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Rails-with-Trails: Lessons Learned

SECTION IV: Legislation, Liability, and Insurance

Liability is an extremely important area of concern in virtually all RWT projects. In the context of RWT, liability refers to the obligation of a trail manager or railroad to pay or otherwise compensate a person who is harmed through some fault of the trail manager or railroad. The filing of a personal injury or tort claim against the presumed responsible party typically begins the formal process of enforcing that responsibility. However, because there are relatively few RWTs, the courts rarely have analyzed the relative responsibilities of railroads and trail managers toward an injured trail user. Additionally, cases often are settled before they reach a court trial, leaving no legal precedents from which to draw. Thus, there are no clear legal guidelines as to how the courts will view RWT liability issues. Also, some liability questions relating to RWTs are resolved by State law, which varies from State to State, and the applicability of which depends on the specific facts of each case. Nevertheless, some conclusions, with certain references to minority positions, can be made as to how liability issues arising in the context of RWTs are likely to be resolved. This section1 discusses the principles governing liability in the context of RWTs, including both statutory protections and common law standards.2 This section does not address the fairly extensive body of law dealing with disputes related to ownership and acquisition of land near railroad tracks, nor does it address individual liability for violation of the Federal railroad safety laws (e.g., by interfering with the normal functioning of a grade crossing warning device) (see 49 CFR 234.209).

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Overview of Recommendations

  1. Trail development agencies interested in pursuing an RWT should conduct initial legal research as early into the process as possible. Important information includes the following: ownership, easement, and license agreements in the railroad corridor; legal protections available at the State level (e.g., Indemnification, applicable State statutes, and strength of local trespassing ordinances); local or State property rights ordinances and information; and trail management organization insurance protection.

  2. Trail development agencies interested in pursuing an RWT should acquire the affected railroad property for public ownership whenever feasible.

  3. Trail managers should adhere to design recommendations identified in this report and in design standards and guidelines (e.g., the AASHTO Guide for the Development of Bicycle Facilities and Manual on Uniform Traffic Control Devices) (see Appendix A for explanation of these documents). In particular, signs should be provided at entrances to warn users to stay off the railroad tracks and that trespassing is a crime.

  4. Both trail managers and railroad companies should review State statutes to ensure the validity of indemnification agreements, and the scope or applicability of fencing laws (see Appendix B, Matrix of Statutes and Laws). To the extent there is any ambiguity as to the applicability of the statute, trail proponents should lead an effort to strengthen their State's laws to increase railroad liability protection, as States such as Arizona have done.

  5. Trail management organizations should absolve railroad companies of liability responsibility for injuries related to trail activities on related property, to the extent practicable and reasonable.

  6. Trail management organizations should purchase or provide comprehensive liability insurance in an amount sufficient to cover foreseeable liability costs and pay the costs for railroad company insurance for defense of claims.

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Overview of Concerns

Railroads have a number of liability concerns about the intentional location of a trail near or on an active railroad corridor:

The level of railroad company concern is dependent in part on the class of railroad and the type of operations they perform. Privately-owned Class I railroads (see Appendix A: Definitions) tend to be reluctant to grant non-rail usage of their rights-of-way because loss of right-of-way width at any given location could reduce the ability of the railroad to add main track and sidings necessary to provide increased capacity and serve customers. In addition, their perceived deep financial pockets make them a frequent target of lawsuits. Transit and tourist train operators may support RWT projects because they often are quasi-governmental entities, with a mission of attracting people to their service. Finally, locally-based short-line operators have less reason to be concerned about future track expansion, and may be inclined toward the potential financial rewards of permitting an RWT project along their rights-of-way. For all RWTs proposed for railroad property, the railroad must weigh the safety and liability risks against potential financial and other gains. Thus, minimization of these risks is a key ingredient to a feasible RWT.

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Definitions and Laws

As the owners and occupiers of their rights-of-way, railroads have legal duties and responsibilities to persons both on and off their premises. Railroads have a duty to exercise reasonable care on their premises to avoid an unreasonable risk of harm to others who may be off the railroad premises. For example, railroads may be found liable if the use of their right-of-way creates an unreasonable risk to persons on an adjacent "public highway" such as through derailments or objects falling off the trains.

In most States, the duty of care owed to persons who enter another's property depends on whether the injured person is considered a trespasser, a licensee, or an invitee. Trespassers are due the least duty of care, while invitees are due the most3 (see Figure 4.1).

As a general rule, railroads owe no special duty of care to persons trespassing on railway premises, other than to refrain from intentional, harmful, or reckless acts. There are, however, four exceptions to this general rule:

A graphic of a large arrow pointing from left to right with the words, Liability Increases.
TRESPASSER: "a person who enters or remains upon land in the possession of another without a privilege to do so, created by the possessor's consent or otherwise."1 Trespassers are due the least duty of care and therefore pose the lowest level of liability risk. The landowner generally is not responsible for unsafe conditions. The landowner only can be held liable for actions that are either intended to cause harm to trespassers or are taken with reckless disregard for the consequences. LICENSEE: a person on land with the owner's tacit2 or express permission but only for the visitor's benefit.3 A licensee is owed a greater duty of care than a trespasser.4 While the landowner is not responsible for discovering unsafe conditions, the landowner must exercise reasonable care to provide warning of known unsafe conditions. The major distinction between a trespasser and licensee on a railroad right-of-way is that the railroad may be required to look out for licensees before their actual presence is discovered.5 INVITEE: a person on the owner's land with the owner's permission, expressly or implied, for the owner's benefit, such as a paying customer. This is the highest level of responsibility and therefore carries the highest level of duty of care. The owner has a duty to (1) inspect the property and facilities to discover hidden dangers; (2) remove the hidden dangers or warn the user of their presence; (3) keep the property and facilities in reasonably safe repair; and (4) anticipate foreseeable activities by users and take precautions to protect users from foreseeable dangers.
1 Second Restatement of Torts, § 329.
2 In most States, a railroad's toleration of trespassers is not considered tacit consent if prevention or providing warning is considered futile.
3 Licensees are often individuals taking short cuts over the property of others.
4 The vast majority of States currently hold railroads to a duty of exercising reasonable care to protect licensees.
5 Particularly in the context of railroad rights-of-way, there are great similarities between a licensee and a foreseeable trespasser.

FIGURE 4.1 Liability definitions

In deciding whether to allow an RWT on its right-of-way or determining the indemnity and insurance coverage appropriate for a given RWT, a railroad needs to weigh and balance three factors: (1) the extent, if any, to which the RWT will elevate the railroad's duty of care to any particular individual; (2) the potential increased scope of the railroad's liability; and (3) the increased or decreased likelihood of an injury occurring as a result of the RWT.6 Each RWT project will necessarily have unique characteristics affecting the extent, if any, to which a railroad's liability is potentially enlarged. Some general observations, however, can be made.

By selling or leasing a longitudinal strip of its right-of-way for an RWT, the railroad will be permitting the creation of a public way immediately adjacent to its tracks. For rights-of-way not already adjacent to public highways and for those having low incidents of trespass, an RWT would likely enhance the railroad's duty of care under common law principles and increase the scope of its potential liability for those on the trail. In such situations, an individual traversing the longitudinal strip would generally be deemed a trespasser pre-RWT, to whom no duty of care is owed, but would be considered either a licensee or invitee on the trail post-RWT. As a licensee or invitee on the adjacent trail, the railroad would owe the trail user a duty to exercise reasonable care. The scope of liability is likely to increase by virtue of the RWT increasing the public usage of the longitudinal strip. A well-designed RWT, however, may mitigate these potential increases in off-property liability by decreasing the likelihood of injury.7

In the above situation, a trail user, who departs from the trail and unlawfully enters the railroad's remaining right-of-way, would most likely be deemed a trespasser in most States as long as the incidents of trespass remain infrequent. Thus, the railroad's duty of care likely would not be enhanced for individuals leaving the trail and intruding on the right-of-way. In several cases involving track-side paths, such as a surfaced walkway, courts have found the person injured while walking near the tracks but off the pathway to be contributorily negligent thereby absolving the railroad from responsibility for the injury. Some States use comparative negligence instead of contributory negligence, thereby allowing juries to assess some portion of responsibility to the railroad. By inhibiting trail users from accessing the right-of-way, a well-designed and maintained RWT also could prevent an increase in the scope of the railroad's on-property liability and the likelihood of injury.

For rights-of-way already adjacent to public highways and those with a high incidence of trespass, an RWT likely would not enhance a railroad's duty of care to individuals on the trail. Railroads already have a duty to exercise reasonable care to those lawfully occupying adjacent property. Most States impose that same duty on railroads whenever trespassers frequently enter discrete areas of their rights-of-way. Most likely, the scope of the off-property liability will increase, since in only rare, if any, instances should the frequency of current trespass exceed the projected use of the trail. A well-designed and maintained RWT, however, could offset the increased scope of the off-property liability by channeling current trespassers away from the right-of-way, decreasing the likelihood of injury.

In this latter situation, a well-designed and maintained trail could reduce a railroad's current liability exposure by reducing the number of individuals to whom the railroad owes a duty of care, thereby limiting the scope of the potential liability and decreasing the likelihood of injury. If appropriate barriers are erected on the right-of-way between the trail and the tracks so as to reduce the incidents of trespass onto the tracks, the courts may view the remaining isolated trespassers as no longer foreseeable. Thus, at least in those States that recognize the "foreseeable trespass" exception, the railroad may no longer owe a duty of care to adult trespassers as a result of the RWT. By reducing the number of trespassers, the barriers also should serve to limit the scope of the potential on-property liability and the likelihood of injury on the right-of-way.

The railroad's concern is that an RWT will bring a large and increasing number of individuals near the tracks. This, it claims, will inevitably increase the number of people exposed to injury arising from railroad operations, the incidents of trespass, and the number of locations where a railroad will have to anticipate trespassers. For an RWT without barriers, or with improperly constructed or maintained barriers, these concerns are valid. Without appropriate separation between track and trail, the incidence of trespass is likely to increase and most States likely would hold the railroad to a standard of reasonable care in anticipating a trail user crossing or longitudinally traversing the tracks along the entire RWT corridor. In these circumstances, both the railroad's duty of care and scope of liability are likely to increase. A trail with well-constructed and properly maintained barriers, however, could serve to reduce, rather than increase, the frequency of trespass onto the tracks. As indicated in Section II, a well-designed and maintained RWT can reduce trespassing by "channelizing" pedestrian crossings to safe locations or by providing separation or security. In these circumstances, the incidents of trespass and the railroad's corresponding duty of care may decrease or stay the same.

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Available Legal Protections

Potentially offsetting some or all of a railroad's increased liability attributable to an RWT are the State-enacted recreational use statutes (RUS) and rails-to-trails statutes. Landowners receive special protection from liability by the RUS. All 50 States have an RUS, which provides protection to landowners who allow the public to use their land for recreational purposes. Under an RUS, an injured person must prove the landowner deliberately intended to harm him or her. States created these statutes to encourage landowners to make their land available for public recreation by limiting their liability provided they do not charge a fee.

Table 4.1 shows the available legal protections that reduce risk for adjacent property owners on RWT projects, with sample language from relevant legal documents. A compilation of the laws of the 50 States and the District of Columbia relating to the liability issues associated with RWTs is shown in Appendix B, providing a listing of the RUSs and governmental tort claims acts for each State. In addition, Appendix B also lists recreational trail and rails-to-trails statutes for the States that have enacted them. These are laws specifically enacted to clarify, and in some cases, limit, adjacent landowner liability. More than half of the States have enacted a recreational trail statute that directly addresses the issue of liability. This can range from protecting adjacent landowners from liability to making the RUS for the State specifically applicable to a rails-to-trails program.

Trail managers face similar common law duties of care for on- and off-property injuries and damages. Recreational use statutes and governmental tort claims acts, however, can significantly limit a manager's liability. These statutes and acts vary greatly from State to State.

Recreational use statutes typically protect managing agencies from being held liable for injury to trail users, unless trail managers intentionally or recklessly injure or create danger to users. Virtually all RUSs essentially treat trail users as trespassers on the trail property for purposes of determining the duty owed by the manager of the property to the trail users. Most RUSs, however, are not applicable where a fee is charged for entry or use of the trail.8 In most States, the RUS grants immunity for the recreational use of any land, whether developed or undeveloped, rural or urban, so long as the plaintiff used it for recreation.9

TABLE 4.1 Liability exposure reduction options

Measure Sample Language

Recreational Use Statute "An owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes does not thereby:
  1. Extend any assurance that the premises are safe for any purpose;

  2. Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;

  3. Assume responsibility or incur liability for any injury to person or property or for the death of any person caused by an act or omission of such person."1


Trespassing legislation Whoever, without lawful authority or the railroad carrier's consent, knowingly enters or remains upon railroad property, by an act including, but not limited to--
  1. "standing, sitting, resting, walking, jogging, running, driving, or operating a recreational or non-recreational vehicle including, but not limited to, a bicycle, motorcycle, snowmobile, car, or truck; or

  2. "engaging in recreational activity, including, but not limited to, bicycling, hiking, fishing, camping, cross-country skiing, or hunting--except for the purpose of crossing such property at a public highway or other authorized crossing, shall be guilty of a misdemeanor. Upon conviction of such act, the person shall be fined not more than $100, imprisoned for not more than 30 days, or both."2


Trail or rail-with-trail State statute "No adjoining property owner is liable to any actions of any type resulting from, or caused by, trail users trespassing on adjoining property, and no adjoining property owner is liable for any actions of any type started on, or taking place within, the boundaries of the trail arising out of the activities of other parties."3

Easement/lease agreements that limit liability "The County hereby releases and will protect, defend, indemnify and save harmless Conrail from and against all claims, liabilities, demands, actions at law and equity (including without limitation claims and actions under the Federal Employer's Liability Act), judgments, settlements, losses, damages, and expenses of every character whatsoever (hereinafter collectively referred to as "claims") for injury to or death of any person or persons whomsoever which result from the unauthorized use of motorized vehicles, such as but not limited to, motorcycles, minibikes, and snowmobiles within the easement area, and for damage to or loss or destruction of property of any kind by whomsoever owned, caused by, resulting from or arising out of the exercise of this Easement granted hereby, except to the extent that such claims arise from Conrail's negligence."4

Permittee shall assume complete liability for any and all claims resulting from the construction, reconstruction, maintenance, operation, use, and existence of the Facility located on, under, or over the Site....however, (the) Permittee shall not be required by this permit to indemnify any person against liability for damages arising out of bodily injury or property damage caused by or resulting from the sole negligence of such person or such person's agents or employees."5

Easement/lease agreements with full indemnification "...the City assumes all risk of loss or destruction or damage to the Walkway, to property brought thereon by the City or by any other person with the knowledge or consent of the City, and to all other property, including property of the Railroad, and all risk of injury or death of all persons whomsoever, including employees of the Railroad, where such loss, damage destruction, injury or death would not have occurred but for the presence of the walkway on the Bridge."6

Insurance Appendix C, p. 149

Transfer of ownership The language limiting liability or granting indemnification on behalf of the railroad should be the same or similar to easement agreements.

1 Colorado Recreational Use Statute: Colo.Rev.Stat.Ann.§ 33-41-101 et seq. (West 2000). Other examples available on-line at http://www.imba.com/resources/trail_issues/liability_chart.html.

2 Federal Railroad Administration, Office of Safety, Model State Legislation for Railroad Trespass and Railroad Vandalism, available at http://www.fra.dot.gov/content3.asp?P=297.

3 California Recreational Trails Act, Cal.Pub.Res.Code § 5075.4 (Deering 2000), available at http://www.leginfo.ca.gov/calaw.html.

4 Schuylkill River Trail Indemnification agreement.

5 Coastal Bike Trail Permit between Municipality of Anchorage and the Alaska Railroad Corporation, August 1987: p.5.

6 Lease and Operating Agreement between City of Portland and the Union Pacific Railroad, January, 2000: p.9. Agreement provided in full in Appendix C.

Not all States' RUSs cover trail managers. The courts in California, Pennsylvania, and New York have held that the State RUSs do not cover public agencies, but instead are only applicable to private landowners.10 Under those circumstances, the public agencies would be liable to the extent specified by the State's tort claim statutes.

On the other hand, the Wisconsin RUS expressly covers the owner of the land, any governmental entity that leases the land, and any nonprofit organization that have a recreational agreement with the owner (Wis. Stat. Ann. § 895.52(1)(West 2000)).

Even if a public agency is not covered by a State RUS, its tort claims law may grant immunity. For example, California absolves governmental entities of liability for injuries caused by a condition of certain paved and unpaved trails ((Cal. Civ. Code § 831.4 (West 2000); Minn. Stat. Ann. § 3.736.3(h)(West 2000); S.D. Codified Laws § 20-9-12 et seq. (Michie 2000)). Pennsylvania has enacted a comprehensive rails-to-trails law that expressly extends the State RUS to "any person, public agency or corporation owning an interest in land utilized for recreational trail purposes" (32 Pa. Cons. Stat. tit. § 5621 (2000)). By contrast, Wyoming law specifically provides that the government is liable for damages resulting from negligent operation of maintenance of any "recreation area or public park" (Wyo. Stat. Ann. § 1-39-106 (Michie 2000)).

A trail along a right-of-way may be considered a linear park, the operation of which in some States is considered a "discretionary" or "proprietary" function and immune from liability.11 For example, most States accord highway agencies with immunity from charges of defective highway design (called "design immunity") if the highway was designed in accordance with accepted engineering practices and standards (NCHRP, 1981).

The railroad's increased on- and off-property liability for RWT also may be limited, in whole or in part, pursuant to the various State RUSs.12 Although there is little case law specifically interpreting the impact of the RUS on RWT, two Federal courts have given a very expansive interpretation to the scope of the recreational use and the reach of the immunity granted by the various RUSs. In both cases, the courts held that railroad rights-of-way are suitable for recreational use and that the railroads are immune from liability for negligence under the respective State RUS where the plaintiffs used the rights-of-way for recreational purposes even though no developed trail had been established on the rights-of-way.13 Virtually all RUSs provide that the owner of the property owes no duty of care to a recreational user as long as the use of the property and the property itself qualify under the RUS. The theory behind these statutes is that if landowners are protected from liability they would be more likely to open up their land for public recreational use and that, in turn, would reduce State expenditures to provide such areas. Consequently, the RUSs can be reasonably interpreted as overriding the common law duty railroads would otherwise owe to recreational users on their rights-of-way.14

Presumably as an added incentive to encourage private landowners to allow use of their property for recreational purposes, the California RUS allows the landowner to recover reasonable attorney's fees in defending against any unmeritorious claim for injury or damages on the property (Cal. Civ. Code § 846.1(a)(West 2000). The Colorado RUS, in addition to limiting liability to willful and malicious conduct, limits the amount of damages owed by a private landowner for injury to a recreational user on his or her property as long as the owner does not share in any fees paid by the injured person (Colo. Rev. Stat. Ann. § 33-41-103(2)(West 2000). Similarly, the Maine RUS permits courts to award legal costs, including reasonable attorneys' fees, to an owner or manager of a trail who is unsuccessfully sued for injury or damages (Me. Rev. Stat. Ann. tit. 14, §159-A(6)(West 2000)).

Apparently the most sweeping protection for landowners who enter into an agreement with a governmental entity for recreational use of their property is offered by Virginia. The Virginia RUS expressly mandates that any governmental entity entering into such an agreement must "hold [the owner] harmless from all liability and be responsible for providing, or paying the cost of, all reasonable legal services required by [the owner] as a result of a claim or suit attempting to impose liability" (see Va. Code Ann. § 29.1-509(E)(Michie 2000)). The Statute further provides that any attempt to waive this governmental indemnification is invalid. The Virginia Statute, thus, appears to provide total indemnification for a railroad entering into an agreement with a Virginia governmental entity for trail use along the railroad's right-of-way.

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Crash Trends

Line Chart. Highway-rail grade crossing collisions and casualties at public crossings, 1981-2000. Please see associated text for figures associated with this chart.

Source: Federal Railroad Administration

FIGURE 4.2 Highway-rail grade crossing collisions and casualties at public crossings, 1981-2000

Pie chart. Highway-rail incident breakdown, 2000. Automobile - 61.6%, Van - 2.9%, Pedestrian - 2.4%, Other - 1.3%, Truck - 19.1%, Bus - 0.292%, School bus - 0.032%, Truck-Trailer - 12.1%, and Motorcycle - 0.227%.

Source: Federal Railroad Administration

FIGURE 4.3 Highway-rail incident breakdown, 2000

Almost 3,500 highway-rail incidents occurred in 2000, a dramatic decrease from the 5,715 reported in 1990 (see Figure 4.2). In almost three-quarters of the cases, a train strikes a motorist. However, the motorist is almost always at fault, having ignored warning signs, bells, lights, even gates. Automobile, van, and truck crashes make up 83 percent of railroad collisions. Pedestrian crashes only account for about 2 percent (see Figure 4.3). These incidents reveal the dangers of trains interacting with people, whether in a car or on foot. Since 1975, the number of trespass fatalities has risen and fallen. Over the past seven years, the number of trespass fatalities has remained approximately 500 per year, a number that now exceeds deaths at highway-rail crossings. As a result, trespasser fatalities represent the greatest loss of life associated with railroad operations.

Researchers queried trail managers, railroad officials, and official railroad industry records for historical trends and information about at-grade RWT-track crossings. The available official documentation yielded no crash information. None of the trail managers or railroad officials reported any crashes along the RWTs studied for this report. The Reading and Northern Railroad official for the Lehigh River Gorge Trail, however, did report frequent close calls.

The Rails-to-Trails Conservancy's (RTC) 2000 report, Design, Management, and Characteristics of 61 Trails along Active Rail Lines, identified one crash that occurred at an at-grade road crossing on the Illinois Prairie Path. The bicyclist ignored the warning bells and flashing lights, rode around a lowered crossing gate, and collided with the train. Technically, this incident did not occur on the trail corridor but at an adjacent, pre-existing highway-rail crossing.

RTC found another incident involving a boy in Alaska, who used the Tony Knowles Coastal Trail to approach the tracks. The boy climbed under a damaged fence then attempted to hop onto a passing freight train, with tragic results [severe injury]. The City of Anchorage, which manages the trail and assumed liability, settled the case with the plaintiff for $500,000. The railroad was held harmless from any liability for this accident by the terms of its indemnification agreement with the City. Subsequently, the Alaska Railroad Corporation took out a $10 million per incident insurance policy with a $100,000 deductible at a cost of $15,000 per year.

Although these are the only known RWT incidents, and although no reported crashes appear to have occurred where RWTs cross active rail tracks at grade, it is important to recognize the potential dangers of human interaction with moving trains.

Many RWT agreements specify design features that are intended to reduce liability potential, such as fencing, landscaping, crossing design, and maintenance. None of the railroad officials interviewed reported an increase in liability costs since the adjacent trail was developed, nor had they had their indemnification agreements challenged in court.

Updated: 02/11/2014
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