With winter upon us, news of injuries (or worse) from waterparks and other aquatic facilities should be virtually nonexistent. Unfortunately, that has not been the case recently. In December, a teenager in Wisconsin was killed after breaking into a closed waterpark and falling from a snow covered slide. In January, a YouTube daredevil broke both hands and feet after attempting to jump off the roof of a three-story California hotel into the swimming pool. He missed.
These and other similar incidents around the country raise both safety and liability concerns for the owners and operators of aquatic facilities. What should be done to dissuade this kind of trespassing and minimize the likelihood of costly liability to property owners?
The good news is that, in most U.S. jurisdictions, straightforward, common-sense precautions to prevent trespasser injury will be sufficient to accomplish both goals. In most states, for example, property owners are legally entitled to presume (absent exceptional circumstances) that the general public will not trespass in their facilities when they are closed to the public. Seems sensible, right? The extension of that rule is that property owners, therefore, owe only a modest legal duty to safeguard a trespasser’s safety when the facility is closed. Generally speaking, a property owner’s potential liability for death or injury to a trespasser is minimal, so long as a property owner does not act “willfully or wantonly” (i.e. with callous disregard for the trespasser’s safety)
Put another way, a property owner may have a duty to pick up trash and debris from the facility’s walkways during operating hours to protect guests from slips, trips, and falls. But no such duty is owed with respect to protecting trespassers against injuries when the facility is closed to the public. Instead, the legal duty generally only extends to avoiding willful blindness to significant threats to a trespasser’s safety. For example, workers on the property should not dig a deep hole and simply cover it with a tarp that would allow a trespasser to unwittingly fall in and become trapped. The danger of such a hidden hazard is apparent and significant, so a property owner generally must take minimal precautions, such as fencing or warnings, to guard against injury in this circumstance — even as to trespassers.
For the most part, therefore, even modest means of warding off trespassers can be effective, both practically and legally. These means can and should include basic security measures that most aquatics facilities undoubtedly already have in place, including:
• High fences surrounding the property with locked gates to indicate that the facility is closed to the public.
• Signage at ordinary entrance points, clearly stating that the facility is closed, whether for the night or the season.
• Additional signage at periodic points on the fencing surrounding the property, to notify trespassers attempting to traverse the fence.
• Security lighting and cameras to dissuade surreptitious entry into a closed facility and to create a record of the trespass that may be used in court if necessary.
• Periodic security patrols of the property to monitor for trespassers.
These common security measures will generally suffice, both to dissuade trespassers and protect against potential tort liability. But … notice the word “generally.” As with all things in the law — and in life — nothing is absolute. There are some specific circumstances that may warrant additional precautions, depending upon the location of the facility and the kind of trespassing at issue.
For example, if the facility is located in a jurisdiction that recognizes the “attractive nuisance” doctrine, there may be a greater chance of liability in the event of injury to a child or teen-aged trespasser. The “attractive nuisance” doctrine essentially says that property owners owe greater duties to protect trespassers if the property itself could reasonably attract young people who may not to know better than to trespass. A water slide, play area, or swimming pool could be viewed as just such an attractive feature on a property. The doctrine is not recognized everywhere, and even where it is recognized, it generally becomes inapplicable once a trespasser reaches an age of about 14 or 15. Nonetheless, while the precautions mentioned above are likely reasonable, even under the increased duties imposed on “attractive nuisances,” additional precautions can help to minimize dangers and potential liability to young trespassers. These may include, for example:
• Masking sightlines to pools and aquatic attractions, where possible, with foliage or structures to shield the view of potential attractive nuisances from outside the facility;
• Temporary additional fencing at the base of slide towers to further deter access to high points once inside the facility; or
• Additional lighting and/or physical barriers at attractions with fall hazards, such as empty pools or pump pits, so they may be avoided.
But trespassing concerns need not be limited only to closed facilities. Property owners should also be wary of guests “trespassing” into restricted areas during regular operation. In virtually all jurisdictions, owners of aquatics facilities owe greater duties to warn paying guests about potential property hazards than they do a trespasser during off-hours. Those duties extend to protecting guests from inadvertently “trespassing” into restricted areas where they could be injured or killed. Warning signage, oral instructions, vigilant security monitoring, and locked doors and fences are important both to ensuring that guests are not injured by inadvertently wandering into a restricted, hazardous area and in defending a claim should a guest become injured upon entering such areas. The more reasonable warnings and precautions that the owner can demonstrate to a court, the greater the likelihood of avoiding injury in the first place and of a successful defense for any that do occur.
As with all things, no precaution is foolproof, and there are no silver bullets that will guarantee a successful defense in the event of injury to a trespasser. After all, trespassers don’t always read signs. Even when they do, they might not heed their warnings. Fences can be scaled. Locks can be cut. Nonetheless, a few relatively common and inexpensive safeguards can make a tremendous difference both in preventing injuries to trespassersand in mitigating costly liability exposure if or when injuries do occur.