Originally posted by aquariumfishguy
Why? If it is not considered as a pool, and he can't put up a fence then how would it be his problem if by some chance a kid drowned in the water?
Simple: the pond may well be viewed as an "attractive nuisance." See, most people DON'T have ponds in their front yards; it's not a typical landscaping feature for that part of a residential property. Because it's in a front yard, it will be easily seen by the public. And think of how the finished pond will look: a splashing waterfall, colorful flowers blooming on the water surface, pretty fish darting around in the water... If an accident did happen, the plaintiff's legal argument would be that this highly visible landscaping feature is obviously going to hold an above-average level of attraction for a small child, who will be unable to comprehend the risks of drowning.
JetService should have realized that and secured the pond; if it's not possible for him to secure it because the homeowners' association restrictions prohibit fencing the front yard, then he shouldn't have installed such a potentially dangerous water feature in his front yard in the first place (since he has no way to keep curious and vulnerable children away from it). By building the pond in such a visible location, he's added a feature that a resonable person would realize might attract young children onto his property; he therefore bears some responsibility for their resulting injuries or deaths if he fails to take appropriate measures to keep them out of it.
Originally posted by aquariumfishguy
I understand what you are saying, good points too... but there is a chance for everything, however I doubt you'd be in legal trouble considering how shallow the water will be, and under the circumstances.
That would depend entirely on the parents of the child. Certainly some people might be able to keep their sense of perspective and realize their child's death was an accident - but there are plenty of people who would deal with their own feelings of grief and failure by lashing out at
JetService. "Why didn't I keep Jason out of that pond?" morphs into "Why didn't that neighbor keep my kid out of his pond? HE'S the one who's negligence lured Jason to his death! If he hadn't build that pond, my son would still be alive!" And then it's off to find a lawyer, and
JetService is facing a lawsuit.
And remember - in the end, it doesn't matter whether the parents of the dead/injured child win or lose the lawsuit; either way, defending himself against the suit will still cost
JetService a lot of time, stress, and possibly money. Better to reduce the risk of such an occurance as much as possible. Since
JetService can't fence the yard to keep unwanted visitors out of the pond, he's better off re-designing the pond to make it less dangerous to really little kids. Unlike the case of a swimming pool, it may not be legally mandated that he do so, but it's prudent.