Decreased Landowner Liability for Recreation and Greenway Access and Easements

Forrest P. Merithew, Attorney at Law, practices recreation law, along with a number of other traditional practices areas, which relate to the recreation and related gear industries.  Forrest’s personal and professional experience in these areas allows him to understand the many challenges recreational companies and individuals face in the pursuit of responsible enjoyment of natural and artificial recreational sites.

Recently, I’ve come across an increase in outdoor recreation individuals, businesses, non-profits (such as the Carolina Climbers Coalition), and municipal entities interested in accessing natural recreational opportunities via private land, whether it be for greenway development or specific use of recreational sites.  For these folks and the sake of landowners interested in allowing access on or across their lands, sharing their lands for public recreation, or allowing their lands to be used by public in general, there are several options to allow such access and, at the same time, limit landowners’ liability.

The most common options are: (1) just allowing the public onto or across one’s land, thereby relying on North Carolina’s Recreational Use Statute; (2) an easement for or allowance of public use under NC’s Recreational Use Statute; (3) the conveyance of the fee title (usually for ultimate incorporation into some type of public land, such as a park or nature preserve); or (4) a “conservation easement” in favor of either a governmental entity or a non-profit organization, with the fee title (and control) remaining in the landowner.

As mentioned in a previous blog article on the necessity of using a license agreement to limit landowner liability when allowing others to collect firewood or perform other invited/public tasks on privately owned land, the duty of care owed to a invitee/licensee is to inform and warn of known dangers and decreasing unreasonable dangerous situations, while the duty of a private landowner to a trespasser is merely to refrain from willful and wanton infliction of injury.  Once private land is made open to the public, the relationship is that of an invitee/licensee, rather than a trespasser, so the landowner potentially has a greater duty to the public members accessing the land and, therein, greater potential liability.  However, North Carolina recognizes landowners’ (and users’) desires to provide not only public access and recreational opportunities, but also responsible and sustainable conservation, by enacting laws limiting private landowners’ potential duties and liabilities for providing such opportunities.

North Carolina Recreational Use Statute:

In an effort “to encourage owners of land to make land and water areas available to the public at no cost for educational and recreational purposes,” the North Carolina General Assembly enacted the Recreational Use Statute (N.C. Gen. Stat. § 38A-4), which limits the liability of landowners.  Except as specifically recognized by or provided for in the statute, a landowner who either directly or indirectly invites or permits without charge any person to use such land for educational or recreational purposes owes the person(s) the same duty of care that he or she owes a trespasser (refrain from intentional infliction of injuries or gross negligence), instead of the duty owed to an invitee/licensee.

N.C. Gen. Stat. § 38A-4 states:

“Except as specifically recognized by or provided for in this chapter, an owner of land who either directly or indirectly invites or permits without charge any person to use such land for educational or recreational purposes owes the person the same duty of care that he owes a trespasser, except nothing in this chapter shall be construed to limit or nullify the doctrine of attractive nuisance and the owner shall inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge. This section does not apply to an owner who invites or permits any person to use land for a purpose for which the land is regularly used and for which a price or fee is usually charged even if it is not charged in that instance, or to an owner whose purpose in extending an invitation or granting permission is to promote a commercial enterprise.”

Therefore, to use and rely upon the NC Recreational Use Statute the landowner needs to demonstrate that the activity or access involved was not a commercial activity, and no evidence exists showing that the landowner willfully or wantonly inflicted injury on the potential plaintiff.

It is important to note that the Recreational Use Statute does not absolve landowners of all liability. The attractive nuisance doctrine may still be applied, and a landowner must inform direct invitees of any known artificial or unusual hazards. However, landowners have no duty to warn trespassers or indirect invitees (public) of such dangers.

North Carolina Trails System Act:

The North Carolina Trails System Act provides stronger liability protection than the Recreational Use Statute for owners of land dedicated to be used in the state trail system.  Unlike the Recreational Use Statute, the Trails System Act does not contain the liability limitation exceptions for attractive nuisance or direct invitees.  The statute protects both the landowner who donates the land and any person who “has constructed, maintained, or caused to be constructed or maintained a designated trail or other public trail pursuant to a written agreement with any person who is an owner, lessee, occupant, or otherwise in control of the land.”

Easements:

Private landowners may provide non-profits or other entities interested in accessing sites via or on private land with an easement for access, thereby controlling the actual terms of use and maintenance, while transferring responsibility and potential liability for the access and/or site to the easement holder.  The general rule with easements is that it is not only the right but the duty of the owner of an easement to keep it in repair; the owner of the servient tenement (private landowner) is under no duty to maintain or repair it, unless otherwise outlined in the easement or underlying agreement itself.  If the character of the easement is such that a failure to keep it in repair will result in injury to the servient estate or to third persons, the owner of the easement will be liable in damages for the injury so caused and not the landowner. See Green v. Duke Power Co., 305 N.C. 603, 611, 290 S.E.2d 593, 598 (1982).  As part of its holding, the court in Green “follow[ed] the well-reasoned holding of the Hawaii Supreme Court that in such cases ‘it is the control and not the ownership which determines the liability.’”

In conveying a greenway easement for public use, a landowner not only receives the common law liability protection discussed above, but he/she is also afforded the liability protection provided by the Recreational Use Statute.  However, the greenway or trail might be deemed by the courts to be a “public way,” thus potentially making the landowner liable for injuries to persons using the greenway caused by hazardous conditions on his adjoining or adjacent private property.  Under the “public way” doctrine, an adjoining landowner may be liable for injuries to users of the public way from dangerous artificial conditions or falling tree limbs of which the landowner had notice and could foreseeably present a dangerous condition to the public.

Lastly, a private landowner may be liable for injuries to persons outside the premises caused by the activities of third persons on the land if the landowner knows or has reason to know that third persons would engage in the activity that causes the injury and thereafter has a reasonable opportunity to prevent, control, or warn others of such conduct.  Landowners do not, however, have a duty to periodically inspect their property to determine if other persons are carrying on dangerous activities or have created dangerous conditions to the property.

A landowner who has donated an easement for public use should take care to remove any identified dangerous condition that may foreseeably injure someone using the public land and to require that the easement holder clearly mark the boundaries of the easement.  By granting an access easement the landowner gives up the right to use it for any inconsistent purposes (i.e. development), and thus for all purposes donates “value”, potentially receiving tax break or other statutory financial incentives for the donated value.

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