Liability and "Decorative" Ponds

In previous posts on this blog we’ve looked at the issue of a homeowner’s liability for drowning accidents that occur in swimming pools located on the homeowner’s property. We have also looked at how a governmental agency or a county could be held liable for a death or accidental injury arising from inadequate safety measures taken to guard against similar accidents in municipal pools or similar recreational areas. In today’s post, our drowning accident lawyer will examine issues of liability that may arise from “decorative” pools such as goldfish ponds or similar in-ground structures.

Although not as popular today as in years past, the grounds surrounding many older homes were often landscaped to accommodate decorative fish pools as the focus of visitors’ attention when visiting the flower gardens that practically always decorated property-boundary fences. Many such pools also often served as habitats for decorative aquatic plants such as water lilies which, in turn, also served as habitats for beneficial animals such as frogs or turtles that would feed on grasshoppers, mosquitoes, or similar pests. Decorative pools began to disappear during the Great Depression years, when they came to be viewed as unnecessary luxuries, and almost ceased to exist during the postwar years.

In recent years, decorative pools have enjoyed something of a revival, particularly in those parts of the country that enjoy year-around warmer temperatures. This renewed popularity also comes with a danger that has been largely overlooked by many homeowners and their landscapers: the very real risk of an accidental drowning.

In a previous post, our drowning attorney examined the liability issue known as an “attractive nuisance.” An attractive nuisance is a hazard to the safety of children whose seemingly-harmless nature may pose a significant risk of serious injury or even death to anyone who is not capable of understanding the risks involved with playing in or near such a structure or object. Such objects are called “attractive” because, by their nature, they tend to attract the attention of curious children who will disregard instructions from parents or some other authority figure to avoid the dangerous situation the object may represent.

There are two aspects of the law that may come into play when dealing with the presence of an attractive nuisance on private property. The first of these is the statutory or “written law” and the other is known as the common or “case law.”

Statutory law refers to any law that has been enacted by some governmental unit such as a city council or a state legislature that has the power to not only make law but also to set a range of punishments to can be assessed against anyone who violates any law that is already “on the books.” Common law simply means law that arises from a sense of “fairness” or, as it is sometimes known, cases of equity. As a rule, only a violation of statutory law is considered a criminal offense while a breach of common law can result only in being ordered to pay damages to the injured party. The law regarding a decorative pool can easily fall into both the statutory and common law categories.

As a matter of statutory law, in many jurisdictions it is unlawful for a homeowner to install anything remotely resembling an in-ground swimming pool without first obtaining a permit from the appropriate local agency. In most cases obtaining this permit is the responsibility of the contractor. Practically all localities also have laws that require the installation of certain basic safety features such as fences, gates, and detectors that will sound an alarm if there is any disturbance in the water’s surface. But what about those cases where it is a decorative pool rather than a swimming pool that is being installed?

While there may be no laws requiring alarms (or even fences) be installed as safety measures for decorative pools, such alarms and/or structures or devices may represent a very cost-effective form of homeowners’ liability insurance. The logic behind such an understanding is quite straightforward.

As a drowning accident attorney will explain, a child cannot be expected to comprehend that a goldfish pond and a swimming pool are two different structures. In a child’s logic, the following will seem simple: “If it has water then it is a swimming pool but if it has water and fish, then it must be a fish pond. Since Mom said to stay away from swimming pools because I might fall in and drown, I’ll be fine because I can’t drown in a fish pond.”

In summary, decorative pools such as fish ponds water gardens are becoming more popular. However, such pools and gardens carry the same risk of exposure to liability of the part of the homeowner or the installer of the decorative pool if industry-recognized safety standards are not provided as a standard part of the project.

Anyone who has experienced a significant injury to a family member where that injury is felt to be due to the negligence on the part of the installer of a private decorative pool or water garden project should contact an experienced drowning accident lawyer to discuss the possibility of pursuing legal actions against the negligent party and others who may be held liable for your family member’s injuries.