# Protecting liability of trails on personal property



## bank5 (May 7, 2008)

I'm building some hiking trails on my property. Is there anything I should do to protect myself from a liability standpoint? I have home owner's insurance plus umbrella insurance.


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## Kronk (Jan 4, 2004)

Check state laws about recreation on private land. Also ask your insurance company of what they would cover.
I have heard there is a liability difference if you charge a fee as opposed to free access, but that was in regard to an apple orchard in Indiana where something was being sold.


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## Cotharyus (Jun 21, 2012)

No trespassing signs. If they aren't supposed to be there to start with, there's really nothing they can do if they get hurt. But, as with all legal questions, it's probably best to consult an expert.


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## Harold (Dec 23, 2003)

Kronk said:


> Check state laws about recreation on private land. Also ask your insurance company of what they would cover.
> I have heard there is a liability difference if you charge a fee as opposed to free access, but that was in regard to an apple orchard in Indiana where something was being sold.


This. Every time I have ridden on trails on someone's private property (stuff that's open to the public, anyway, and all charged a small fee), I have had to sign a release. A lawyer may need to be involved to help you with liability and risk.


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## CS2 (Jul 24, 2007)

bank5 said:


> I'm building some hiking trails on my property. Is there anything I should do to protect myself from a liability standpoint? I have home owner's insurance plus umbrella insurance.


Excellent question, that is a commercial risk. See you insurance agent about a CGL, commercial general liability policy. Good luck



Kronk said:


> Check state laws about recreation on private land. Also ask your insurance company of what they would cover.
> I have heard there is a liability difference if you charge a fee as opposed to free access, but that was in regard to an apple orchard in Indiana where something was being sold.


That type of activity is excluded on a homeowners policy. They probably won't pay for a defense either. As in above get a GGL.



Cotharyus said:


> No trespassing signs. If they aren't supposed to be there to start with, there's really nothing they can do if they get hurt. But, as with all legal questions, it's probably best to consult an expert.


Unfortunately that is not true. If someone gets hurt you are liable. The insurance company does not owe you a defense if the trails are excluded, and they are. I do this for a living.

We can sit and argue all day long on this. But lots of really good people get screwed because they didn't read their policy. Talk to your agent.


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## Cotharyus (Jun 21, 2012)

CS2 said:


> Unfortunately that is not true. If someone gets hurt you are liable. The insurance company does not owe you a defense if the trails are excluded, and they are. I do this for a living.
> 
> We can sit and argue all day long on this. But lots of really good people get screwed because they didn't read their policy. Talk to your agent.


Oh, I won't argue it all day. I'm well aware it's excluded by insurance policy, and that technically you are liable if someone gets hurt on your property, in theory. In theory though, if you properly post the property with no trespassing signs, and have a reasonable fence, then it can, in fact, become a matter of why, exactly, they were on your property to start with. This is like marking old wells or mine shafts with signs, and placing impediments around them and closures. If you do all that, and someone still falls in, they've obviously put forth some effort to get there. At some, a person must become responsible for their own choices and actions.

Oh, no, wait. I forgot. Not any more.


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## Mark E (Feb 7, 2006)

It's been alluded to, but checking into the recreational use statutes in your state is a crucial step. Some states have strongly worded rec use language designed to protect property owners, others not so much. An in-state attorney with relevant experience is the best resource for addressing your concerns -- an insurance agent will likely recommend an expanded policy but that may not be your only or best option.


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## evasive (Feb 18, 2005)

^this. Blanket statements don't apply because of the wide variability of state laws. Recreation and access laws can vary widely, even within regions.


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## Woodman (Mar 12, 2006)

Lots of good info here and I will jump into the conversation. I am likely the most experienced posting here on the topic of liability related to trails: I have presented on the topic of risk management for trails at numerous trail related conferences (including IMBA summits several times) and have served as an expert consultant on many trail related lawsuits.

Checking your states Rec Use Statute is definitely the place to start. Many of those state that if a land owner allows recreation to the public on private lands at no cost, the owner of said land has no more "duty of care" than those trespassing. In cases of trespassing, the injured generally must prove the owner intended to harm which would be very difficult. In general, land owners and public land managing agencies must be proven to be grossly negligent to be held liable in a lawsuit. 

Yes, charging for recreation on private lands greatly increases your risk and exposure. 

You noted hiking trails, not mountain biking trails (despite this being a mtn bike forum). Hiking trails and hiking as an activity generally have lower risk due to much lower accident rates and less severity of injury. I was however an expert in a case against a YMCA camp and a hiking injury. Case went to trial but then settled half way through and favorable for the defendant.

I would suggest there would be a more than acceptable level of exposure for you given the trails you develop are appropriately designed and built. Insurance is always a good idea, and should not be that expensive.

Woody Keen- Trail Wisdom LLC


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## bank5 (May 7, 2008)

I appreciate the replies and sent a note to my insurance company. Seems like many different perspectives, but I'm sure it depends on local law and how the law is interpreted.



CS2 said:


> Excellent question, that is a commercial risk. See you insurance agent about a CGL, commercial general liability policy. Good luck


Why is it a commercial risk if I won't be making money off of it or even giving any permission to use my land? Say I rake some leaves to make a path down to the brook. Someone illegally trespasses and gets injured. I would need CGL because I raked a path, but I wouldn't need it if I hadn't raked a path?


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## slapheadmofo (Jun 9, 2006)

This is how they run it in MA - you're supposedly pretty much in the clear with the exception of "wilful, wanton, or reckless conduct'. So, no trails with punji pits, etc. 
Though I'm sure a lawyer would have a field day with the definition of 'reckless'.

https://asci.uvm.edu/equine/law/recreate/ma_rec.htm


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## CS2 (Jul 24, 2007)

bank5 said:


> I appreciate the replies and sent a note to my insurance company. Seems like many different perspectives, but I'm sure it depends on local law and how the law is interpreted.
> 
> Why is it a commercial risk if I won't be making money off of it or even giving any permission to use my land? Say I rake some leaves to make a path down to the brook. Someone illegally trespasses and gets injured. I would need CGL because I raked a path, but I wouldn't need it if I hadn't raked a path?


You don't have to make money to be a commercial risk. The reason I suggested a commercial policy is that type of risk is excluded on your personal policy. But you can pick up coverage on a commercial policy. That's what I do all day. You can't believe all the people getting sued and finding out they have no coverage. Talk to a pro and see what they have to say. It can't hurt. Good luck


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## PHeller (Dec 28, 2012)

This is an awesome thread.


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## bank5 (May 7, 2008)

I just talked to my insurance agent and she said the trails are fine. She said if I was building something more dangerous (like a bike jumping trail) then they would want more information. 

I also asked about our swings -- they're not visible from the road and we supervise children when ever we use them. She said that's fine too. We don't have a trampoline, but she said if we got one, we would need PELP (or something like that).


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## CS2 (Jul 24, 2007)

Y


bank5 said:


> I just talked to my insurance agent and she said the trails are fine. She said if I was building something more dangerous (like a bike jumping trail) then they would want more information.
> 
> I also asked about our swings -- they're not visible from the road and we supervise children when ever we use them. She said that's fine too. We don't have a trampoline, but she said if we got one, we would need PELP (or something like that).


This is what we tell our future clients. Ask your current agent if he or she will put it in writing you are covered. If they don't then you are not. It's just that simple.


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## bank5 (May 7, 2008)

CS2 said:


> This is what we tell our future clients. Ask your current agent if he or she will put it in writing you are covered. If they don't then you are not. It's just that simple.


Seems excessive to me. I can see if you're in the business of selling insurance, that no amount of insurance is enough insurance...but where does it end? Do I also need to have in writing that I may build a snow fort or have a sledding trail if it snows this winter?

It's not something I'm going to be all that concerned about.

First: someone would have to trespass and get injured
Second: They would need to decide I was liable and want to sue (so I was liable for them tresspassing and raking leaves on my land)
Third: An attorney would need to be willing to take the case. (They aren't going to take the case unless they think they can win and make a lot of $)
Fourth: My insurance company, Amica (rated one of the top in the country) would need to lie and decide to screw me over for peanuts
Fifth: I lose both cases (to the tresspasser and to Amica)

Do you have any references to cases where the tresspasser won?


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## ABud (Feb 12, 2012)

Like CS2 has stated will your insurance company cover your defense cost? The law is unimportant to bottom feeding PI attorneys. It's called the shakedown if they smell money (do you have assets?) they will make a case often for a quick dialing for dollars settlement which in most cases is far cheaper then defending these laws. If you have a good insurance policy you may defend the law on principle and that ain't cheap.


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## ABud (Feb 12, 2012)

hey I noticed your handle is "bank5". I'm guessing you got assets. I suggest ensuring a good level of insurance. Call CS2


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## ABud (Feb 12, 2012)

This Woman's Pit Bulls Killed A Beagle, Now She's Suing The Dead Dog's Owner


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## Cotharyus (Jun 21, 2012)

ABud said:


> This Woman's Pit Bulls Killed A Beagle, Now She's Suing The Dead Dog's Owner


She has to pay for that fence that's required to secure her dangerous dogs properly somehow man. (this, by the way, is exactly the kind of case that people need to look at and understand what court reform is, and why we need it.)


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## bank5 (May 7, 2008)

ABud said:


> Like CS2 has stated will your insurance company cover your defense cost? The law is unimportant to bottom feeding PI attorneys. It's called the shakedown if they smell money (do you have assets?) they will make a case often for a quick dialing for dollars settlement which in most cases is far cheaper then defending these laws. If you have a good insurance policy you may defend the law on principle and that ain't cheap.


Even if I don't have assets, they could garnish wages. And the PIA would prefer I have a very large insurance policy that covers whatever I am being sued for.

I know a PI attorney and her firm only works for a percentage of what is awarded (I believe most do this). So they only take cases that they think they'll settle/win and where the payout will be very big (millions). If they take on a big case and lose, it could bankrupt the company. If they take on a lot of "I broke my leg while breaking into your house" type cases they won't survive either.



ABud said:


> This Woman's Pit Bulls Killed A Beagle, Now She's Suing The Dead Dog's Owner


And I was just worried about a couple hiking trails. Now I need to worry about my neighbors getting injured by their own dogs while trespassing on my property!


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