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A Primer on Trail-Related Liability Issues & Risk Management Techniques

by Rails to Trails Conservancy

This report concludes that trail-related liability is primarily a management issue. Laws are in place to protect all parties from unwarranted lawsuits and the rest is up to proper design, maintenance and management.

The need for outdoor recreation areas has increased as our population has grown, as our built environment has consumed more open space, and as people have become more aware of the need to maintain a healthy level of physical activity.

One type of open space that has been receiving increasing amounts of attention and funding is trails. Trails are being built in urban, suburban, and rural areas. They are being built on former rail corridors as well as in vast public lands. People use trails for: walking, jogging, biking, in-line skating, skiing; even equestrians, snowmobilers and people in wheelchairs use them.

With all these uses in a variety of settings come a host of concerns about liability issues. Public agencies that are considering building a trail may worry about a user being injured on the trail. Similarly, private landowners who own land adjacent to a trail may worry about trail users wandering off the trail, onto their land and injuring themselves or causing property damage. Or landowners may like to open up their land for recreational use but are concerned about the liability they may incur in doing so.

Fortunately, most states have laws that substantially limit public and private landowner liability. Recreational Use Statutes protect private landowners who want to open their land to the public for recreation free of charge. In some states, these statutes serve to protect public agencies as well. Public agencies, if not protected by the Recreational Use Statute, are often protected by governmental immunities or possess limited liability under a State Tort Claims Act. Private landowners who have land adjacent to a trail are also protected by trespassing laws. For all these parties, insurance can provide protection as well.

While concerns about liability are understandable, real-world experience shows that neither public nor private landowners have suffered from trail development. Adjacent landowners are not at risk as long as they abstain from “willful and wanton misconduct” against trespassers such as recklessly or intentionally creating a hazard. Trail managers minimize liability exposure provided they design and manage the trail in a responsible manner and do not charge for trail access. The table below provides a summary of the protections available and who they apply to.

This report concludes that trail-related liability is primarily a management issue. Laws are in place to protect all parties from unwarranted lawsuits and the rest is up to proper design, maintenance and management.