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Attractive nuisance bill advances in N.C. House amid skepticism

Attractive nuisance bill advances in N.C. House amid skepticism

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A House bill advanced Wednesday that would make more property owners exempt from some trespassing liabilities involving bodies of water.

House Bill 228, however, drew opposition from a House Judiciary 3 committee member, who cited concerns about removing liability from property owners who knew about trespassers and chose not to take preventive steps.

Meanwhile, House Bill 46, which would strengthen state Human Resource Whistleblower protections, was recommended out of the House Rules and Operations committee.

HB228 was filed by Rep. Lee Zachary, R-Yadkin. His district contains a portion of western Forsyth County.

The bill is titled “Attractive Nuisances,” as did Zachary’s House Bill 447 during the 2019 session. HB447 cleared the House by a 74-41 vote in May 2019, only to not be heard in a Senate committee.

The 2021 version has been sent to the Rules and Operations committee for consideration.

Property owners would be subject to liability for a death or injury involving a body of water only if they had enhanced the property, such as adding a sandy beach, a pier or other manmade element.

The bill defines a body of water as a “pool of water, pond, stream, creek, river, lake, reservoir ... having a primary use as a wildlife habitat, a wildlife conservation source, a wildlife water source, irrigation source or water place for livestock and farm animals.”

Zachary said HB228 has been tweaked “to apply now to farm ponds and wildlife type ponds that have not been made ‘attractive’ by improvements.”

The current law is focused foremost on children who trespass because they are attracted by something artificially created on the property, such as a man-made pond or lake.

The current law makes the property owner subject to liability if they knew children were likely to trespass; there was an “unreasonable risk” of injury or death; the child did not know they were at risk by trespassing; and the property owner “failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.”

“This bill just says that if you have a pond used for farm purposes or wildlife and you have made no improvements to attract trespassers, then you just aren’t liable for injury to trespassers,” Zachary said.

However, Rep. Deb Butler, D-New Hanover, said during the Judiciary 3 meeting that she believes HB228 “is a terrible policy move.”

“A watering hole is going to attract children, and in the summer months, you can’t watch children 24 hours a day. I don’t think that’s realistic.

“If a property owner has knowledge that children are swimming in their pond, the fact that he didn’t put a grain of sand out there, or a diving board, shouldn’t make any difference.

“If (there) is knowledge, they’ve got a duty, in my opinion, to abate that situation,” Butler said. “When children drown because of this, we’re going to be very sorely sad about it.”

Rep. Sarah Stevens, R-Surry, said the bill “is a clarification of something that is a natural condition that a child is coming to.”

“If the child is not smart enough to avoid the dangerous conditions, then the parent should be closer.”

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@rcraverWSJ

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