Of course. I am a former Boy Scout you know.
Wiley Lawyer: So you knew people could drown in your pond.
Pondmeister: Yes, but…
Wiley Lawyer: But even though you knew people were at risk of drowning in your pond, you failed to take any precautions?
Pondmeister: I posted a sign that said no swimming.
Wiley Lawyer: How was the sign suppose to save my client Bubba when he fell into your dangerous pond? Did it teach him how to swim?
Pondmeister: Well no.
Wiley Lawyer: How much would a life ring have cost?
Pondmeister: Oh about $30 bucks.
Wiley Lawyer: So can you look at Ms. Bubba and Bubba Jr. and Bubba III and Bubba Bubba and tell them that their husband and daddy’s life was not worth $30?
Pondmeister: Well no that is not what I meant …..
You get the picture. So the fact that you put up a life ring will not result in more liability that you already would be facing. And while we are at it, why put the sign up to say no swimming if you did not expect people to come upon your pond and want to swim?
(It is more likely that some lawyer will argue that all us readers of the Pond Boss forum are now on notice that putting a life ring at your pond is a good idea to prevent injuries and failure to do so would be negligent. This is why people hate lawyers
.).
As with most things in life, a little common sense goes a long way. My experience with juries is that even though there may be one or two outliers on there, the reason we have 12 jurors is the collective common sense of them all usually get to the right result. (There is also an article on-line by a couple of Texas A&M professors that studied the issue of land owner liability and determined that the issue is way over blown considering the number of land owners in the United States compared to the number of injuries and claims against land owners. see Rural landowner liability for recreational injuries: Myths, perceptions, and realities B.A. Wright, R.A. Kaiser, and S. Nicholls).
So the best way to protect your assets against claims from those hurt on your property are pretty straight forward:
1. Clearly post your land in accordance with your state’s law to insure that trespassers are treated as trespassers. Generally the alleged trespasser has to have notice of the fact he or she is on private property. Most state laws will presume notice if a certain number of signs are put up at specified spacing.
2. Fence your land. Put up gates to entry points and lock them when you are away. You want to take reasonable steps to minimize entry onto your land when you are not there.
3. To the extent reasonable, remove or minimize known hazards. You don’t want you, your family or your friends injured either, do you?
4. Warn against really dangerous possibly unknown hazards. If the road entering your property abruptly plunges into a 500 foot canyon, a little heads up is probably called for. Do you need to post speed limit signs on your dirt road? Of course not. If the bridge across your creek is about to fall in, fix it or post a sign telling people not to drive four wheelers over it. On the steps up to your cabin, do you need to post a sign that says Be careful. You could fall and hurt yourself?” No. Common sense. Now I know that the readers of this forum will come up with a thousand hypotheticals that will push the envelope give me tired head.
Resist the urge.
5. Don’t buy one of those cute signs that says “Trespassers will be shot. Survivors will be shot again.” We had a tragic incident down here in Texas where a child was shot by a land owner who though he was trespassing. The land owner had one of these signs. The DA will feature the sign prominently at his criminal trial.
6. Buy liability insurance. This is what insurance is for—this is why you have a homeowners policy and an automobile policy. The liability portions of these policies protect you from LIABILITY. I have coverage on my 65 acres for about $300 per year for up to a $1M through a forest landowner’s association.
Now for the disclaimers: The opinions expressed in this post are my personal opinions and do not reflect the opinions of my firm or my partners who would be terrified to know I am dispensing my views on the internet, especially as to legal matters. And while we are at it, this post is not intended as legal advice and for such you should certainly support your local lawyers by seeking competent legal advice from a qualified professional—not from some yahoo on the internet. I am a Texas lawyer and what I know, if anything is based on my practice in Texas and I have not got much of a clue about the law in other states. I am not even sure I get Texas law right. Finally, for all you folks in Texas, DO NOT SHOOT ANY TRESPASSERS ON YOUR LAND BASED ON WHAT YOU READ IN THIS POST. Surely you are smarter than that.
