Encouraging Trail Access Through Limited Liability Laws

Communities across the U.S. are working to convert abandoned railway beds to trails as part of the national “rails-to-trails” movement and establishing other bike-walk linear parks and greenways. Linear trails benefit individuals and their communities. Beyond recreation and immediate health benefits, they serve as important pedestrian and bike corridors where people access schools, jobs, food, transit, and community centers. They can provide tree canopy and refuge for wildlife. They are a source of pride for communities, contribute to increased property values and quality of life.

Unfortunately, providing neighborhood access to those trails and greenways can be a challenge This is particularly true in established communities where pre-established private property boundaries make access to trails/bikeways/greenways/other recreation challenging. Questions that need to be addressed when establishing neighborhood trail access through private property include available space, privacy, parking, increased foot traffic, improvements, maintenance, and landowner liability. Here we focus on the concern of landowner liability.

Liability Concerns

Among other things, concern and confusion over landowner liability provide disincentive to establishing shared-use access points on or through private property. When private property owners consider granting recreational access through their property, the question of liability remains, “If I let people walk through my property and someone gets hurt, will I be liable?” Such questions often delay or prevent private landowners from granting neighborhood access. Enabling neighborhood access is anticipated to be a growing issue as trails are built around the country.

Limited liability laws can provide statutory protection for property owners who open their land to the public. They remove a significant disincentive to providing trail access on or through private property. Lowering barriers to access is critical for communities that are establishing rail-trails, greenways, parks, and similar areas used for recreational purposes. While it doesn’t solve all the issues of access, it is an important tool in the tool chest for encouraging and enabling trail access and use.

Indiana Limited Liability Legislation for Access to Trails, Parks and Greenways

Thanks to sponsorship by Representatives Wes Culver and Carey Hamilton, Indiana House Bill 1115 limits the liability of landowners for recreational access to trails, parks, and greenways. Important: the Bill does not require landowners to provide access through their property to access a trail or greenway. Rather, it limits landowner liability if someone passes on or through their property for this purpose and is injured, similar to landowner immunity for other recreational purposes such as hunting and fishing.

Indiana has already limited landowner liability for hunting, fishing, and other recreational uses. HB 1115 includes access to rail-trails, parks, and greenways.

Nora and the Monon Trail

The Indianapolis northside suburb of Nora provides a case study for the impact of disconnected neighborhoods on trail access. Nora is the proud birthplace of the world-class Monon Trail & Greenway. Paved in 1999, a 3-mile section of the trail runs north to 96th Street and south to the White River (the trail extends for several miles in both directions beyond Nora). It traverses the edges of suburban neighborhoods, the Indiana School for the Blind and Visually Impaired, nearby schools, and busy Nora Center.

Private property abuts the trail (green); properties in adjacent neighborhoods (orange) lack access, unless provided through private property.

As is typical with suburban communities, many of Nora’s neighborhoods are disconnected from each other, and from a traditional urban street grid and pedestrian network. When neighborhoods exist prior to trail development, pre-established private property boundaries make access to trails/bikeways/greenways/other recreation challenging to retrofit.

Nearly all of Nora’s single-family residential neighborhoods adjacent to the Monon Trail lack formally established public access (approximately 560 households). In these neighborhoods, trail access occurs on or through private property, or not at all. Families might live within spitting distance, but have to drive to trailheads to get access.

The Monon Trail is Nora’s primary pedestrian corridor. Landowner liability is a concern the Nora Alliance is working to alleviate because enabling trail access is a key component to connecting people to nature, recreation, schools, transit, food, jobs, and public services in Nora Center.

Similar State Legislation

Similar state legislation to promote recreational use of land and water are highlighted below.

Pennsylvania Recreational Use of Land and Water Act
Pennsylvania’s Recreational Use of Land and Water Act provides statutory protection for property owners who open their land to the public. The Act limits the liability, resulting from personal injury or property damage, of landowners who make their land available to the public for recreation free of charge. The purpose of the law is to encourage landowners to allow hikers, fishermen, and other recreational users onto their properties by limiting the traditional duty of care that landowners owe to entrants upon their land. So long as no entrance or use fee is charged, the Act provides that landowners do not have to keep their land safe for recreational users and have no duty to warn of dangerous conditions. This immunity from liability does not protect landowners who willfully or maliciously fail to warn of dangerous conditions. Here is a summary of the law and thoughts on how it could be strengthened:
http://conservationtools.org/guides/81-Recreational-Use-of-Land-and-Water-Act

Washington State Beach Access
Although it does not specifically address private property limited liability, cities, and counties in Washington State are required to develop Shoreline Master Programs (SMPs) that regulate development within areas near marine and freshwater shorelines. These SMPs must contain “a public access element making provisions for public access to publicly owned areas.” The WCZMP addresses public access through the local government public access plans required for SMPs, by developing and providing easily accessible information on existing public access to shoreline planners and the public. The Coastal Program also works with state agencies, local governments, and nonprofits to increase public access through land acquisition.
http://www.beachapedia.org/State_of_the_Beach/State_Reports/WA/Beach_Access

Maine Landowner Liability for Recreational Activity
Maine has a strong landowner liability law which protects landowners from suits by people who get hurt on their land while they are engaged in some recreational activity. The landowner is protected whether or not permission is given to using the land (Maine Revised Statutes Section 59a). This protection removes a strong motive for landowners to forbid people to use their land.
http://www.maine.gov/ifw/hunting-trapping/accessing-private-land/landowner-liability.html

California Rights and Obligations of Owners
An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.
http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=846

Indiana Wildlife Regulation – Restrictions on Landowner Liability
Indiana provides statutory protection for property owners who open their land to the public for uses, including hunting, fishing, trapping, swimming, camping, hiking, sightseeing, and other purposes. The Act limits the liability, resulting from personal injury or property damage, of landowners who make their land available to the public for recreation free of charge. The purpose of the law is to encourage landowners to allow hunters, fishermen, and other recreational users onto their properties by limiting the traditional duty of care that landowners owe to entrants upon their land, so long as no entrance or use fee is charged. This immunity from liability does not protect landowners from the attractive nuisance doctrine or liability for injury to a person or property caused by a malicious or an illegal act of the owner or occupant. A similar law exists for limited liability arising from agritourism activities.
http://iga.in.gov/legislative/laws/2017/ic/titles/014/#14-22-10

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