Landowners Adjacent to Public Rights-of-Way Obtain Liability Immunity
Oregon law used to hold landowners who lived next to public rights-of-way liable for injuries that happened by those using or working on the rights-of-way. A series of meetings with city government and advocating with state legislators led to the law being overturned, and homeowers are no longer liable.
Nov 2008: Don Baack talked about the liability issue. Glenn Bridger and John Gould from Hillsdale will be at our next meeting, along with Brian Russell. The Oregonian ran a very supportive article about the liability problem on Thursday Nov. 20th.
Feb 2009: SWTrails PDX has been meeting with PBOT staff to work on the liability issue. PBOT proposed relabeling our SW urban trails “recreational trails” as this will protect them from liability. They want to be sure this is a true reading of Oregon State law on the matter as well as what it means in terms of funding trail projects. The Oregon constitution prevents gas taxes from being spent on anything called “recreation”. They question where funding would come from to replace signs, rebuild trails, etc. In addition, they want the trails to be maintained by SWNI and SWTrails PDX forever. SWTrails PDX believes the trails should be maintained by the City as they are a key component of our pedestrian infrastructure. These matters continue to be discussed and we will update you next month.
May 2009: SWTrails PDX presented a draft position paper to resolve the liability situation for trails located in unbuilt rights-of-way. SWTrails PDX requests the SWNI board to support this request in policy change.
1. The City of Portland should assume liability for all the unbuilt rights-of-way in the city of Portland. Based on discussions we have had thus far, it appears that by classifying any trails on these unbuilt rights of way as “Recreational Trails” will eliminate most lawsuits. It is a small step to back up this legal shield with assurance that the City of Portland will backstop any lawsuits that are not intercepted by the legal language of the Oregon Statute on recreational use of lands.
2. All trails on unbuilt rights-of-way shall obtain the appropriate permit as determined by the proper authority.
3. All trails having a permit shall be inspected.
4. All trails on unbuilt rights-of-way shall be maintained by the City of Portland, with the support of volunteer organizations where such exist or can be recruited.
April 2009: Don Baack and Lee Buhler talked about the SWNI board meeting discussion about the liability motion approved by SWTrails PDX last month. The SWNI Board tabled the motion after a lengthy discussion and requested SWTrails PDX to refine the motion.
June 2009: Ray talked about liability for adjacent property owners for trails on public rights-of-way. People are worried that they may be liable for an injury uncurred next to their house. Ray’s opinion was that this was not the case. He said Oregon law is clear that people who use land opened for recreational use must take the responsibility on themselves. However, current City Code specifies that the adjacent property owner has liability for the unbuilt rights-of-way. That means they are responsible for responding to any lawsuits lodged by anyone “harmed” while on the unbuilt right-of-way. They are protected by ORS laws that currently specify that the person using the property for recreational purposes cannot sue to recover damages except in extreme circumstances.
Portland Parks Bureau has agreed to assume liability for easements executed for trails like the 40 mile loop trail from the Oregon Zoo to SW Patton across private property, and the recently constructed Connor Trail from OHSU to the Marquam Shelter. Without the assumption of liability by the City of Portland, it is unlikely that property owners would agree to any easements on public rights-of-way. As adjacent property owners must approve any improvement on adjacent rights-of-way, it may be very hard to get approval for any new improvements. Adjacent property owners are currently responsible for maintenance like removing downed trees; SWTrails PDX volunteers cannot help.
To rectify this untenable situation we are suggesting the following:
1. The City of Portland assume liability for all the unbuilt rights-of-way in the city of Portland (just as the Parks bureau has in the above examples). Based on discussions we have had thus far, it appears that classifying any trails on these unbuilt rights-of-way as “Recreational Trails” will eliminate most lawsuits. It is a small step to back up this legal shield with assurance that the City of Portland will backstop any lawsuits that are not stopped by the legal language of the Oregon Statute on recreational use of lands.
2. All trails built on unbuilt rights-of-way shall have the appropriate permit as determined by the proper authority.
3. All trails having a permit shall be inspected.
4. All trails on unbuilt right-of-way shall be maintained by the City of Portland, with support of volunteer organizations where such exist or can be recruited.
This would remove the incentive of the adjacent property owner to resist the use of the unbuilt right-of-way due to liability concerns, and it makes it possible to acquire some key easements we have been working on. It makes for a clear permitting process and it gives SWTrails PDX the opportunity to address issues like vegetation overcrowding the walkways we seek to use.
We would like the city to act on this as soon as possible so people living next to trails can relax and we can get back to making trails on public rights-of-way safer.
July 2009: The SWNI board approved a resolution supporting a bill in the Oregon Legislature expanding liablity immunity for property owners to include uses beyond just recreational such as using the trail to go to school and go to commercial activities like buying groceries. The current law limits the liability exception to just recreational purposes. SWTrails PDX has stopped construction and maintenance of our extensive SW trail network on public rights-of-way until this situation is resolved. We continue to work on trails in park land as it is not affected. Please keep in touch with us on how and when you can help. We have several up-coming projects.
July 2010: SWTrails PDX discussion prior to a work meeting with City Council on the trail liability issue on August 2nd at city council at 6:30pm focussed on ideas for how the issue could be resolved. Don said it would be important to include a provision to allow people to prune vegetation in the public right-of-way. Also, the public should be allowed to maintain rights-of-way that are not being retained by adjacent property owners. Roger asked how it would be different on rights-of-way between private property and public property vs two private properties, and who would be responsible for encroaching vegetation. Katurah pointed out that a person using the trail has responsibilities. Arnie pointed out there are some very narrow rights-of-way. There are many stairs built and maintained around Portland by the City and no one seems to know how that occurred. Chris pointed out that the city saves a lot of money with volunteers who work on trails. We were in unaminous agreement that we support changing the laws regarding pedestrian rights and liabilities, and will work to make that happen.
January 2011: The City of Portland has placed the modification of ORS code dealing with liabilty on their legislative agenda. They have a draft bill which will soon be on the Trails website; look for it there. The trails web site is: www.swtrails.org.
Jan 2011: Don said the city is working on legislative solutions for the liability issue. Keith said the lawyers who are members of the Bicycle Transportation Alliance (BTA) are in agreement on the intent of the legislation but are worried about the wording. Don is talking at the Pedestrian Advisory Committee on other changes, such as walking against traffic. This may be a project for 2012.
Feb 2011: Legislative report on a bill to limit property owner liability for trails. Don gave testimony before an Oregon legislative committee. He talked to Ginny Burdick, who will be the lead for testimony on the bill to limit liability associated with trails. In addition to Don, Glenn Bridger and three people from the City of Portland spoke. There are two versions of the bill. The testimony seemed to go well.
Roger reports that he read the longer 3-page version. He is concerned about two things: 1) The bill is oriented to rural areas, like trails through forests. The language is confusing.
2) The first-page definition of a public trail is of an unimproved right-of-way over private property. Roger thinks that a true public right-of-way is not over private property. Discussion takes place. Don and Leonard think that, technically, rights-of-way may be over private property, which will revert back to abutting private property if the right-of-way is vacated. If this is an issue we need to address, further research is needed.
There is also a bill proposing to allow large cities set the speed limit on Urban Trails and Neighborhood Greenways under specific conditions. If it passes, the City of Portland will be able to set the speed limit at 20 mph on some key local streets. It would not be applied to arterials.
April 2011: The Oregon legislature is considering bills to further limit (reduce) liability for property owners adjacent to trails. Several members of SW Trails and City of Portland representatives spoke at a recent legislative committee hearing. We are hopeful this bill will pass this session.
May 2011: Don said he testified in the Oregon House at a hearing on trails liability. He said the bill would be very good for the type of trails work SW Trails PDX does. However, it is important that we not get paid for the work. It will give some liability protection to the volunteer workers building the trails on rights-of-way.