When Warning Signs Are Not Enough

On its face, this case gives conflicting thoughts. On the one hand, eighteen signs plus the warnings on Defendant’s website, and the floatation rings next to the pond would seem to be enough to warn of the danger and move the assumption of the risk for injury to those who still choose to swim. On the other hand, another child’s death in the same pond just a year earlier would seem sufficient to alert a reasonably prudent landowner that existing precautions were inadequate and additional measures might be needed to make the pond reasonably safe. This also gives rise to an important question: Defendant posted no less than eighteen signs warning swimmers that they swam at their own risk. Shouldn’t this have been enough to protect the Defendant from liability?

The issue here is both more and less complex: the number of signs was likely sufficient; however, the contents of the signs and who the signs were attempting to warn were what mattered. Though the signs gave general warnings of the dangers of swimming, they failed to specify the actual dangers (murky bottom, lack of visibility, depth, etc.) specific to the swimming pond – making the contents of the signs insufficient to address the dangers. Further, the signs addressed parents, not the adolescents using the pond. Although the minors could read them, their ability to appreciate the risks and assess their swimming abilities was less clear. Minors—especially in groups—tend to overestimate their abilities and underestimate risks. Thus, even eighteen signs were inadequate because they omitted the pond’s specific hazards and relied on parents to control their adolescents’ behavior and swimming at all times.