Basically just think of it as a continuum from things you're obviously responsible for (a child drowns in your pool because you didn't put up a fence), to things you're obviously not (somebody fell and broke a bone because they tripped over a tree root in your acres of backyard forest).

That there's a big gray area in the middle, and that somebody can sue you if they're injured in that gray area, and even if they lose it's still expense and stress and a time suck for you.

I would say that a child falling in your pool is something you're obviously not responsible for. The fact that case law in the US says otherwise is a shameful commentary on how broken the US legal system is.

If you are required by law to put a fence around your pool and include a child-safe door, and you fail to do so, and a child drowns — why shouldn't you be liable?

(Although I think many from the US may interpret a "fence around a pool" to be an overreach of government regulation. But in Australia, "barrier laws" exist in every state/territory to avoid accidental drownings.)

Australia solved this differently - it's illegal to have an unfenced pool precisely because young children wander and fall into pools and drown. We understand that kids shouldn't die. If your fence is neglected or the kid was otherwise somehow able to get in, you're liable. Have a fence up to code, and you're not liable.

Did a lot of kids die in pools before that law was introduced?

NB I'm in Scotland so outside pools aren't a big risk but I also grew up in a small fishing village on a very wild and rocky coast with high cliffs and the idea of anyone trying to "protect" kids in that kind of environment seems very odd to me.

~60/year of <5yo Australian kids in the 90s, down to ~25/year in the 10s. That's a death rate reduction of ~3/100k, which is about the rate of <5yo deaths from cancer. 50% of the <5yo drownings in '93-'18 were in pools.

https://www.royallifesaving.com.au/__data/assets/pdf_file/00...

https://ourworldindata.org/grapher/causes-of-death-in-childr...

There's considerably less unsupervised kids running around rocky coasts with high cliffs than around neighbourhoods and backyards.

Note that Australia also has plenty of coasts and does not mandate a fence around them all.

Of course. These laws don't just come out of nowhere. Kids drowning in pools is a real thing.

Of course, it's also a real thing that the home builders' and contractors' association lobbies to make every pool be legally required to be enclosed by a fence, which naturally needs to be built by a licensed professional.

What? No it's not. That's simply not true. That wasn't how any of those laws developed historically.

And that would just be a nonsensical thing for the construction industry to lobby on. There are things that are actually highly profitable for them to lobby for. That's not one of them.

I'm confused why you can't just accept the obvious that it's an effort to save lives. Like seatbelts.

>obviously responsible for (a child drowns in your pool because you didn't put up a fence)

Does this also count if you didn't invite the child and the terrain was clearly marked as your property? If yes, this is pretty surprising and non-obvious to me. Do i misunderstand something?

For me, the obvious example is bobby trapping your property and hurting a fireman who came to put out a fire.

Yes, it absolutely does count.

You might indeed consider it non-obvious and surprising -- I certainly did when I first learned of it growing up here. Another classic example is that a thief can sue you if they fall through rotting floorboards on your porch and break their legs.

But we've collectively decided, as a society, that property owners are not just prohibited from booby trapping their properties, but are required to actively maintain them in a safe condition according to reasonable standards.

If there's something a reasonable person would know was a safety risk on their property, they'll be held liable if they didn't fix it and somebody injured themselves because of it.

The thinking is basically -- kids will run around onto other people's property, people get lost, etc. We know kids go where they're not supposed to. Nobody should be risking injury or death just because of that, if and when reasonable safety precautions by the property owner could have prevented that.

In other words, we live in a society, and we have a certain minimal level of active duty of care towards others. Owning a piece of property comes with rights but also responsibilities.

Don't at least the parents of the kid that drowned in your pool while trespassing on your land get at least a charge of "criminal negligence" against them? IANAL, but aren't kid's <14 supposed to be supervised at all times by an adult? And 14+ years old that drowns in a pool for inability to swim is also something that should be blamable on the parents, not the pool owner.

Edit with clarifications after comments: I meant, parent's should be supervising their young kids, or take the risk/blame, if something happens to the kids while they aren't.

(I roamed 'unsupervised' in fields and forest at young age with friends, and enjoyed it. But I was also taught to look where I step, and how to swim)

> aren't kid's <14 supposed to be supervised at all times by an adult

Hell no. A world where a nine or ten year old can’t go roam the neighborhood on bikes with some friends unless adults accompany them would be a dystopia. I know there are occasionally news stories about very-stupid harassment of parents for parenting correctly, but thank god it’s still not the norm.

No, the negligent parents get rewarded with your house and assets.

Kids should not be supervised at all times, but parents should also assume the risk for what happens when they aren't supervising their kids.

Managing risk-reward is a natural part of life and being an adult.

Attempts to completely eliminate risk leads to miserable lives and societies.

> Attempts to completely eliminate risk leads to miserable lives and societies.

Covid response in certain jurisdictions was a great example of this. "If it saves even one more life, it's worth it!"

> IANAL, but aren't kid's <14 supposed to be supervised at all times by an adult?

Not in most jurisdictions (thanks God). That's a terrible idea for raising kids.

Being a parent is hard. I would say that half of the US thinks parents are the problem with kids these days and that a good kid should "spend time outside in the neighborhood like we used to", and then the other half will call the police if your child is out of sight because "aren't kid's <14 supposed to be supervised at all times by an adult?"

> but aren't kid's <14 supposed to be supervised at all times by an adult

No. The age which supervision is required varies by jurisdiction.

> And 14+ years old that drowns in a pool for inability to swim is also something that should be blamable on the parents, not the pool owner.

There's no law stating you need to teach your kids to swim.

In the US a criminal charge against someone is not relevant for a civil liability lawsuit.

Civil suits are between citizens. Criminal suits generally have the plaintiff as the state government, albeit with rare exceptions such as RICO.

> But apparently there's no duty of care towards oneself to not trespass into unknown conditions, to watch where you're going, or to supervise one's kids?

No, there absolutely is.

The key word is "reasonable", which I used intentionally and multiple times in my comment.

Every time you dig a deep hole that might be hard to see, yes you're supposed to put up some kind of cones or warning tape or something. You're rightly not allowed to turn your yard into a booby trap, even if it's part of a construction process. (Of course you don't need to put something up while you're working and supervising -- but you sure do overnight while you're away from it.)

We're supposed to watch where we're going, but we also expect to be able to walk across a yard without breaking our ankle because of a hard-to-see hole.

Just like there's a big difference between a hole filled with water where a child could drown (that requires an actual physical barrier), versus a hole where they might fall in but break an ankle at best (cones are fine).

And I don't know why you think a pile of wood is unsafe, that's fine. Why would you need a fence? Unless it's stacked so high you can easily push it over to topple it, but you shouldn't be doing that in the first place.

You're trying to push examples to unreasonable extremes, when the whole point is the concept of reasonable safety.

(FWIW, I happen to agree with you in thinking that tort law is not always the best way to implement this, that there should often be legal enforcement regardless of whether someone suffers an injury, and that injuries should often be compensated out of a general fund. It's tricky though because this would require a level of constant, regular government safety inspections of private property that not everyone is OK with. However, I think the general standard of reasonable safety is nevertheless absolutely correct.)

"Reasonable" is a courts / legal industry weasel word that allows them to kick the can down the road not defining explicit requirements, which is what creates so much of the unknowable liability. This might be fine if we were talking matters of a few thousand dollars, but when we're talking about hundreds of thousands or more, creating a game of life-altering hot potato. And ambiguity would be understandable if we were talking about equitably judging personal action vs another personal action, but what we're talking about here is personal action vs an existing situation that was entered voluntarily.

I do not see that it is "reasonable" to be responsible for any random uninformed person lackadaisically traversing my property as if it's some maintained event space they were invited into with a corresponding warranty of fitness. Yet the courts disagree, and so we're off to the races about what's "reasonable".

Do I need cones for a drainage ditch/brook that has been around for decades? Do I need cones for the 6-8" ruts due to driving through a part of my yard when it was waterlogged? Do I need cones or a fence for a tree that has half fallen down, resting on a neighboring tree, that I've yet to take down the rest of the way? Do I need cones for stumps of cut down trees? Do I need cones for items kept on the ground? Do I need warning signs about possible bees' nests in parts of structures? Do I need warning signs about the high number of ticks due to my letting the grass get halfway to a meadow? Beware of bear because it can hide in my overgrown bushes? These aren't unreasonable extremes, but actual concrete examples.

The world is an inherently unsafe place. We create structure that makes tiny slices of it "safe". Creating a general requirement that the nominal owner of a chunk of land is ambiguously responsible for making it completely safe, even for those who were uninvited, just devolves into putting up one big fence and "no trespassing" signs while hoping for the best. This is precisely what this thread is lamenting.

Also compensating out of a general fund would in no way require government inspections of private property. We're talking about extremely rare situations here, meaning this could be covered as-is in a statistical manner. In fact it already mostly is by private insurance, except when/until it isn't, with that reverse-lottery dynamic rearing its ugly head again.

(The wood pile example is because climbing on them is unsafe, yet looks fun. It's essentially the same type of attractive nuisance as a swimming pool)

> Creating a general requirement that the nominal owner of a chunk of land is ambiguously responsible for making it completely safe

I think that's at the root of your misunderstanding.

Nobody is claiming anything can be made completely safe.

But there is a such thing as reasonably safe. To take general precautions where it is possible and economically reasonable, over potential harms you are aware of, or any generally responsible person should be aware of.

And in terms of all the examples you gave, you can probably figure out what that means. And if you can't, you can ask general contractors or HOA reps etc. (if applicable) who have lots of experience.

It's not rocket science.

Sorry, I do not accept this "it's so simple I'm not going to answer". If it's so straightforward to answer in general, then it should be easy for you to answer. Because what I see is a field of unknown unknowns. It would be bad enough if the bar was me knowing that a harm could happen. But rather even if I don't know, a court can just fall back to social bullying with the catch-all justification of "any generally responsible person" should have known. So despite technically not needing to make things "completely" safe, it is effectively completely because the possible conditions for which you can be held responsible for allowing is unknowable without going to court.

I don't know why you'd mention HOAs, as they're generally their own little micromanaged Hells - I'm not looking for an answer that even grass over two inches tall is unsafe because Karen might have a panic attack. And general contractors generally create LLCs and buy insurance rather than preventing all liability ahead of time. At best they react to problems that repeatedly occur in their industry. They're happy to take money to provide an illusion of complete ownership though.

I do mean all of those examples literally. Personally, I can foresee harm in all of those, and they all seem quite "economically reasonable" to mitigate. So do you just mean "yes" for all those examples? (and if so, why didn't you just say so?)

I'm obviously not happy with any of my listed sources of possible harm existing at this here fix-er-upper, hence them being in my head. Which is why I'm working on them before say having guests that I let run wild in the backyard. But it's a bit rich that such extreme responsibility is still legally inadequate because randos can just trespass uninvited (thus unsupervised and unbriefed) and then demand I pay for the results of their poor choice.

And note here I'm not trying to be callous. I have said that there are legitimate reasons for swimming pools to have fences. We're quite agreed that the well-known pattern of kid jumping into swimming pool alone and drowning is a horrible thing that should be specifically addressed. If we were only talking about specific enumerable regulations like swimming pools needing to be fenced, one could run down that list and know they've all been taken care of. What I'm taking issue with is the unknown blanket liability simply by virtue of owning property, especially when you have not held that property out as a place for others to be.

In most of the US, the attractive nuisance doctrine applies, unfortunately. And nearly anything can be considered an attractive nuisance, or at least there's probably a lawyer out there willing to take the case and cost the landowner money.

Quite so. I get doubly annoyed when people have heated pools by lakes, the lake is clearly not fenced, but that fence had better be on your pool.

And many pools have a shallow end, and many homeowners have long docks, which are in deep water.

Yet docks aren't required to be fenced here.

"can sue you" is a very very important detail here. As I understand it, in the UK, the losing party in a suit pays legal expenses on both sides, which discourages "let's just shake them down" lawsuits. in the U.S. it's way too easy to get a contingency lawyer who knows anyone can sue someone else for anything and they'll have to settle for $$ just because it's cheaper than going to court to "win" against a weak complaint. I did some financial modeling on this years ago that gave a good prediction of when cases will settle in the U.S. tl;dr when the money given to the defense lawyer approaches the probable expectation of the loss you're trying to avoid.

The downside of loser pays is coorts will sometimes find against you in an obvious case and so only the rich can dare risk court.

In the "you pay your own cost" system of the US, only the rich can afford to bring a case as well. And we have the added downside that only the rich can afford to defend themselves. I would much rather have the loser pays system, even though it isn't perfect.

In the us a lawyer will go to court on a you pay only if you win.

The other major downside of loser pays is that it makes litigation very difficult to stop once it starts - and lawyers, funnily enough, will always say that you have an excellent case encouraging people to start litigation....

A good lawyer will not take a case that you are very likely to lose, and he will advise you that you have no case. I believe a judge can also admonish or censure a lawyer who brings a frivilous claim into court? Not sure how often that happens.

In most implementations of loser pays, both parties pay upfront and then the winner gets refunded the fees.

last case I heard numbers on the lawers fees were $500000. This for a case where it was clear they would lose (3 different parties were sued and the nobody could figure out how to split the $100000 loss- that is one party spent 5x the total judgement)

I am not a legal scholar, but anecdotally a common theme in US law is that if you don't make obvious attempts to stop someone from doing something with your property (be it land, objects or intellectual property) then you are tacitly approving it.

The most well known example is probably Trademark Erosion.

Given this theme, it's not hard to see how a judge could rule that if you allow a lot of people to traverse your land, you are inherently maintaining a passageway and are thus responsible for ensuring its safety.

In Toronto Canada, the Eaton's center, which people walk through to get to other streets, closes once per year for this very reason.

Open holes that you know about are one of the issues with the Colorado peaks. There are old mineshafts up there. The owners put up signs, they get torn down.

There's an interesting (slot canyon) local hike that's a good example. The whole situation is a mess, it's an old non-operating mine grandfathered inside what's now a national recreation area. Seems some years ago somebody's car was damaged (not exactly astounding, you need a 4x4 HCV and know how to drive it to get there.) Since it happened on private property their insurance tried to go after the landowner. For years it was posted as no trespassing although some groups still did sneak in. Then there was a period of a few years where it wasn't posted and we (local hiking community) believed it was accessible (nope--flash flood took out the signs and gate.) I went with one such group. There were a couple of mineshafts in the side of the canyon, imperfectly blocked by chain link fencing. Once glance inside was plenty to make me NOPE! it but some of the group squirmed in anyway.

After seeing that I completely understand why the owner denies access.

While I in general support a right to roam it needs to come with extremely strong liability protections. There are too many idiots out there who do not respect that nobody's combing the land for hazards, nor is it even possible as they may change. (There was a case a while back, trespassing IIRC biker got hurt because a flash flood had taken out the paved road he was on. Owner liable.)