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Public access to land for hiking, bird watching, hunting, and other recreational activities raises the possibility of a visitor getting injured and for the owners or managers of the land to then be held liable. Landowners and public access easement and lease holders can take practical steps to minimize the risk of liability.
If a claim against an organization for serious injury or death in association with public use of land in their control is for some reason not barred by immunity or if the organization’s insurance coverage is not sufficient to satisfy the verdict or settlement reached, the organization’s good work may be jeopardized. Its endowment funds, lands, or other assets could all be placed at risk. Local governments are able to draw from their tax base in the event that they are held liable for injury or death, but they, like charitable organizations, will wish to avoid such situations.
State laws designed to encourage opening lands to public use—whether hiking, biking, birdwatching, hunting, fishing, or other activity—substantially protect landowners, easement holders, and leaseholders from liability due to injury or death. However, the best defense for those providing public access is preparedness: posting signs, obtaining releases, requiring indemnity, securing insurance coverage, and taking steps to warn users of potentially dangerous conditions.
After a brief review of statutory protections, this guide addresses a variety of legal and other means to avoid or minimize liability.
Since most of the strategies and protections described in the following sections apply equally to anyone closely connected to the land, whether they own the land or hold an easement or lease providing for public access, this guide will occasionally use the term land manager to cover all of these possible parties.
Pennsylvania’s Recreational Use of Land and Water Act (RULWA) limits landowner (and easement and leaseholder) liability for personal injury and property damage if they make their land available to the public for recreation. The purpose of the law is to encourage landowners to allow recreational users onto their properties by limiting the traditional duty of care that landowners owe to entrants upon their land. RULWA 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.) Landowners receive this protection as long as no charge is required (or only specified allowable charges are required) for entrance.
WeConservePA’s six-page Guide to Pennsylvania’s Recreational Use of Land and Water Act provides a fuller description of RULWA protections and rules for receiving those protections. It includes brief reviews of court cases in which RULWA was raised as a defense. WeConservePA’s Overview of Pennsylvania’s Recreational Use of Land and Water Act provides a brief (two-page) description of RULWA.
Other statutes providing liability protections include the Rails to Trails Act, the Equine Immunity Act, and—for government—the Sovereign Immunity Act and Political Subdivision Tort Claims Act. This statutory protection is reviewed in the WeConservePA guide Statutory Protection from Liability Related to Public Access.
Land managers can greatly reduce liability risk by warning recreational users whenever they become aware of a potentially dangerous condition, especially one that a recreational user might not notice. This may be as simple as:
Temporarily closing an area to public use may be a reasonable action to guard against a passing threat. Avoiding potential liability is always better than defending claims (even if immunity may be available under state statutes).
RULWA or other statutory immunity may result in a court finding of no liability if someone makes a claim of personal injury associated with recreational use of the land. However, thousands of dollars may be spent in court costs and legal fees to achieve that result.
Why would someone commence a claim that RULWA clearly guards against? In other words, why would someone start a legal case that they most likely can’t win? Attorneys representing injured persons know that an insurance company may be willing to pay to settle a case rather than incurring the cost of defense.
To maximize and optimize liability protection, including avoiding the legal costs of having to prove that one is not liable, a person or organization might pursue a number of tools:
These tools are complex in their details and in how they interact and overlap with one another. Depending on the situation, one or more of the tools may not be available or appropriate; also, each tool may not be needed to achieve sufficient protection. The person or organization seeking to protect itself must review the particular facts and circumstances to determine whether its needs are being met.
[The WeConservePA guide Indemnity Agreements and Liability Insurance looks at the use of indemnity for a range of conservation transactions.]
An indemnity is a legal device to shift the risk of loss or liability from one person to another. For example, the land manager may want to shift the risk of liability associated with an organized race to be held on a trail to the event sponsor. An indemnity is often coupled with an agreement to defend—a phrase typically used is “indemnify, defend, and hold harmless.” The agreement to defend is important because, while statutory immunity may ultimately result in a finding of no liability, money will be spent in court costs and legal fees to achieve that result.
In the case of trail and other public access easements, landowners may want to shift to the easement holder the risk of liability arising out of an injury to a recreational user. The Model Trail Easement Agreement takes the approach that, as to the trail easement area, the landowners should take responsibility for the acts and omissions of the landowners and anyone else who is on the property at the express or implied invitation of the landowners. These are referred to as “Owner Responsibility Claims.” The safety of family, friends, and people providing services or making deliveries to the landowners remains the responsibility of the landowners just as it would if no access easement had been granted. Liability for bodily injury or property damage occurring within the trail easement area (other than Owner Responsibility Claims) is allocated to the easement holder including the cost of defending the claim on behalf of both the landowners and the easement holder.
Land managers may require indemnity agreements from schools, clubs, or other groups using a trail on a regular basis, or from an event sponsor who desires use of the trail for a run or competitive event. For example, land managers may be able to shift the risk of a student athlete being injured to the local school district by requiring an indemnity as a condition to allowing the cross-country team to use the trail system for daily practice. These indemnities are important because, as discussed in the next section, they provide access to the indemnifying party’s insurance coverage.
[The WeConservePA guide Indemnity Agreements and Liability Insurance looks at the use of liability insurance in conjunction with indemnification agreements.]
The availability of the statutory defenses described above may insulate land managers from liability for claims arising from recreational use; nevertheless, a claim asserted in court needs to be defended and, until dismissed or settled, attorneys’ fees and other costs will be incurred. Insurance coverage can mitigate the cost of defending the claim as well as any liability that may ensue.
Individuals and families typically carry policies of homeowners’ insurance, which include coverage for bodily injury (including death) and property damage occurring on or about the property owned by the persons named in the policy, called the “named insureds.” Similar coverage for injury and damage is furnished to organizations, whether for profit or nonprofit, under commercial general liability policies. Submitting a claim promptly to the liability insurer will ordinarily result in the insurer engaging an attorney to defend the named insureds.
The following subsections explain how liability coverage can be extended to persons other than the named insured on the policy (for example, by extending an easement holder’s liability coverage to protect the landowners as well) and how to bolster the protections offered by an indemnity backed by insurance coverage.
If a recreational user asserts a claim against the landowners, and if another party (for example, the holder of a trail easement) has indemnified the landowners for liability arising from such claims in the easement document, then the landowners (and their insurance company) may be able to call on the easement holder’s insurance company to defend both the landowners and the easement holder. The easement holder’s insurer will be bound to do so only if the easement holder’s liability policy covers contractual liability (liability to others under an indemnity) as well as coverage of the claim asserted by the recreational user. The same applies if responsibility for that claim was allocated to the landowners in the easement document. In that case, the easement holder (and its insurance company) would be able to call on the landowners’ insurance company to defend the claim on behalf of both if contractual liability coverage is included in landowners’ liability coverage. Liability policies generally exclude contractual liability from basic coverage, but it can be added back in by endorsement.
Another way to furnish liability coverage to persons not originally named in the policy is to have the insurance company amend the policy by endorsement to name them as additional insureds. The endorsement is supposed to provide the additional insureds with the same coverage as the insured has with respect to a particular site or occurrence; however, endorsements vary widely and each must be carefully reviewed to see that the anticipated coverage is actually provided.
Subrogation is an equitable principle that allows someone who pays an obligation out of their own funds to seek reimbursement from one or more others who are responsible for some or all of the amount paid. In the insurance context, an insurance company that pays or defends an insured’s claim may then step into the insured’s shoes to assert a subrogation right against other potentially responsible parties to recoup some or all of the amount paid or spent in connection with the claim. For the unwary, this may have surprising consequences.
Using our earlier example, a school district indemnifies the owner of a trail for injuries that might occur to its cross-country team athletes who use the trail for daily practice. The school district has its insurer add contractual liability coverage to back this indemnity. If an injury then occurs, the school district’s insurer might end up paying a claim. The school district’s indemnification of the trail owner will protect the owner from the athlete’s claim or an attempt by the school district to shift liability. However, the trail owner is not protected from the school district’s insurer. Depending on the facts and nature of the claim, subrogation may allow the school district’s insurer to try to recover some of the money paid to the athlete from the trail owner.
In other words, even if a group indemnifies a landowner and agrees to pay any claim against the landowner via the group’s contractual liability endorsement, the group’s insurer may still sue the landowner to recover some of its costs. To bar that suit, and complete the protection intended by the indemnity, a waiver of subrogation should be requested as part of the indemnity package. By waiving subrogation, the indemnifying party is waiving the right to sue the indemnified party for subrogation. Because the indemnifying party has waived that right, the insurance company cannot assert it in the indemnifying party’s place.
A certificate of insurance is issued by an insurance company to the requesting party (called a certificate holder) to evidence the types and limits of coverage carried under policies issued by that company to the named insured. Certificates of insurance will list endorsements to the commercial general liability insurance policy such as contractual liability, additional insured status, and waiver of subrogation. It is the customary form of proof of insurance provided between parties to a transaction. Note, however, that a certificate of insurance is evidence of coverage only as of the date it is issued. Coverage may lapse, expire, or be terminated at any time in accordance with the agreement between the insured and insurer.
So as not to incentivize claims against a landowner or easement holder, none of the model trail easement documents provided by WeConservePA reference insurance responsibilities. (Attorneys know that insurance companies will often settle a claim rather than go to the expense of defending against a claim in court; referencing insurance coverage in an easement document may advertise that a party has substantial insurance coverage, and thus there might be money available even if a claim is somewhat weak.)
If the landowner will not enter into an easement document without a written commitment from the easement holder to carry certain kinds of insurance with certain minimum requirements, this can be done outside the recorded document, perhaps with the stipulation that the easement holder is not permitted to transfer the easement to another entity without obtaining an assumption of that agreement.
Another method to control risk is to obtain from recreational users a signed statement—called a release—that absolves land managers and others (for example, activity sponsors) from any responsibility for personal injury suffered by that individual arising from the recreational use. A release signed by a legally competent adult is highly effective in Pennsylvania. People under the age of 18 are, however, not legally competent to waive their rights to seek compensation for injury.
The WeConservePA guide Release of Liability Form discusses at length releases, assumption of risk agreements, and covenants not to sue. WeConservePA developed the accompanying Model Release of Liability Form to help nonprofits minimize the risk of being held responsible for injuries or property damage associated with organizing volunteer, educational, recreational and other events and activities (or opening up property for the same).
The commentary to the Model Trail Easement Agreement notes the option to require delivery of signed releases as a condition to make certain uses of the trail. For example, the easement may not grant the easement holder the right to conduct runs and other competitions without the landowner’s consent for that particular event. This provides the landowner the opportunity to require releases and, perhaps, an indemnity from the event sponsor, as a condition to that particular use of the trail area.
Another way to obtain releases is for the landowner or easement holder—depending on how the trail easement is written—to allow certain activities that may impose greater risk to be limited to members of a user club, for example, an equestrian or snowmobiling association. Club members must carry a membership card when using the trail area and the release can be printed on that membership card.
Prudently crafted trail and other recreational use easements can decrease the potential risk of liability and costs to land managers.
Given the strong recommendation to take reasonable steps to guard against injury, some may find it surprising that the model trail easement documents provided by WeConservePA do not allocate responsibility to inspect for, or warn against, potentially dangerous conditions or to perform whatever maintenance or repair may be necessary or advisable to correct dangerous or defective conditions. Responsibility is not mentioned at all in the short-form Model Grant of Trail Easement and in §5.02 of the long-form Model Trail Easement Agreement, any duty to inspect, warn against or correct defective or dangerous conditions is expressly disclaimed.
There is a tactical reason for these approaches. Information in a recorded document is available to everyone, including the attorney for the person allegedly injured in the trail easement area. The model easement documents purposely omit provisions that may incentivize a lawsuit or provide a path to get around the statutory defense of immunity. A covenant that imposes an affirmative duty to inspect, or warn against, or repair defective conditions within the easement area may provide an avenue for a plaintiff’s attorney to claim that the injured recreational user had a reasonable expectation, based upon the terms of the easement document, that safe conditions would be maintained. Whether or not ultimately successful, the issues of fact and law become more complicated and, instead of being quickly dismissed, the claim may require litigation or a substantial cash outlay to settle.
If the landowners and easement holder want to allocate, as between themselves, rights and responsibilities pertaining to the safety of the easement area, they can do so but they are well advised to keep the content of that agreement off-record so as not to give rise to a claim that a recreational user relied upon that promise. A mention of the off-record document in the recorded easement document should be sufficient to put a successor to the landowners or easement holder on notice to inquire as to the contents of that document.
In WeConservePA’s Model Trail Easement Agreement, liability for bodily injury or property damage occurring within the trail area is generally allocated to the easement holder, in other words, the easement holder indemnifies the landowner. In contrast, the indemnity provision in WeConservePA’s Model Grant of Conservation Easement and Declaration of Covenants has the landowners indemnify the easement holder. Since with a conservation easement the easement holder generally has no care, custody, or control of the land, this is entirely sensible and appropriate.
When an easement for public access is granted as part of a conservation easement, the easement holder gains some control over the portion of the land available for public recreational use. This merits a review of who should indemnify whom for what. The conservation easement indemnity provision could be adjusted to simply make the indemnification mutual; however, this fails to take into account that the easement holder’s indemnity ought to be limited only to specific claims related to public use in the publicly accessible area. A better alternative is to add to the conservation easement a provision—applicable to the public access area only—similar to the indemnity included in the Model Trail Easement Agreement, which limits Holder’s responsibility to the trail area only (and carves out from that overall responsibility matters related directly to the landowner’s actions). Another alternative is to establish the conservation easement and trail easement using separate documents, each with indemnification provisions appropriate to the different purposes of the easements.
Greater statutory liability protections and the power of taxation make it less risky for public entities to own land or hold easements for recreational public use than private entities.
In addition to RULWA and other statutory defenses available to land managers, other layers of protection are available only to state and local governments. The Commonwealth can assert immunity or limited liability under the Sovereign Immunity Act and counties, townships, and other municipalities can similarly assert immunity or limited liability under the Political Subdivision Tort Claims Act. The availability of strong defenses can be expected to result in the quick dismissal of claims that are not well grounded.
Regarding public access easements, the private landowner has the same statutory protections from liability available to them whether a nonprofit organization or government is identified as the holder of the easement. However, in regard to liability risks to the easement holder, there are compelling reasons to favor governmental entities, rather than nonprofit organizations, as the easement holder.
In the case of a municipality owning the trail or holding a trail easement, if a court or jury finds liability, the burden of that liability can be borne by the public generally. However, in the case of a nonprofit, the assets of the nonprofit, including charitable contributions and funds set aside for recreation and conservation, will be exposed to collection of a judgment. Even if proceeds of insurance policies are available to pay the claim, the nonprofit will undoubtedly bear the burden of increased premiums (if it is able to obtain insurance at all) for a long time to come. The public uses streets and sidewalks owned or maintained by government all the time. The costs of defending or insuring against claims arising from public use are not likely to change very much regardless of whether the injury occurred on a trail or on a sidewalk. Thus, the incremental cost of assuming responsibility for trails in addition to other public rights of way is relatively insignificant. On the other hand, the cost of defending or insuring claims arising from public use could have a paralyzing and ruinous impact on a nonprofit and the nonprofit’s mission.
If an organization is not satisfied with the protections from liability discussed above and wants to isolate its charitable assets from exposure to public access claims, another strategy to consider is the creation of a separate, but controlled, entity to hold the land and easements available for public use. This approach is described in the guide Separate Entity to Hold Risker Properties.
