Liability and Insurance
Exposure to risk and liability is one of the primary concerns when developing a rail-with-trail. Refer to the Legal Issues segment in Section III for more
information on liability and risk reduction. USDOT’s
Rails-with-Trails: Lessons Learned
provides comprehensive information about these topics and should
be consulted to learn more about measures that trail managers can take to reduce exposure to liability, and existing state statues that may alleviate
the liability concerns of the railroad. Since
Rails-with-Trails: Lessons Learned
was published, some Class I railroads have released public policy or operating
standards that discourage or prohibit the development of trails within their corridors, and some railroads have specific standards that must be met during
design and construction (see Section II). Survey findings indicate that trail managers and railroads remain very concerned about safety and liability,
although no new accidents or fatalities involving trail user and train conflict were reported in the responses provided.
Claims Against Trail Managers and Railroads
Seven of the 88 rails-with-trails reported claims against the trail manager.
Most claims did not involve the railroad, but some claims involved trail
conditions affected by proximity to railroad infrastructure:
The Yampa River Core Trail in Colorado cited claims made due to injuries sustained by trail users going down grades at railroad underpasses.
On the Gary L. Haller Trail in Kansas, a trail user was injured when he ran into the railroad’s fence at one of the tunnel crossings. Even though the
railroad was negligent (the fence was left open by the railroad), the city paid the settlement claim because the railroad was indemnified.
None of the 88 trail managers were aware of liability claims filed against railroads as a result of the presence of a rail-with-trail.
A majority of trail managers reported that their trail’s insurance requirement was covered by an existing municipal or state insurance policy. Examples of
nonprofit organizations that carry insurance policies for the trails they manage include:
Clarion-Little Toby Rail Trail, Pa., insured by the Tricounty Rails to Trails Association;
Montour Trail (Westland Branch),Pa., insured by the Montour Trail Council;
Five Star Trail, Pa., insured by the Regional Trail Corporation;
Three Rivers Heritage Trail, Pa., insured by the City of Pittsburgh and Friends of the Riverfront; and
Cardinal Greenway, Ind., insured by Cardinal Greenways.
Many trail managers negotiating with railroad companies to develop rails-with-trails are required to indemnify the railroad or owner of the corridor,
releasing them from liability. Approximately one-third (32 percent) of trail managers reported that their agency was required to indemnify the corridor
owner. This is up from 26 percent of rails-with-trails that were required to indemnify in RTC’s 2000 report. Another third reported that indemnification was
not required, and 31 trail managers did not answer or were unsure of indemnification requirements. In addition to indemnification, some trail managers
stated that the railroad required their agencies to carry supplemental insurance policies (e.g., comprehensive general liability insurance specifically for the
trail). Example legal agreements included in the online Appendix include indemnification language and other liability protection requirements.
Trail is insured under its own
policy or umbrella policy of
Insurance policy holder