Water, water everywhere

Happy Monday again.

Sorry I was out of touch for the better part of last week, but the host service for this blog was just not cooperating with my computer. In other words, I got locked out of my own blog site. Anyway.....

Pools. Just about everyone has one and many fail to appreciate that the law acknowledges that your ownership does not make you a bank account for people who use it or are hurt in it. Some clients are very concerned that their ownership of a pool is a real potential liability. After all, people could drown in there.

Welcome to the decision of Longmore v. Saga Bay Property Owners Association, Inc. a case reported a few years ago (2004 to be exact). In that case, the decision to dismiss a wrongful death based upon a minor's drowning in a community's man-made lake was affirmed. The part you care about is the part in which the court went through and cited to a number of cases that supported its general proposition that "there is no liability for a child's drowning in a body of water, natural or artificial, unless there is some unusual danger not generally existing in similar bodies of water or the water contains a dangerous condition constituting a trap."

The things that constitute an unusual danger are pretty extreme. Guillot v. Fisherman's Paradise, Inc., 437 So.2d 840 (La.1983)(no liability for two-year-old's drowning even though pond's sides went straight down and surface covered with thick, green algae, trash and debris); Corcoran v. Village of Libertyville, 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E.2d 177 (1978)(no liability where drainage ditch had deceptively steep slope, irregular embankment, an “unnaturally pocketed” bed causing excessive accumulation of water, rubbish and debris). Kinya v. Lifter, Inc., 489 So.2d 92 (Fla. 3d DCA 1986) (artificial bank's slope not so different from natural bodies of water); Hendershot v. Kapok Tree Inn, Inc., 203 So.2d 628 (Fla. 2d DCA 1967)(sudden drop-off two feet from shore); Howard v. Atlantic Coast Line R.R. Co., 231 F.2d 592 (5th Cir.1956)(applying Florida law; straight sides do not constitute hidden danger); Cortes v. Nebraska, 191 Neb. 795, 218 N.W.2d 214 (1974)(public recognizes that bodies of water vary in depth and that sharp changes can be expected); Plotzki v. Standard Oil Co., 228 Ind. 518, 92 N.E.2d 632 (same).

And you thought alligators were the big problem in the water.