Pools need to be fenced not just for privacy, but also to limit tort liability, and that can easily cost over $5,000 just on its own (the current US national average cost for board fencing is about $23 per linear foot and a house on a quarter-acre lot can easily need about 200 linear feet to enclose its backyard completely).
Does this apply mostly to negligence, or are there other factors as well?
Pools are subject to the
attractive nuisance doctrine. Under that doctrine, it is held that if you have some sort of feature on your property that you have good reason to believe might attract children, make no attempt to secure it, and someone injures themselves on it, you are liable for the damages.
According to the Restatement of Torts standard, which is followed in many jurisdictions in the United States, there are five conditions that must be met for a land owner to be liable for tort damages to a child trespasser as a result of artificial hazards.
- The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
- The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,
- The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it,
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
A swimming pool meets all five conditions: children are attracted to pools, a reasonable pool owner should know that a child is at risk of drowning in a pool, children are often too young to appreciate the risk of drowning, fencing the pool is not an undue obstacle interfering with the owner's use of the pool, and fencing the pool would meet a standard of reasonable care.
If you fence the pool and a kid hops the fence and drowns in it, presumably you would not be held liable, because you took care to keep children away from the pool and your efforts were thwarted.
