As of 2015, there were approximately 5.1 million in-ground pools in America. If you, as a homeowner, do not take the proper protective measures by creating barriers around your pool and backyard, your family will lose everything to a lawsuit if a neighborhood child is badly hurt or drowned after sneaking into your pool.
Yet if you are Washington leadership, and you act so negligently about border security deficiencies, about illegal trafficking that increases crime, murders, sexual assaults, and deaths to migrants along their journey, you get a congressional salary, benefits, and a big, fat pension.
There is a glaring double standard on border security regarding how common law standards are applied to American homeowners, businesses, and property owners compared to the feckless leaders in Washington.
Premises Liability and the Duty of Care
Premises liability is the area of personal injury law relating to liability for injuries occurring on the property of a homeowner, landowner, business owner, or even municipality. As the responsible party for you home, business, or property, you have the “duty of care,” which establishes the reasonable standard to which you will exercise caution and concern for risks you may present to others. Negligence is the general failure to meet this reasonable standard of care, and negligence opens you to liability in the event someone is hurt.
Americans are held to this standard whether they like it or not. If a family decides to put an in-ground pool in their fenced back yard, but do not erect a barrier surrounding the pool, this creates a liability. If the neighbor’s child hops your fence and drowns in your pool, you and your family may lose everything you have.
This is called the “attractive nuisance doctrine.” The rationale is that children are not able to fully understand certain risks, and by failing to provide barriers to dangerous activity on your property, you are responsible for their injury.
While that specifically focuses on children, American landowners owe no special duty to trespassers. However, you may still find yourself on the wrong end of a lawsuit in certain cases where you knew trespassing was occurring.
“Discovered” trespassing is when a property owner knows about trespassing (e.g., this neighbor cuts across my land visiting his relatives up the road). The property owner has the duty of care towards these individuals, unlike “undiscovered” trespassing.
Do you shoot clay pigeons every Sunday afternoon? You have the responsibility to warn regular trespassers of the danger. Did you dig a hole for an outhouse but haven’t built the structure yet? You have a duty to caution the known trespassers from this hazard. If you or any everyday American fail to meet these standards, you may lose everything you have in a lawsuit from someone who suffered a severe or fatal injury.
Washington Doesn’t Play By the Rules Americans Must
Here’s the disconnect between Washington’s standard and every homeowner or landowner’s civil liability: Washington knows there is a problem. Both parties do.
It has been reported and tweeted aplenty that Barack Obama, Chuck Schumer, and Hillary Clinton are all on record with quotes calling illegal immigration and our border security a problem. “Immoral” barriers have already been constructed near many border cities, with great improvements in public safety. Washington knows this. Don’t forget Congress just appropriated $500 million to build Jordan a border barrier between neighbors Syria and Iraq.
Congress knows the dangers. They know the statistics. Homeland security reporter Sara Carter found two Bangladeshi illegal immigrants within 15 minutes of arriving at the Texas border. (Bangladesh has roughly the Muslim population of Saudi Arabia, Afghanistan and Iran combined and a rising problem with Islamic extremism.) Surely Congress knows others are arriving from similar high-risk countries where Islamic extremism is on the rise.
Congress knows that synthetic opioids overdoses have skyrocketed to nearly 30,000, when they were around 5,000 in fiscal year 2014. In case Congress hasn’t done the rough math on that delta, every 45 days, more Americans are dying from the spike in synthetic opioids than died from the 9/11 attacks. Say this is not a crisis, but this equates to more than eight 9/11 incidents a year. The border supply chain must be stopped.
Who Owns the Liability Now?
President Trump most certainly owns the federal government shutdown over the lack of a consistent border fence. He made the threat, he said he was happy to own it, and his hand was called.
But does he own the liability in everyday Americans’ eyes? At what point can he appear to be the responsible leader addressing an important crisis? We went to wars over one 9/11, and we can’t even mobilize funding and resources to stop the inflow of heroin and fentanyl across our border and ports of entry to prevent the same number of American deaths every 45 days.
The longer this goes, the more it looks like the Washington outsider is refusing to abdicate his presidential “duty of care” for the American public, and congressional leadership looks like slimy politicians backtracking on their prior support for border security. The liability for negligence is theirs. You don’t have to support a shutdown to begin to see the light it has shined on congressional negligence.
Common law standards should be common sense for lawmakers. If you or I acted this way with our homes, property or business, we would be sued for everything we own for our gross, perhaps even wanton, negligence. If you act this way in Congress, however, you get a salary, benefits, retirement, and a spot on the morning shows.