Landowners liability

In the past owners of land adjacent to trails in Portland have objected to trails because of a fear that they would be liable for maintaining these trails and if anyone on the trail was injured.   SW Trails lobbied the Oregon Legislature and eventually saw the liability law changed.

The gist of the current law, the changed law, is that Portland land owners are now immune from liability for injuries to pedestrians on trails adjacent to their property.  So are nonprofit volunteer organizations like SW Trails who build the trails.

SW Trails worked on this issue for several years – see the log of progress below.   This work eventually led to House Bill 2865 in the 2011 legislature and thus to the current state law.


February 2009

Liability: On the liability front, SW Trails has been meeting with PDOT staff to work out these issues. They  have proposed relabeling our SW urban trails as “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 is then where would our funding come from to replace signs, rebuild trails, etc. In addition, they want the trails to be maintained by SWNI and SW Trails forever.  Many of us think 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
Liability: The following is the Draft position from SWTrails to resolve the the liability situation for trails in unbuilt rights of way.  SWTrails 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 stopped by the legal language of the Oregon Statute on recreational use of lands. 2. All trails built on unbuilt right of way will have the appropriate permit as determined by the proper authority. 3. All trails having a permit will be inspected. 4. All trails on unbuilt right of way will be maintained by the City of  Portland with support of volunteer organizations where such exist or can be recruited.

Nov 2008
Don talked about the liability issue.  There will be a meeting on December 2nd.  Glenn  Bridger and John Gould from Hillsdale will be there along with Brian Russell There was a very supportive article about the liability problem in the Oregonian today, Thursday Nov 20th. .

April 2009
Don and Lee talked about the SWNI board meeting discussion of the liability motion approved by Southwest Trails last month.  The SWNI Board tabled the motion after the discussion went on so long and would like us to refine the motion.

June 2009

Liability: One of the topics of interest at Ray’s talk was liability for adjacent property owners of trails on public right of way. People have been very worried that they  may be liable for an injury 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 if 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 for these , it is unlikely any easements will be agreed to by the property owners.  As adjacent property owners must approve any improvement it will be very hard to get approval for any new improvements. Currently adjacent property owner’s are responsible for maintenance such as removing downed trees and SW Trails 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 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 stopped by the legal language of the Oregon Statute on recreational use of lands.

2. All trails built on unbuilt right of way will have the appropriate permit as determined by the proper authority.

3. All trails having a permit will be inspected.

4. All trails on unbuilt right of way will be maintained by the City of  Portland with support of volunteer organizations where such exist or can be recruited.

It removes the incentive of the adjacent property owner to resist the use of the unbuilt right of way from a liability concern and it makes it possible to some acquire key easements we have been working on. It makes for a clear permitting process and it it gives SWNI Trails 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 right of way safer.

July 2009
Trail Liability: 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 has stopped construction and maintenance  of our extensive SW trail network on public-right-of way until this situation is resolved. We continue to work on trails on 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
There will be a work meeting with City Council on the trail liability issue on August 2nd at city council at 6:30pm. We discussed some 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 right-of-ways that are not being retained by adjacent property owners. Roger asked how it would be different on Right-of-Ways 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 right-of-ways.  There are many stairs built and maintained around Portland by the City and no 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 working to make that happen.

January 2011
Liability Issue: 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: http://www.swtrails.org.

Jan 2011
Don said the city is working on legislative solutions for the liability issue. Keith said the lawyers members of the 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 has just given testimony before an Oregon legislative committee. He talked to Ginny Burdick, who decided to be the lead off the 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 and the land reverts 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 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.