Living in Louisiana means a warm or temperate climate for most of the year. Louisianans find numerous ways to deal with the heat during summer, including the use of swimming pools. Although swimming pools are a great way to cool off, they also can be incredibly dangerous if not taken care of properly. Without suitable safety precautions, pool owners may attract unwanted guests and be liable for certain accidents on their property.
Swimming Pools by the Numbers
Property owners with swimming pools should understand the basic facts behind swimming pool ownership. According to data collected by the U.S. Centers for Disease Control,
- Swimming is the most popular activity for children between the ages of 7-17 in the United States.
- 12.1% of all pool inspections conducted in 2008 resulted in pool closure due to safety or public health hazards.
- Swimming pools accounted for approximately 60% of fatal deaths for children between the ages of 0-4.
Premises Liability for Residential Property Owners
Before discussing the theory of attractive nuisance, we must first address the concept of premises liability for Louisiana property owners. Premises liability is a concept found under the umbrella of tort (personal injury) law. Personal injury law allows parties to an accident to determine fault for the accident and assign monetary damages to the injured party. In most cases, premises liability cases hinge on whether a property owner acted negligently in their duty to protect visitors from a dangerous condition.
Premises liability states that a property owner is liable for personal injuries on the owner’s property. Because owners retain a robust degree of rights in their property, the law asserts that the right to private property also creates a responsibility to protect visitors. Types of premises liability can include anything from a grocery store patron slipping and falling on a wet floor near the produce section, a general contractor falling into a pit while working on someone’s property, or a hunter stepping on a makeshift trap while tracking an animal. The hypothetical scenarios are endless.
Under the theory of premises liability, an injured party must prove the following:
- The property’s condition was dangerous during the injured party’s visit to the property.
- The property owner knew of the dangerous or should have known the dangerous condition at the time of the injury.
- Exposure to the dangerous condition caused the injured party’s injury.
- The injured party suffered an injury causing monetary damages.
Attractive Nuisance
The theory of attractive nuisance is a subcategory of premises liability. Under a common law claim of attractive nuisance, a plaintiff (the injured party making a claim) argues that the defendant (the property owner being sued) failed to protect potential trespassers from entering the property and being injured.
Attractive nuisance often occurs when children trespass on a property with an exciting or engaging condition, like a pool or trampoline, that is attractive to the trespasser. To prove an attractive nuisance case, the plaintiff must show:
- The property contained a hazardous condition that could have caused an injury upon exposure to the condition.
- The condition was reasonably attractive to trespassers, specifically children.
- At the time of the injury, the child could not assess the severity of the danger of the condition.
- The dangerous condition was located in an area of the property accessible to trespassers.
- The property owner could have reasonably prevented the trespasser from entering the area in a dangerous condition.
Attractive Nuisance: Swimming Pools
Swimming pools pose one of the most common and dangerous forms of an attractive nuisance across the United States, including Louisiana. Property owners should not be fearful of installing a residential swimming pool for fear of harming neighborhood children. However, property owners should be aware of the risks associated with pool installation and how to protect themselves from liability.
Why are Swimming Pools an Attractive Nuisance?
Swimming pools are an attractive nuisance because they are generally considered an enjoyable form of recreation. Imagine jumping into a bright blue swimming pool on a 95-degree day, which sounds pretty exciting to many. Because most residential swimming pools are not designed for athletic training or aquatic rehabilitation, a reasonable child would associate the swimming pool as a recreational activity without being mindful of the risks or personal boundaries associated with trespassing illegally onto a property.
Are Residential Swimming Pool Owners Liable if a Trespassing Child is Harmed?
In many circumstances, yes. Although property owners enjoy vast rights and protections, the law also requires them to exercise reasonable care when maintaining their property. Virtually all property owners experience some form of trespass, in one sense or another, throughout their time as the principal property owner. Some trespassers will be liable for their injuries based on the circumstances of their intrusion onto private property and how they are injured. However, the law views young children differently. Because children cannot think critically and reason the way adults can, the law provides them additional protections. Specifically, property owners with attractive features on their property, like swimming pools, are burdened with a reasonable duty of care to prevent children from trespassing—creating liability for misuse of the feature.
How can Property Owners Safeguard Their Swimming Pools?
Property owners with residential swimming pools should not overreact and demolish their existing pools for fear of any potential legal or financial liability. Instead, swimming pool owners should be aware of potential harm by being mindful of the surrounding neighbors and the layout of their property.
Owners with fewer neighbors or expansive properties may not have to take as many steps to avoid creating an attractive nuisance. However, pool owners in densely packed communities with street-accessible pools should consider installing additional measures to avoid attracting trespassers, especially children. Property owners should take the following steps to avoid accidents:
- Install fencing around the perimeter of the pool.
- Lock all exterior gates and doors providing access to the pool.
- Cover the pool during prolonged periods where it is not in use.
- Maintain adequate life protection around the pool, including throw ropes, life vests, and safety floats.
- Install motion sensors and floodlights around the pool to deter trespassers.
- Secure all pool toys away from potential trespassers.
- Install warning signs around the pool’s perimeter.
- Speak with your insurance adjustor about purchasing water-related liability insurance.
