2005-09-28 CC Packet - Laserfiche WebLink

Home Browse Search

SEP-19-2005 14:59 LEAGUE OF MN C IT I ES 6512811296 P.03 ~s CONTROL ., ~ 47 - POTENTIAL LIABILITIES IN AND AROUND PONDS by Rich Korm~, LMCIT Research Assistant The issues considered here are whether a municipality may be liable for the drowning of an infant or an adult on private or public property on the theory of either allowing a nuisance to exist or for negligently maintaining a pond. Included is a discussion of the attractive nuisance theory, even though it applies only to property owners because of policy analysis. FOREIGN JURISDICTIONS Generally, courts have refused to impose liability upon municipalities for death to children from ponds under the attractive nuisance theory. Harper v. Topeka, 92 Kan. 11, 139 P. 1018 (1914): Raeside v. Citv of Sioux City, 209 Iowa 975, 229 N.W. 216 (1930); Fiel v. City of Racine, 203 Wis. 149,233 N.w. 611 (1930); Ochampauah v. City of Seattle, 91 Wash.2d 514, 588 P.2d 1351 (1979). Ochampauah found that the "most significant factor to be considered when it must be decided whether liability will be imposed upon the possessor for a condition existing upon the land is the likelihood or probability of harm to others." ~ at 1356. This court concluded that natural bodies of water, or similar artificial waters, do not present a likelihood or probability of such harm and noted that these natural waterways comprise one of the state's most cherished amenities. Under the attractive nuisance doct~ine, a p~ope~ty owner must use reasonable care to protect child trespassers where the owner reasonably anticipated the child's presence. This anticipation must be based on actual or implied knowledge of a feature's attractiveness to children. Hardv v. Missouri Pac. R.R. Co., 266 F. 860 (1920). The refusal to apply the attractive nuisance doctrine is based largely on the prevalence of ponos and the difficulty which a duty to fence would impose. As one court has noted, "Hundreds of bodies of water, both large and small, dot the entire state. These do take their toll on human life, especially of children, but it has not yet been deemed to be the duty of the owner to fence or barricade the ponds so as to exclude the public." Fiel, 203 Wis. at _,233 N.W. at 613. However, a court has noted that all bodies of water are attractive to children. Raeside, 209 Iowa at ___, 229 N.W. at 217. In Minnesota, the burden would be unreasonable because of the large number of ponds and lakes. It has been held that "a pond cannot be rendered inaccessible to boys by any ordinary means. Certainly no ordinary fence around the lot upon which a pond is situated would answer the purpose: therefore, to make it safe, the pond must be either filled or drained." Omaha v. Bowman, 52 Neb. 293, _, 72 N.W. 316, 318 (1914). In 1 ;!-1 i