Liability and Trail Insurance
Delaware & Lehigh Trail | Photo by Thom Carroll
Ownership of a trail by a government agency or a nonprofit organization creates a number of liability and trail insurance considerations. The primary focuses of rail-trail managers should be the safety of trail users and the minimization of risk and liability exposure. Fortunately, many rail-trails and rails-with-trails are covered by city, county or state self-insurance policies, and public liability risks from trails are small compared to the liability risks of roads, playgrounds and swimming pools.
Similarly, private landowners who allow public access to their property—as when a trail crosses or abuts private property—are also protected by recreational use statutes in all 50 states. Under these statutes, no landowner is liable for recreational injuries resulting from trail user carelessness if they have provided public access to their land for recreational purposes.
Different types of liability protection that apply to trail managers and adjacent landowners are discussed below. To read more about each type of protection, explore our full report on liability: Rail-Trails and Liability: A Primer on Trail-Related Liability Issues & Risk Management Techniques.
Risk Management
The best defense against injury or lawsuit is to design the trail for safety and develop a comprehensive management plan that includes risk management techniques. The American Association of State Highway and Transportation Officials’ (AASHTO) Guide for the Development of Bicycle Facilities features specific design standards and recognized “best practices” for the design and construction of multi-use trails.
The Manual on Uniform Traffic Control Devices (MUTCD) also provides respected guidelines for how to properly and safely mark trails. Develop a risk assessment and management plan in order to identify, resolve and record actions taken to avoid possible risks. The following guidelines are adapted from George Pring’s article, “Land Trust Liability and Risk Management,” from Exchange: The Journal of the Land Trust Alliance (1991):
- Provide leadership.
Appoint a leader to take responsibility for the plan. - Inventory hazards.
Assess the entire corridor for obvious and non-obvious hazards like—- Falls: Cliffs or embankments next to the corridor
- Impacts: Areas prone to rock slides and falling timber
- Environmental: Contaminants from environmentally hazardous materials that may also present health risks
- Roads: Unmarked intersections and adjacent traffic
- Animals
- Inventory uses.
Conduct a parallel inventory of how people will use the trail (bicycle, equestrian, motorized, etc.) and the types of accidents that could result from each activity. - Inventory the law.
Have your attorney review your state’s liability and protective laws, including recreational use statutes and court cases involving trails. - Inspect.
Conduct regular inspections (at least once a year) to assess potential hazards. Keep records of your observations and courses of action. - Mitigate.
Try to fix or reduce hazards by eliminating or isolating the problem. The trail may need to be rerouted to avoid possible conflict. Place warning signs on the corridor, and in trail maps and brochures, for any potential liabilities.
A sample “Trail Inspection Report” is available on the website for Canada’s Bruce County Trail Network in the “Dealing with Risk Management” section on page 11.
Review page 10 of Rail-Trails and Liability: A Primer on Trail-Related Liability Issues & Risk Management Techniques to learn more about risk management techniques, and read our report, Understanding Environmental Contaminants: Lessons Learned and Guidance to Keep Your Rail-Trail Project on Track, to determine how environmental contaminants should be addressed in an environmental assessment or risk management plan.
Recreational Use Statutes
When a trail intersects privately owned land, residents may be apprehensive about the prospect of allowing public use of their property for recreation purposes. Luckily, landowners are offered protection under state recreational use statutes. Some states have even extended the statute’s protection to cover public landowners. Recreational use statutes vary slightly from state to state and do not necessarily prevent landowners from being sued, but they do grant landowners basic protections.
Be sure to inform adjacent landowners that trail users wandering onto posted private property are considered trespassers under the law. Sharing this information with concerned trailside residents, many of whom are probably unfamiliar with the protection they receive under the statute, will do much to alleviate their concerns about liability. It is strongly advised that you consult an attorney knowledgeable in this area to determine the current status of recreational use statues in your state.
Read pages 7 and 8 in Rail-Trails and Liability: A Primer on Trail-Related Liability Issues & Risk Management Techniques for an overview of rail-trails and recreational use statutes, and view our full list of recreational use statutes to find information specific to your state.
Trail Insurance
Insurance, although the last line of defense, is necessary for trail owners/managers. In most cases, the trail is owned by a public entity with an umbrella insurance policy that protects municipal activities and facilities. But when non-governmental organizations own trails, they should purchase a similar comprehensive liability insurance policy. Read more about trail insurance on pages 9 and 10 in Rail-Trails and Liability: A Primer on Trail-Related Liability Issues & Risk Management Techniques.
Resources
‣ Report – Rail with Trails: Best Practices and Lessons Learned (2021)
‣ Report – Maintenance Practices and Costs of Rail -Trails (2015)
‣ Report – Rails to trail conversions: A legal review
‣ Article – Legal Research Digest: Liability Aspects of Bikeways (2010)
‣ Fact Sheet – Recreational Use Statutes
‣ Fact Sheet – Liability and Rail-Trails in Pennsylvania (2007)
‣ Report – Rail-Trails and Liability (2000)
TrailNation Collaborative
TrailNation™ Collaborative is a nationwide peer learning community from Rails to Trails Conservancy that brings together advocates, leaders and professionals from across disciplines to establish and accelerate trail networks across America. The collaborative provides proven tools, methods and resources, combined with RTC’s expertise and network of partners across the country, to accelerate the development of connected trail systems. When trails are connected across regions and states, trail networks have a proven transformative impact—they are essential infrastructure that creates thriving, healthier communities.