Woman falls from CN bridge - dies

[marknewton]

An example of attractive nuisance: a chemical company buys a disused swimming pool. During a long heat wave they decide to use the pool to store a few million gallons of acid. Despite the "no trespassing" and "no swimming" signs, people climb over the chain link fence, jump in the pool and get dissolved in acid.

Is there anybody who believes the chemical company is less than 50% at fault in this scenario?

Me. I don't believe the chemical company is at fault.

Let's put up an alternate hypothetical. You, Gardendance, have a swimming pool in your home. Being a responsible sort of bloke, you erected a safety fence around the pool, and placed signs warning of the depth. You're out in the front yard of the house one day, and a neighbour decides he wants to have dip in the pool. He enters your property without your knowledge or permission, climbs over the pool fence, and hops in. But he's a poor swimmer, gets into difficulty, and drowns. You're prepared to accept that you're at least 50% at fault, aren't you?

Mark.

[Anonymous]

An example of attractive nuisance: a chemical company buys a disused swimming pool. During a long heat wave they decide to use the pool to store a few million gallons of acid. Despite the "no trespassing" and "no swimming" signs, people climb over the chain link fence, jump in the pool and get dissolved in acid.

Is there anybody who believes the chemical company is less than 50% at fault in this scenario?

Something occurs to me:

When you label your example as an example of attractive nuisance, it seems to stipulate that the circumstances of the chemical company and its acid storage do indeed constitute attractive nuisance.  If that is the case, then the chemical company could be found liable.  But attractive nuisance has criteria that must be met.  One qualifier is that the victims must be children, so even though you only describe the victims in your example as "people," they must be children. 

But your example also states that the acid pool is protected by a chain link fence.  And the victims had to climb over the fence in order to gain access.  So presumably, the fence is in good condition.  That might disqualify your example as being attractive nuisance.  Thus, if it is not an example of attractive nuisance, I don't see how the chemical company could be held liable.  It seems to me that fencing residential swimming pools is considered to be the sufficiently responsible measure for the protection of children who might otherwise be lured to the pool.  So I think you have to remove the fence in order to label your example as attractive nuisance.

Or you could leave the fence in your example, and just say that it has a hole it it.   

[gardendance]

To your question:  I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree.

  ...

 and the 90% holding this view would be incredulous to learn that they are wrong. 

Here we go again. In what way would 90% of people be wrong? In their interpretation of the law? Or for holding that opinion?

Bucyrus can speak for himself, I'm just trying to be helpful. I'm assuming he meant their interpretation of the law, but I wish he had phrased his intent more clearly.

I daresay most people aren't even remotely interested in the legal theory you describe. Their conclusion is reached after making a value judgement, based on their understanding of personal responsibility, and their common sense.

I agree with you that most people probably aren't interested in the legal theory, but I imagine in some jurisdictions it's more than just a theory. Then we get into the fact, or at least the possibility, that some percentage of the people on a jury might not like chemical companies.

I've been on juries, criminal cases, reached a verdict twice, and was waiting for trial to start once when the defendant changed his plea to guilty. I remember at least one judge telling us that we yes they were expecting us to base our decision in part on our understanding of personal responsibility, and common sense, but also more importantly on the evidence presented and the judge's instruction to us as to what the law meant. So if a judge is going to uphold the law as written, and there's a law that says you're somewhat responsible if you have an acid filled swimming pool, or a scenic railway bridge, then you have to worry about what verdict a jury might return.

Let's put up an alternate hypothetical. You, Gardendance, have a swimming pool in your home. Being a responsible sort of bloke, you erected a safety fence around the pool, and placed signs warning of the depth. You're out in the front yard of the house one day, and a neighbour decides he wants to have dip in the pool. He enters your property without your knowledge or permission, climbs over the pool fence, and hops in. But he's a poor swimmer, gets into difficulty, and drowns. You're prepared to accept that you're at least 50% at fault, aren't you?

Mark.

Now you're making it tough. Of course I'm only prepared to accept it if it's going to happen to somebody else, not to me :). Seriously though, I'd rather stay away from discussing whether I'm happy about the situation. I think it's more on theme with this thread to talk about possible claims that could arise from situations like this. In order to be prepared for the possibility that it might happen to me, responsible homeowner that I am, I shoud buy insurance, which then means there are deeper pockets for claimants to try to collect from, which could increase the frequency and dollar amount of claims, which then increases the risk of not having insurance, so I'm more likely to buy insurance, which means there are deeper pockets...

Another horrible thought is even if I drain the pool I could still have some drunk take a shortcut through my yard, fall in and crack his skull.

But your example also states that the acid pool is protected by a chain link fence.  And the victims had to climb over the fence in order to gain access.  So presumably, the fence is in good condition.  That might disqualify your example as being attractive nuisance.  Thus, if it is not an example of attractive nuisance, I don't see how the chemical company could be held liable.  It seems to me that fencing residential swimming pools is considered to be the sufficiently responsible measure for the protection of children who might otherwise be lured to the pool.  So I think you have to remove the fence in order to label your example as attractive nuisance.

Or you could leave the fence in your example, and just say that it has a hole it it.   

No, I was thinking more on the lines that the chain link fence was enough if it was a pool filled with water, but the swimming pool with acid needs more protection. And I was thinking the neighborhood was populated entirely with Ordinary Prudent People, and maybe one or two Easter Bunnies :)

Folks we're talking about a spectrum of risk. Try to take reasonable precautions whether your're jumping into the pool or thinking of crossing the railroad bridge, whether you're filling the pool up with whatever liquid, or building the railroad bridge.

[Anonymous]

But your example also states that the acid pool is protected by a chain link fence.  And the victims had to climb over the fence in order to gain access.  So presumably, the fence is in good condition.  That might disqualify your example as being attractive nuisance.  Thus, if it is not an example of attractive nuisance, I don't see how the chemical company could be held liable.  It seems to me that fencing residential swimming pools is considered to be the sufficiently responsible measure for the protection of children who might otherwise be lured to the pool.  So I think you have to remove the fence in order to label your example as attractive nuisance.

Or you could leave the fence in your example, and just say that it has a hole it it.   

No, I was thinking more on the lines that the chain link fence was enough if it was a pool filled with water, but the swimming pool with acid needs more protection. And I was thinking the neighborhood was populated entirely with Ordinary Prudent People, and maybe one or two Easter Bunnies :)

 

You might be right about the pool full of acid needing more than a chain link fence to mitigate liability.  I imagine that a lot of hairs get split in deciding how far a landowner must go to protect a trespasser from harm.  If your example meets the definition of attractive nuisance, then I suspect the chemical company is at fault. 

But then with Mark's example of your own swimming pool with a safety fence and warning signs, it would be a conventional water-filled pool, and the fence and signs would probably be deemed adequate to protect you from attractive nuisance liability.  So the two examples would not be analogous.

 

[Anonymous]

To your question:  I will not speak for forum members here, but in society overall, I would estimate that 90% of people would believe that the chemical company is not at fault to any degree.  They would say that the pool was on private property and was posted against trespassing, so what ever happens to trespassers is entirely their own fault.  Of course this is incorrect, and the 90% holding this view would be incredulous to learn that they are wrong. 

Here we go again. In what way would 90% of people be wrong? In their interpretation of the law? Or for holding that opinion?


Mark.

In their interpretation of the law.  And if their interpretation were considered to be their opinion, I guess their opinion would be wrong too.  However, if they understand the law, but hold an opinion that the law is not logical, not based on common sense, or otherwise ill-founded, that's fine.  They cannot be said to be wrong because they have that opinion.