Pond Boss Forums INTRO Questions & Observations Life saving equipment; legal trap?

I'm spinning this thread off a post that Ryan Freeze just made on the "Pond Amenities" thread. He noted life saving equipment at the pond-side.
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Who in their right mind could argue this logic....right? It sure makes sense to me, particularly if you have family and friends in or near the water.
But, what if you don't. I mean, what if you're an absentee pondmeister. If you have life-saving equipment clearly visible and available at the pondside, and an univited guest decides to go swimming in your pond and a deadly catastrophe occurs to them, has the pond owner unwittingly provided an unsigned swimming invitation? Does properly displayed live-saving equipment leave a litigation loophole that might come back to bite the owner in court?

Good question. I'm an absentee owner until we move in 3 years. I put up a life ring and rope last year. It's hanging on a 4x4 post next to the dock...and 3 feet away is another 4x4 post with a "No Trespassing" sign and a "No swimming, boating or fishing" sign. There are 2 other posts with signs on them around the pond as well. I still worry sometimes.

That's why you have it hanging under the pond rules.

Ponds are treated different than swimming pools, laws are different but it probably comes down to your particular state.

Every state is very different... In VA the land owner has a lot of protections, other states are more liberal and don't protect the land owner as much. I would personally put a posted sign at least every 30 ft around my pond with No Trespassing, etc. The life ring would be a great idea as RobA said, right underneath and Pond Rules sign. I would photograph all those signs and document where each one is located on and around your pond. It all may seem like a pain now, but when you get sued, you'll be glad you did this. Check with your local game warden or police officer. Most are more then willing to give you free professional advise for your situation... Each state has different laws about trespass, what the definition is and what teh penalties are. A pond that is properly posted, with a life ring left for the safety of those who are legally permitted to use to pond would in my opinion be less liability in a civil case.

Very nice Rob!

RobA,dont mind me,Im not swimming,fishing,or boating.Im just lurking.

Rob,

Nice looking pier. Did you just do this? Is there a thread on it someplace? I'd love to hear some details on it, and what else you have planned for it. Or will there be a railing, bench or walkway? What did you use for the decking and skirting? I can't tell if it's freshly painted, or you used a composite of some kind.

Thanks,
Eddie

you guys are really making me scratch my head.

just fill up those holes and plant soybeans. you wont have to worry about trespassers, muskrats or lawyers.

build it and they will come

all the life comes to the water

i am going to pee in your pond, start worrying

and if you come by mine, i am telling you i do alot of target practice (just ask the heron) and there are some pretty big beaver traps (drowner sets). but really what are you guys smoking to be so paranoid

Pond, dock and amenities look great, RobA. Two ways to go about it, play dumb, or try to outsmart the wheels of justice. Both will probably cost you in certain cirdumstances. Playing dumb is cheaper, but I will be putting up an electric fence. Building benches and purchasing life rings for the 4th with 7 little ones coming. Will remove the life rings when invited company is not there.

lawyers...

Thanks for the compliments. I had the dock put in right after the pond renovation was done and well before it filled up - almost 2 years ago. I don't think I posted that project here but did post some pictures of it somewhere along the way. I thought about building it myself but quickly decided against it since my time is limited and I don't live at the pond site yet. I wound up hiring an Amish deck builder who had it done in 1 day. The decking and skirting is all ProCell (I didn't want to deal with maintenance) and the rest is pressure treated. I don't plan on adding any railings on it but am seriously considering adding a rectangular gazebo at the end of the walkway. I may try to tackle that myself.

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.

Momma. get m' gun!

i was looking for the thread and bumped to top, thankyou bill b, rainman, i am peeing in your pond first

what about all the ponds in town now, commercial and suburban, unfenced, no signs, no fences, come on, the bigwigs in town are all about ponds, they dont appear to be afraid of liability, hundreds and hundreds and hundreds of examples of this

if we are going to be paranoid, then put pond land in corporation, thats probly what the bigwigs in town are doing

and my pond is very near road neighbors, no fence, no sign, so i am more vulnerable than most

shooting target practice is not shooting trespassers, and i have never done that, only point it out to people that ask to come by

I'm weighing in on BillB's side on this. The risk of the normal rural pond owner (absentee or otherwise) being successfully sued by an injured trespasser is very, very small. IMO (as another lawyer), you have a far better chance of being sued by the people you actually invite on the property--particularly people doing work or social guests. The argument is that tf you invite the kids to swim in the pool, maybe you should disclose "hazards" such as the very steep bank you designed to discourage algae and herons. . . .

For most people, I wouldn't worry about it. For those very worried about these issues (perhaps because of high personal net worth or a larger than normal perceived risk), a relatively inexpensive option in many states is to set up an LLC to own the land containing the pond. This provides some degree of additional protection.

MoMule and BillB;

Great advice on the liability policy and also LLC formation. Thank you for providing us with your professional take on the situation. I am an absentee land owner, but only 10 minute drive away, but I am concerned because my land is only 5 min from a 250,000 population center...there will likely be trespassers.

I am considering opening an LLC as it can be set up for a few hundred dollars - and you can also [if you have a creative acct like mine] write off some expenses of the land thru said LLC. I am going to be raising fish, and will be writing off the cost of my electricity, pellets, subsequent stockings, the rock I placed for structure, dock, nets, aeration system, gates, more rock, etc.

Thanks again for the advice...I found it very helpful.

Is it just me or does the fact that a trespasser can even sue to begin with, completely disturb the heck out of you?

I looked into an LLC when we first purchased our parcel. The legal requirements to meet the criteria required to operate under an LLC were no simple task. I cannot remember the specific details, but I recall one of the larger stumbling blocks was the need to include other partners as legal owners of the parcel. There were other points that made it virtually impossible for a husband/wife team to operate as an LLC. Was I given bad info...?

I got a 55 gallon drum of Texas whupa## next to my pond that says "tresspassers,help yourself",is THAT O.K.?

CJ:

It's not only you.

Most of my wealthy clients have their ranches/land in a separate legal entity whether it be a LLC or a corporation. I have one client who has his house in town in a separate LLC! My understanding that they do it for liability, tax and estate planning purposes. I am not an expert on formation of LLC's but I do know you have to have a managing member (like a general partner of a partnership)and members. Most of the structures I have seen have a Managing Member (usually another LLC) who owns 1% of the LLC and them the members who own 99%. (Another reason people hate lawyers is that they think up structures like this. so this is maybe why you were told there needs to be two parties. A LLC looks more like a limited partnership than a corporation. Usually the LLC ownership rolls up to a family trust. I have found that the wealthier my clients are the less they own in their own name.

I am just a salaryman breaking rocks and selling hours so I don't know a lot about these structures. I do know that they will not protect the owners if the structure is not respected as a separate entity--a concept called piercing the corporate veil and alter ego--but that is a new issue with about five or six issues and sub-issues. (and on it goes).

It is usually cheaper for us mortals to protect ourselves with insurance rather than fancy legal structures where you have to pay your lawyer to set it up. This is true unless your tax accountant can show you some tax advantages to offset the cost of creating and maintaining the structure.

Brettski: My business in Illinois is an LLC and I am the sole (only) member. To me the biggest drawback to a LLC in this state is the $400.00 annual license. It cost less than that in legal fees to set it up. IMHO even if your land is in a LLC your still need that $1M or more in liabiilty insurance. Plus, if an accident occurs the injured could still sue the LLC and own all of it's assets (Which is one of the things we are trying to protect).

Bing

Thanks Bing.
Actually, the real reason I wanted to consider the LLC was to provide a way to write off the improvements.
Yep, I carry a PLUP, too.