October 7, 2012 in Business

If you charge for waterfront access, check your insurance

Tom Kelly
 

Many fishermen cut through private property to reach their favorite section of a river. Often, that entry can be illegal trespassing, but there are many places where access is granted and encouraged.

For example, there is a private-property owner on a river who for years had a deposit box on a cleared acre of land, a pie-shaped parcel whose “point” was a make-shift boat launch. “Honor system” steel headers crammed coins into the slots of a metal box for the right to use the launch and park their trucks and trailers. The name of the fishing hole opposite the launch got its name from the size of coin that fit the slots in the metal box.

Several years ago, when there was an accident on the launch involving a teenager, I thought about the liability, not only to that parcel but to other properties adjacent to natural bodies of water – riverfront restaurants, Puget Sound marina docks and city beaches.

Most states now have guidelines as to how business and rental property owners treat and protect their waterfront, especially when children are present. In summary, these owners are required to make “reasonable” efforts to protect children on their property and from natural bodies of water.

One of the challenges is the definition of “reasonable.” There is no written rule that says that a property owner must fence off a body of water in order to avoid potential liability. And reasonable care only applies to a property owner who derives some economic gain from the children’s presence. A private homeowner has no such duty to protect children who are social guests from the dangers of natural bodies of water.

The reasons for the precautions stem from a terrible case where a 2-year-old child was left a quadriplegic with brain damage after nearly drowning in a creek at a mobile home park. The boys’ parents paid rent for a mobile home space there, plus an additional $1 a day for each of their five children.

According to court documents, there is a clear, shallow, slow-moving creek in summer that can be deep, swift and murky during the winter months. The landlord required families with small children to live at the far end of the park, away from the families without children and in the area closest to the creek.

Although the mobile home park was partially fenced, there was no fence running along the property nearest a grassy play area adjacent to a steep embankment leading to the creek. The parents did not allow their young children to play outside alone and did not allow them to go near the creek by themselves.

The boy was riding a bicycle while the father was making repairs on their home. According to the father, the boy was out of his sight “for less than one minute.” The father found the bicycle at the bottom of the embankment, partially submerged in the creek. A neighbor helping to search for the child eventually found the boy in the creek.

The father and boy, through his guardian, sued for the mobile home park for negligence. The trial court ruled that a landowner’s duty to maintain the premises in a reasonably safe condition does not require affirmative acts to protect tenants from the inherent dangers of natural bodies of water.

The father and boy appealed and the high court reversed the trial court’s decision. The case eventually was settled for the full amount of a $500,000 insurance policy.

Generally, a landowner owes a trespasser or a “licensee” only a duty to refrain from “willfully or wantonly” injuring them. A licensee is someone who enters upon the land with the landowner’s consent.

An exception to this rule is the attractive nuisance doctrine. This doctrine, the result of concern for kids who trespass on property to use an attractive – and sometimes dangerous – element (like a pond), elevates the standard of care and states the landowner is liable if the danger is not eliminated. However, this does not apply where the hazardous condition is a natural body of water.

According to attorneys familiar with the case, the decision means there is no exception for natural bodies of water where the landlord gets cash from the users. Again, a private homeowner has no such duty to protect children who are social guests from the dangers of natural bodies of water.

However, if you charge to reach the waterfront, make certain you have ample insurance in place.


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