Managing an Attractive Nuisance

When a construction site is left unsecured, it can become a serious hazard, says veteran expert witness, Scott Cohen. The danger isn’t hypothetical. It’s real, potentially fatal, but also, thankfully, preventable. The key is always keeping in mind that clients, and especially kids, don’t always appreciate the hazards of a working construction site.

By Scott Cohen

In my role as an expert witness in construction defect and safety cases, I have seen the devastating outcomes of failing to follow basic site safety protocols. This article draws from one such case involving a tragic drowning in a residential swimming pool under construction. While names and locations are withheld to protect privacy, the lessons are universal and critically important for all contractors, subcontractors, homeowners, and inspectors.

It was a devastating situation for those involved, and a crucial cautionary tale for those of ultimately responsible for job site safety.

Shared Responsibility

Both contractors and homeowners play a role in job site safety. In a recent case in “Burbon Country”, a fiberglass pool was partially filled with water to stabilize the shell during backfilling—but no fencing or locking gates were in place. A 5-year-old neighborhood child wandered onto the property, fell in the pool, and tragically drowned.

While the contractor and subcontractor failed to install a compliant temporary barrier, the homeowner also bore responsibility. They had knowledge of the hazard, retained control of the property, and had even signed agreements with the contractor acknowledging safety responsibilities and barrier requirements.

In residential neighborhoods, it is entirely foreseeable that children will walk, bike, or play near open yards—especially when the visual lure (attractive nuisance) of a swimming pool is present.

Hidden Dangers

That’s an extreme and horrific example, and certainly less severe injuries are far more common, but keep in mind, all construction sites are filled with hazards that may be routine for trained professionals but are often dangerous and sometimes deadly to untrained visitors — especially children.

Some of the most common risks include:

• Open excavations and trenches
• Unprotected pool shells with standing water
• Exposed rebar left uncapped
• Trip hazards from uneven surfaces or construction materials
• Unsecured access points without fencing or locked gates

Contractors are obligated not only to ensure the safety of their own workers, but also to protect the clients they are working for, the general public, and the neighborhood, including children who may unknowingly wander onto the site.

The “Tonka Factor”

During my 16 years filming for HGTV, NBC, and ABC, one production rule always held true: the bigger the equipment, the better the shot. We called it the “Tonka Factor”—those scenes with excavators, bulldozers, Bobcats, concrete pumps, and giant cranes that make even grown adults stop and stare. Why? Because watching the real-life size versions of the toys we played with as kids is undeniably captivating.

But what makes these machines so exciting on screen also makes them dangerously enticing in real life on your projects —especially for children.

On active job sites, large equipment isn’t just impressive, it’s potentially lethal. Kids are naturally drawn to the movement, noise, and scale of heavy machinery. Left unsecured or unmonitored, these machines become irresistible magnets for curious little explorers.

Imagine the excitement you would have had as a small child watching a 40-by-16-foot swimming pool being craned over your neighbors’ home into the backyard, with big yellow tractors and excavators driving back and forth on the property. 

It’s easy to forget, in the rush of construction, that every piece of equipment has the power to cause harm. As responsible contractors, it’s our job to mitigate that risk with proper barriers, supervision, and clear signage. We may be building dream backyards, but that dream can turn tragic in an instant if safety takes a back seat.

Attractive Nuisance

 Swimming pools under construction are considered the classic example of an “attractive nuisance” –  a legal term meaning something that can lure children into dangerous situations. As professionals, whether we’re builders, service technicians, or landscapers, we have a responsibility to protect against these risks.

There are “attractive nuisance”laws in place that hold property owners and contractors (including sub-contractors) liable for injuries to children who are lured onto a property by a hazardous condition they do not understand—such as an unsecured pool with water in it.

Even an unfinished fiberglass or concrete shell holding just a few feet of water poses a significant drowning hazard. And once a vessel contains more than 18 inches of water, it meets the ANSI 5 Residential In-Ground Swimming Pool Standard definition of a swimming pool, triggering safety and enclosure requirements.

Protection in Place

Prefabricated pool shells, like fiberglass swimming pools that require partial or complete filling of water to level and backfill, must be fenced off with a proper enclosure once more than 18 inches of water sits at the bottom of the pool.  Have your plan in place to fence off the property while under construction.

If you are unable to install the intended final enclosure fencing during construction, then rent temporary fencing that complies with local building codes. At my firm we often rent chain link fence on temporary post bases when we need to keep pets or children out of harm’s way. It’s inexpensive when you compare that cost to the immeasurable price of a child’s life—and to the legal, moral, and financial consequences of failing to secure a jobsite.

Rebar Caps, Caution Tape, and Trip Hazards: Beyond water-filled vessels, there are numerous jobsite safety measures that contractors often overlook:

Caution Tape Around Footings and Trenches: Footing excavations are easy to fall into and should always be clearly marked with high-visibility caution tape or safety barriers like stretchy orange fencing.

Capping Exposed Rebar: Exposed vertical rebar must be capped with OSHA-approved mushroom or impalement-protection caps, old tennis balls, and empty plastic water bottles simply don’t qualify. Open rebar is not only dangerous but often a clear OSHA violation and very expensive. The pool contractor that taught me the trade 30 years ago went out of business when one of the employees in his care fell back onto an exposed piece of rebar and impaled himself.  It was the end of the employee, and the end of a 25-year veteran pool builder. 

Loose materials, cords, hoses, wooden stakes, and tools left in walk paths are all hazards that must be actively managed. Unset pavers, open forms, and partially installed features should be clearly marked or temporarily taped or roped off.

OSHA’s General Duty Clause: The Occupational Safety and Health Act (OSHA) requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” (29 U.S.C. § 654).

While OSHA primarily addresses worker safety, its general duty clause reinforces the broader expectation that contractors must mitigate known dangers — especially when those dangers are as obvious and preventable as open water and open trenches.

Preventable Tragedies Are Inexcusable

In the incident referenced above, a pool shell was left filled with approximately three feet of water. The contractor ordered the water delivery and began backfilling—but did not install a temporary fence. Orange stretchy plastic construction netting was the only barrier in place when they went home for the day.

Photos in the case file even showed the homeowner’s own child playing in the pool during construction—before the fatal incident involving a neighbor’s child. This wasn’t a hidden danger. It was open, visible, and completely preventable.

Each time I review a new construction defect case, I’m reminded of how easily tragedy or costly litigation could strike any firm—including mine—if we fail to stay vigilant. I share these cases with the industry not to sensationalize, but to educate and help prevent the next avoidable fatality or business failure. Construction professionals must think beyond project schedules and material deliveries. Every incomplete structure, unsecured hazard, or overlooked detail represents a potential liability—or worse.

At The Green Scene, we take jobsite safety seriously—because we design for families. Our design center may showcase resort-style outdoor living, but behind the scenes, we follow strict safety protocols. That includes:

• Installing fencing, temporary or permanent before we add water to a vessel
• Marking and capping all exposed hazards
• Requiring all subcontractors to follow safety protocols
• Keeping neighbors safe—because our job doesn’t stop at the property line

Remember: once a pool contains more than 18 inches of water, it is legally a swimming pool. That means it must be fenced. No excuses.

The next time you walk onto a jobsite, ask yourself: If a young child wandered in right now, what could happen?

If the answer is anything other than “nothing,” fix it before you pick up another tool.

Scott Cohen is an award-winning garden artisan, licensed swimming pool, general and landscape contractor, and renowned expert in construction defect analysis. With three decades of experience designing and building luxury landscapes and pools, Scott combines artistry with technical precision to create safe, stunning outdoor spaces. A nationally recognized speaker and author of eight books, he also serves as an expert witness in construction-related disputes, providing guidance to homeowners, contractors, and legal professionals. Scott is the President of The Green Scene, known as “The Wow Factor Contractor,” specializing in innovative, family-friendly, and resort-style backyard designs.