Protecting the Public – and Limiting Your Liability

It’s not enough that your stormwater infrastructure does the job it’s supposed to, or even that it’s well maintained. You also need to consider how it looks to those who have no interest at all in stormwater but great affinity for mischief and adventure–namely, young children–and anticipate how a pond, culvert, outlet, or some other innocuous-looking piece of the system might lure them in.

Just as product manufacturers must anticipate all the possible ways their products can be used and misused, BMP designers and stormwater managers need to be aware of the “attractive nuisance”–any object or situation that would entice a child to investigate or play. People who work on construction sites are well aware of the need to safeguard the site from kids, and vice versa. If it looks like fun to climb on, explore, jump across, or swim in, sooner or later someone is bound to try it.

The first article in this issue, “Safety at Urban Stormwater Ponds,” provides an overview of issues for designers and those responsible for maintenance to keep in mind. The question of safety, and the associated issue of liability, goes beyond detention ponds or any single type of structure, and the most obvious solution isn’t always the best one.

Duck hunters advise that to be a successful hunter, you have to think like a duck. To do just the opposite–that is, to avoid attracting the very people you don’t want splashing about in your detention pond–you have to think like a child, and what seems like the obvious solution is in some cases not the best one. For example, as the authors of the safety article point out, putting a fence around a pond or other structure might seem intuitive, and in many cases it’s essential. “On the other hand,” they continue, “many children … will view crossing a fence as a worthy and exciting challenge.” What they might not have noticed had you not taken the trouble to draw attention to it with a fence has now become something too good to pass up.

Choosing the right solution is a fine balancing act in many cases, particularly with ponds, because more and more commonly stormwater structures are being incorporated into multiuse areas such as public parks and green spaces, inviting people to get close to them. Good design in these cases–shallowly sloped sides or safety benches to help those who inadvertently fall in get back out, for instance–becomes more important than ever.

In addition to the overriding concern of public safety, you can look at it from a perspective of pure self-interest: At a time when your program is undoubtedly seeking funding and perhaps working to justify stormwater fees to the public, the last thing you want to see in the newspaper is an account of someone breaking an arm or twisting an ankle, or worse, on something you built or are responsible for.

We’re all familiar with lawsuits over other stormwater-related matters: citizens’ groups suing local governments or regulatory agencies for not doing enough to protect water quality or for not enforcing the rules that are already in place, and property owners who hold local flood control or stormwater agencies responsible for flood damage or erosion on their land. Sometimes we need to look at the more basic components–not the overall stormwater plan, but the physical pieces that make up the stormwater system–to make sure we, and the public, are covered.