Owner Liability Question

chisueMay 23, 2011

Our property extends to the middle of a creek that was dredged into a storm water conduit in the late 19th century. Much of the summer the water is only inches deep, but in storms it can rise to the level of the banks (about 12 feet above creek bottom).

I have recently seen neighborhood children playing along the creek. Yesterday I walked through the trees and shrubs along the deerpath near the water. Kids have tied a rope to a branch of a tree on our property and are evidently using it to swing out over the water. Were they to fall in now, with the water level low, bones would break!

Do I cut down the rope? Keep doing that? Ignore it? What's our liability?

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nycefarm_gw

It is an attractive nuisance (& possibly dangerous). Remove and post no trespassing signs...

    Bookmark   May 24, 2011 at 1:15PM
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dreamgarden

I'd ask my insurance company. Email them a pic and see what they say.

    Bookmark   May 24, 2011 at 1:17PM
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Billl

If anybody gets hurt on your property, there is certainly a liability issue. If you knowingly allow dangerous activity to occur on your property, you open yourself up to civil lawsuits and possible criminal charges.

Cut down the rope and go talk to their parents. You are rightfully concerned about their children getting hurt.

    Bookmark   May 24, 2011 at 2:39PM
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chisue

I am concerned that someone will get hurt, although I suspect kids have played around this waterway for 100 years. These are mostly middle-schoolers. I don't know where they live -- they *gravitate* to the creek.

I am also concerned about our liability and wonder if issuing warnings opens us to *more* liability. I've 'done the right* thing' in the past over other issues and had that boomerang.

We did not build this 'attractive nuisance'. I cannot police it; can't even see it from our house.

What of people who own beachfront property? Are they responsible for anyone coming onto their beaches? We are one of four properties with easy access to this area of the water -- two on each side of a bridge.

    Bookmark   May 24, 2011 at 5:43PM
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jane__ny

Food for thought. I lived, 40 years in a neighborhood which had a large pond. The pond had a waterfall which dropped down into a rocky stream, 50 ft down. The stream would dry up in late summer leaving a very rocky river bed. This pond was shared by 3 houses each owning a 1/3 pond. Nothing was fenced or posted and was very woody.

One of my dogs got loose and fell over the side of the stream wall and fell 50 feet unto the rocky stream bed. He broke his collar bone and both front legs. Vet costs were very high and his recovery was long and difficult.

It never occurred to me to sue the homeowners. But had that been a child, I believe it could have been fatal. I think I would have sued. This pond and stream bed is not close to the houses mentioned. I don't think they could see if children were playing near the pond/stream due to the trees.

I would contact your insurance company to find out.

Jane

    Bookmark   May 24, 2011 at 11:04PM
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chisue

Jane -- Poor doggie! I hope he was able to recover well eventually.

I did phone our State Farm agency. The clerk called Bloomington and got back to me with what seems to be vague advice. First, she said our homeowner's policy would cover injuries on our property. She also said we should 'shoo' the children away, telling them it's private property. She said to post a "Private" sign at the entrance to the deerpath. (How about "Deer Only Past This Point". lol)

I *could* call the police and get them to do some official 'shooing' next time I hear kids down there. That might carry more weight with the children, and it would provide a record that we'd tried to act responsibily. I don't think it's smart for me to try to track down parents, but maybe the police would do it. The kids ride their bikes here. I don't know their families. I'd have to try to follow them home; that seems weird.

    Bookmark   May 25, 2011 at 9:45AM
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sushipup1

We once lived in a similar situation. As I recall, you must never invite the use of the creek, nor encourage it. Don't be coy with the sign, just a simple "No Trespassing" is best. Coy isn't legally interpreted. Then you are covered against liability.

Don't worry about talking to the parents, etc. Or calling the police. Just post the property and shoo them if you happen to see them.

    Bookmark   May 25, 2011 at 10:04AM
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nycefarm_gw

You may not have created the attractive nuisance, but by allowing it to remain you are essentially condoning it's use. Kids need to be yelled at (not shooed away) when they are doing something wrong, even innocently trespassing...

    Bookmark   May 25, 2011 at 12:45PM
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chisue

I've neglected to thank you all. THANKS!

If it ever stops raining we will get out there and cut down the rope. (I think the rope is the 'attractive nuisance' you are talking about, nycefarm. *I* was saying we had not created the waterway!)

sushipup -- I was just kidding about the 'Deer' sign. I wonder how many times we will be replacing a "No Trespassing" sign...sigh.

    Bookmark   May 25, 2011 at 5:37PM
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dreamgarden

"I did phone our State Farm agency. The clerk called Bloomington and got back to me with what seems to be vague advice. First, she said our homeowner's policy would cover injuries on our property. She also said we should 'shoo' the children away, telling them it's private property. She said to post a "Private" sign at the entrance to the deerpath. (How about "Deer Only Past This Point". lol)"

I would call State Farm back and ask them to show you where it says this on your policy. If they can't show you then ask them to put it in writing.

You might also want to call the city and ask them what your liability is if anything happens. See if they can post a sign for you.

As for yelling at kids, I'd avoid this. They will be disappointed enough to see a privacy sign. No point in making yourself a target for those who might be looking for someone to punish for taking away their fun.

    Bookmark   May 26, 2011 at 2:25PM
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chisue

dreamgarden -- Very good point about the insurance. You've also expressed what I worried about over posting the property -- although...they can still access the creek from the OTHER three properties abutting the bridge.

I will call our city government and perhaps our police department. This creek runs through the whole town. There are three other bridges over it in town. This can't be my concern alone.

But you are right to say I need *something in writing*!

    Bookmark   May 26, 2011 at 6:27PM
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jane__ny

Chisue, the pup turned out to be a big, beautiful boy without any sign of injury. It did take months and believe it or not required physical therapy and acupuncture for a few months.

We actually inquired about posting signs and was told there are strict regulations regarding them. We had a few acres of land, much wooded. Hunting deer with bow was permitted in the town. We did not like seeing hunters on our property and contacted the Town for measures to stop them from trespassing. We were told 'No Trespassing' Signs must be posted every 15ft around the entire property. If they were placed more than 15ft apart, they would offer no prevention of liability.

I don't know if this rule is the same everywhere, but it might be worth checking out. Our main concern was hunters shooting each other or someones' child or dog. I didn't want these people on my property and fencing was out of the question because of cost.

Jane

    Bookmark   May 27, 2011 at 10:34PM
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chisue

Jane -- Glad for the good result. You'd be as thrilled as I am about our *alderman*, who has taken to toting his rifle around town, killing coyotes. He's an avid bow hunter (deer), but not IN our town!

I did call our police department. They said to post a sign. They said NOT to shoo the children oursleves, but to call them if kids ignored the sign. DH has cut down the 'Tarzan' rope. We've had so much rain and cool weather that I haven't seen kids...and we haven't gotten a sign yet. (Sigh.) Heat is predicted Sunday and Monday.

    Bookmark   May 28, 2011 at 3:11PM
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dreamgarden

"dreamgarden -- Very good point about the insurance. You've also expressed what I worried about over posting the property -- although...they can still access the creek from the OTHER three properties abutting the bridge."

You never know what your covered for until you need to file a claim. Better safe than sorry.

Have you talked to your other neighbors about this? They might have some insight to share. Especially those who have lived in the area awhile.

    Bookmark   June 4, 2011 at 9:30PM
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raee_gw

Is it not sad that we have to be concerned that someone might sue us for owning a part of the natural landscape?
Will we get to the point that we need to bulldoze creeks, cliffs, ponds that have occured naturally just because someone might hurt themselves?
But yes, I agree with cutting down the "Tarzan rope".

We used to go down to the creek that bordered my neighborhood and swing on the grapevines. To this day I don't know who might have owned that patch of land.

    Bookmark   June 6, 2011 at 2:58PM
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chisue

Well...we bought two small signs "Private" and "Keep Out" but haven't posted them yet. We've heard boys twice. I went out the first time to find three (maybe age 14; voices changing) boys on the bridge and one in the water. I explained that our insurance didn't want anyone playing there and that we did indeed own the property into the middle of the creek. They took it all in very politely and went home. DH went out yesterday and told three younger (7 - 10) boys the same thing. They were disappointed but gave him no trouble and went off on their bikes.

We've been here 10 years. We are 'senior' to all but the (very reclusive) neighbor directly across the creek from us.

When DH talked to the police, they must have notified streets and sanitation, because they came the next day to clear away some odds and ends kids had left under the bridge. They've painted out kids' slogans a couple of times, but right now the only painting under the bridge is really quite cute: a big, smiling sun and a star. (Had to be little girls!)

We live in on a quiet 'countrified' street in an upscale suburb 30 miles north of Chicago -- houses much larger than ours on up to 10 acre extensively landscaped lots. I don't see any "No Trespassing" signs anywhere else and am reluctant to 'go large' with this. I feel as though I am depriving the kids of the only 'wilderness' in their world.

    Bookmark   June 7, 2011 at 6:00PM
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vala55

In our city there are no trespassing laws, unless you have a no trespassing sign with the city code on it. We have just gone through that with the common area in my neighborhood. I asked a police officer if he can do anything without the code and he said no.

    Bookmark   June 8, 2011 at 8:46PM
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dreamgarden

"I don't see any "No Trespassing" signs anywhere else and am reluctant to 'go large' with this. I feel as though I am depriving the kids of the only 'wilderness' in their world."

I understand what you mean about not wanting to deprive kids of some summertime fun in the water. Is there a community pool or other place they can go?

    Bookmark   June 9, 2011 at 12:09AM
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chisue

drreamgarden -- Oh, children here are *privileged*. They have loads of planned recreation available. Many homes have in-ground pools. There's a beach a mile+ away. The creek, though, is 'wilderness in your back yard'. You can walk or ride your bike to it -- no adult assistance required. The appeal of unsupervised play is, of course, our problem!

    Bookmark   June 9, 2011 at 1:13PM
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