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Rails-with-Trails: Lessons Learned

1 Karl Morell, Ball Janik, LLP, who has experience representing railroads, and Andrea Ferster, Esq., who represents trail and land conservation proponents and serves as counsel to the Rails-to-Trails Conservancy, analyzed rails-with-trails issues for this section.

2"Common law" standards are those developed by judges through case-by-case litigation and set forth in published judicial decisions that are considered precedent in factually similar contexts.

3A number of States have adopted a rule that a landowner's liability depends on the foreseeability of the injury rather than the status of the injured person as invitee, licensee or trespasser. See Gulbis, Vitatus, "Modern Status of Rules Conditioning Landowners' Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser," 22 ALR 4th 294, § 3a.

4 In some States, a railroad's tolerance of frequent trespassers has led courts to elevate the status of an injured intruder to licensee.

5 A railroad has a duty to take affirmative action to aid or protect a trespasser where the trespasser's peril is caused by active force under control of the railroad, such as where a member of a train crew observes a trespasser in danger on a trestle.

6 The elevation of the duty of care owed to an individual can occur, for example, by having a current trespasser, to whom the railroad generally owes no duty of care, elevated to a licensee, to whom the railroad owes a duty of reasonable care. "Scope of liability" means the potential number of individuals that may be injured.

7 In assessing a railroad's potential off-property liability, a number of factors need to be considered, including the width of the right-of-way, trail setback distance, condition of track, speed of the trains, and nature of the barrier between the track and trail.

8 Many RUSs, however, specifically provide that any consideration received by the private owner for leasing land to a State or State agency shall not be deemed a charge for purposes of rendering inapplicable the RUS. See Del. Code Ann.tit. 7, § 5906 (2000); Ga. Code Ann.§ 51-3-25 (2000).

9 The possible exceptions are Alaska and Oklahoma. Alaska's RUS is only applicable to certain specified undeveloped lands. While the definition of "unimproved land" includes a "trail," it is unclear whether developed trails would fall under that Statute. See Alaska Stat. § 09.65.200 (Michie, 2000). Oklahoma's RUS appears to be limited to land "primarily used for farming and ranching activities." See OK Stat. tit.7 § 10(2000).

10 See, e.g., Delta Farms Reclamation Dist. No. 2028 v. Super. Ct. of San Joaquin County, 190 Cal. Rptr.494 (1983); Leonakis v. State, 511 N.Y.S.2d 119 (1987); Watterson v. Commonwealth 18 Pa. D. & C.3d 276 (1980).

11 See Mayor and City Council of Baltimore v. Ahrens, 179 A. 169, 171-73 (Md. 1935) (to hold governments liable for injuries in parks "would be against public policy, because it would retard the expansion and development of parking systems, in and around growing cities, and stifle a gratuitous governmental activity vitally necessary to the health, contentment, and happiness of their inhabitants").

12 For example, Arizona's RUS is expressly extended to "railroad lands ... which are available to a recreational or educational user, including, but not limited to, paved or unpaved multi-use trails ..." Ariz. Rev. Stat. Ann. § 33-1551 (West 2000).

13 In Lovell v. Chesapeake & Ohio R.R., 457 F.2d 1009 (6th Cir. 1972), a Boy Scout leader was killed when he tried to rescue a Scout from an oncoming train. The court found that the Boy Scouts had gone onto the railroad tracks for hiking, which was a recreational purpose. Consequently, the court held that the Michigan RUS "deprives his widow of a cause of action absent proof of gross negligence or wanton or willful misconduct on the part of the railroad." Id. at 1011. See also Powell v. Union Pac. R.R. Co., 655 F.2d 1380 (9th Cir. 1981). The Washington State RUS was interpreted as potentially immunizing the railroad from liability where a teenager was killed when she used the right-of-way to access the beach, if, on retrial, the railroad was found to have allowed the use of the right-of-way for recreational purposes.

14 As previously discussed, under common law, railroads have a duty to exercise reasonable care to prevent harm to anyone lawfully occupying adjacent property and those tacitly or expressly permitted to enter the railroad's property. Under virtually all of the RUSs, however, railroads would only be liable to recreational users on the right-of-way for intentional or reckless conduct. Also, most RUSs define the recreational users in a manner that would include minors. See e.g., Mass. Gen. Laws Ann.Ch.21, § 17C(a)(West 2000). The Texas RUS, however, does not limit liability for "attractive nuisances" except for injured trespassers over the age of 16 on agricultural land. See Tex.Civ.Prac.+Rem.Code Ann.§ 75.003(b)(West 2000).

15 See Missouri, K. & T. RR Co. v. Wall, 116 S.W. 1140 (Tex. 1909); Chicago, & Q RR Co. v. Flint, 22 Ill. App. 502 (1887).

16 These fencing laws are identified and summarized in Appendix B. In addition, fencing obligations can be imposed by municipal ordinance. See Heiting v. Chicago, R. I. & P. R. Co., 96 N.E. (Ill. 1981) (Railroad's violation of City ordinance requiring fence was proximate cause of injury to child who entered right-of-way at location where fence had previously existed and was torn down.)

17 See Nixon v. Montana, W. & S. W.R., 145 P. 8 (Montana, 1914); Nolley v. Chicago, M., St. P. & P. R., 153 F.2d 566, 569-70 (8th cir. 1950); Scarborough v. Lewis, 518 A.2d 563 (Pa. 1986).

18 See, e.g., Chicago & N.W. Transp. Co. v. Hurst Excavating, Inc., 498 F. Supp. 1, 4 (N.D. Iowa 1980) (relying on Section 1 of Article VII of the Iowa Constitution.)

19 For example, Oregon law provides authority for the parks department to indemnify "an owner of private land adjacent to an Oregon recreation trail ... for damage clearly caused to the land of the owner, and property therein, by users of such trail ..." Oregon Rev. Stat. § 390.9980.

20 Indeed, in Alaska, any State or municipality using railroad lands for a public trail or walkway is required to indemnify and hold the railroad harmless for liability and claims arising from such use. Alaska Stat. § 42.40.420 (Michie 2000).

1The MUTCD (see Appendix A for detailed definition) contains standards for signs, pavement markings and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, or bikeway by authority of a public agency having jurisdiction.

Many bicycle routes in Perth, Australia, cross perpendicular to the suburban railway lines. Gates automatically close upon the approach of a train. When open, they have a straight-through passage, facilitating ease of movement by cyclists, pedestrians, and people in wheelchairs. The crossings feature warning bells and flashing lights. Westrail also uses a variety of pavement treatments to offer visual cues to both motorists and trail users in transit station areas (Maher, 2000).

Updated: 2/11/2014
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