RAILS-TO-TRAILS CONSERVANCY
13
Legal Issues: Liability
W
hile trails located alongside active rail lines have
not proven to be any less safe or to result in greater
injuries to trail users than other off-road bike
facilities, the perception nonetheless exists that rails-with-trails
projects could increase the legal liability of the trail manager,
the railroad, or both. In the context of rail-with-trail, “liabil-
ity” refers to the responsibility of a trail manager or railroad to
compensate or otherwise make whole a person who is harmed
through some fault of the trail manager or railroad.
Building a trail along an active railroad does not, in itself,
expose the trail manager to liability. Adherence to generally ac-
cepted design standards and/or best practices in designing the
trail will generally protect the trail manager from a finding of
negligent design. Instead, trail manager and railroad liability is
governed by general legal principles defining the legal respon-
sibilities of owners and occupiers of land (“land managers”) to
persons who enter their property. In other words, rails-with
trails are no more likely to expose landowners to legal liability
than stand-alone trails.
Under general concepts of liability, a landowner’s liability depends
on whether the injured party has the status of a customer or
client (“invitee”), an invited guest (“licensee”) or trespasser.
Each of these classes of persons entering the property is owed a
different duty of care. Trespassers are owed the lowest duty of
care and pose the lowest level of liability risk. The trail manager
can only be held liable to a trespasser for actions that are either
intended to cause harm to trespassers or are taken with reckless
disregard for the consequences.
A few states have passed laws requiring railroad companies to
fence their rights-of-way in various contexts. Some of these
statutes impose liability on the railroad for any injury to cattle
and livestock injured by the failure to fence, unless the fences
would have interfered with railroad operations.
The most important legal protections available to trails, includ-
ing rails-with-trails, are the Recreational Use Statutes (RUS)
enacted in some form by all 50 states. These statutes typically
limit the liability of landowners and managers who invite the
public onto their land for recreational uses and do not charge a
fee. Where a RUS is applicable, the trail manager will not be held
liable for any injuries sustained by trail users unless the trail manag-
er intentionally harmed the trail user or was grossly negligent.
Maine amended its RUS specifically to include “railroad
property, railroad rights-of-way and utility corridors to which
public access is permitted” in the definition of “premises” that
are subject to RUS protections.
18
Virginia amended its RUS in
2010
to also define “premises” as including railroad property
and to extend protection to nonprofit and tax exempt charit­able
organizations.
19
It is important to check the specific language of a state’s RUS
to determine its applicability. In virtually all states, the statute is
inapplicable if a fee is charged for access to the land. Under most
state RUS, lessees and occupants, in addition to landowners,
are entitled to the limited liability benefits of the statute. For
example, Alaska’s and Pennsylvania’s RUS apply only to “unim-
proved” and “undeveloped” lands, respectively.
20
This has raised
issues of what improvements to a trail would prevent it from
being considered “undeveloped land.”
21
However, Pennsylvania
has also enacted a specific limitation on liability for “an owner
or lessee who provides the public with land for use as a trail
under this act or who owns land adjoining any trail developed
under this act.”
In some states, the RUS only applies to private landowners;
governmental landowners are excluded. In these states, govern-
mental land owners are liable only to the extent that state
law limits their sovereign immunity from suit. Visit RTC’s
website for a complete list of state RUS:
railwithtrail.
While the application of a RUS varies depending on the word-
ing of the statute and the facts of the case, one court recently
held that both the trail manager and the railroad were immune
from liability under the RUS where a cyclist was struck and
killed by a train while within a designated trail crossing of the
railroad tracks. The court specifically noted that the trail cross-
ing had been created for the purpose of improving safety for
pedestrians and bicyclists who had previously been crossing the
tracks in an unsafe manner “at random locations.”
22
In addition to RUS, some states have enacted general statutes
immunizing railroads from liability from injury to trespassers.
For example, as noted above, Pennsylvania has enacted a
statute providing that “[a] railroad carrier owes no duty of
care to keep its railroad property safe for entry or use by any
trespasser who enters upon any railroad property or railroad
right-of-way or to give any warning to such trespasser entering
or going on that railroad property of a dangerous condition,
use or activity thereon.”
23
The FRA has developed model legis-
lation that penalizes persons who trespass on railroad property
in order to engage in recreational activities such as bicycling
and walking.
24
III.
POLICY, SAFETY AND LEGAL ISSUES