In a June 2001 decision, the Ohio Supreme Court of Ohio ruled owners were responsible for injuries to trespassing children in cases where the the injury was caused by an “artificial condition” on the property.
A swimming pool is the most common example of an artificial condition that could lead to injury, according to the Ohio State Bar Association.
A landowner is not automatically responsible for injuries to trespassing children, but can be found liable by a judge or jury if the harmed party can provide six separate conditions, according to the association.
Ohio courts would likely look at a pond in a different light, said Anthony Castelli, an area attorney who focuses his practice on personal injury cases.
“Let’s say people are fishing in a pond, they’re not going to make everybody fence their pond,” Castelli said. “It’s an open and obvious condition that’s not an unreasonable risk because everybody knows that water … can create a problem.”
For a factor to be attractive nuisance cases, it must first entice a child onto the property. Retention ponds don’t fit that description, he said.
The general consensus regarding such bodies of water is that young children should be tended to by their parents and that older children should already appreciate the danger involved, Castelli said.
“In the situation that (occurred last week), the child wasn’t enticed, so it’s not an attractive nuisance,” he said. “If I was going to try to go after anybody, I would find out, number one, how did the people in charge of this baby carriage lose control or could you find that whoever built that (retention pond) built in negligently.
“In other words, you’ve got a sidewalk close to a pond, that slopes towards it: Is it slippery when wet and would it be foreseeable then that someone could fall in even though they were exercising ordinary care?”
Retentions ponds, which permanently hold water, are one of two options available to developers who must install structures for flood plan mitigation and storm water retention, according to Chris Petrocy of the Butler County Engineer’s Office.
The second option is a detention basin, a big, open, dry, grassy basin that collects run-off during storms.
“It’s up to the developer to decide which they want to construct,” Petrocy said.
Developers frequently choose retention ponds because they are more aesthetically pleasing, he said.
“People like bodies of water,” Petrocy said. “They’re designed to be an amenity to the community because you build walking trails around them, you can landscape and a pond or a body or water is frequently considered more desirable from an aesthetic standpoint than a big grassy basin.”
When a developer submits plans for a subdivision, the engineer’s office reviews its storm water development plan to ensure it complies with county flood control requirements.
“They have to look at the whole area and determine what size the … detention basin or retention pond needs to be,” Petrocy said. “We have to make sure the developer has designed the pond … to be large enough to handle the increased run-off from the development.
When the area was full of farm fields, having enough land to handle and absorb large amounts of rain was par for the course.
“When suddenly you put a bunch of houses and black-top streets, there’s less ground for that water to be absorbed, so you have more run-off,” Petrocy said.
Installing safety-related features around a pond would be an option entirely up to the developer, he said.
David Fehr, Butler County’s director of development, said his office examines the slope around retention ponds to determine if there is any potential danger, but doesn’t require any type of fence or barrier.
Installing a fence around something meant to be an aesthetically pleasing body of water would “sort of defeat the purpose,” Fehr said.
“Nearly all of our subdivisions in Butler County have some type of open water,” he said. “It might be a pond or a creek and that’s just a hazard of the natural environment sometimes.”
If the county were to discover a hazardous slope near such a body of water or any other design flaw, it would work with the developer to cut the slope back so it is not a hazard, Fehr said.
“That’s about as far as we would go,” he said. “We feel like we take reasonable precautions around these things, but any time you have open water like that, there’s always a chance for an accident. We always stress to folks that any times there’s water out there, you have to use a lot of caution.”
Putting a fence around a pond in all subdivisions is an option might not be well-received either, he said.
Meanwhile, some local residents have voiced frustration over the fact there are no laws governing potential hazards such as retention ponds in the middle of a neighborhood. Some say if laws require a homeowner to fence the area around a swimming pool, the same rules should apply to the ponds.
Fehr said fences are required around in-ground swimming pools, which is in the county’s building code, because there’s more of a chance for close contact.
“You have children in the backyard and things like that,” he said. “Not everybody puts up a fence in their yard, so what we do is we give people two options: you can either put a fence around your backyard or you have to fence around the pool because it may not be your children, it may be … children in the neighborhood. Any time there’s water, that’s an attraction for young kids.”
Fehr said he’s seen some studies that indicate an issue with installing a fence around a lake or pond.
“Kids climb fences and then it’s extremely difficult for emergency services to get over the fence to save someone, which some people don’t think about,” he said. “That could take another 10 minutes to cut through a fence. Just putting a fence up may not be the fix-all that everybody’s looking for.”
“I don’t think there’s a perfect fix for these situations,” Fehr said.
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