Forrest Merithew Published in Capital Play Magazine

In October, Capital Play carried an article written by Forrest Merithew earlier this year. The article is below and linked to the original at Capital Play.

Forgive Us Our Tresspasses

A billionaire landowner in Northern California recently went to extreme lengths to prevent the public from accessing a private beach via a long time used road that runs through his 89 acre coastal property, located just five miles south of Half Moon Bay. His efforts included constructing a locked gate across the road, putting up multiple signs against trespassing and stating the property was closed, painting over signs along the local highway inviting the public to the beach, and hiring private security to scare, harass, and chase away people attempting to access the beach. The wealthy landowner, Vinod Khosla, one of the founders of Sun Microsystems, stated that he did all of this because he was concerned about liability exposure to members of the public crossing his land.

In September, a California Court Judge told Mr. Khosla that he couldn’t prevent or block the public from accessing the beach. The Court’s decision was based on the Coastal Development Act’s liberal definition of “development”, as argued by attorneys for the Surfrider Foundation, wherein physical change to land is not required, but simply a change of intensity of use and access may trigger the Act’s requirement for a permit to take such actions. Mr. Khosla had failed, or rather not attempted, to secure such a permit and now must do so if he wishes to prevent public access. That, or appeal the Judgment in the hopes of a different outcome. What is more relevant to the general public and landowners is Mr. Khosla’s defense allegation – the issue of private landowner liability to members of the public. This is especially true in Western NC because it is a hot spot for recreational activities and sites, such as swimming holes, natural climbing locales, mountain bike trails, and other locations of outdoor adventure and recreation. A good number of these opportunities may only be accessed across or on private property.

Property owners may not be familiar that many states, including North Carolina and California, have what are described as “Recreational Use Statutes”, which limit landowner liability when members of the public are allowed free access to or across private lands for recreational or educational opportunities. This limitation of liability is similar to that provided by business entity structures, in that it limits the liability of the property owner for injuries or other damages to individuals crossing or using the land, except for those caused by intentional acts by the landowner or known and extreme dangers on the land.

As more people are moving to Western NC and, in conjunction, new recreational spots are discovered, I’ve experienced an increase in outdoor recreation individuals, businesses, and associations (such as the Carolina Climbers Coalition (CCC), Southern Off-Road Bicycle Association (SORBA), and other fishing and hiking groups) interested in accessing natural recreational opportunities on or via private land. If landowners are interested in allowing access on or across their lands, sharing their lands for public recreation, or allowing their lands to be used by the public in general, there are rules and options in place that can limit their related liability.

Once private land is made open to the public, the legal relationship evolves from that of trespasser to invitee/licensee status. This means that a landowner would have a greater responsibility to members of the public on the land and, therein, greater potential liability. Here is where Mr. Khosla’s concerns lay. However, North Carolina General Statute § 38A-4, NC’s Recreational Use Statute, limits private landowners’ potential duties and related liabilities when they make land and water sites available to the public for educational and recreational purposes at no cost. In this situation the landowner has almost no liability to members of the public, who are then legally classified as “trespassers” for liability evaluation purposes, except for intentional acts or known dangerous defects or conditions. However, landowners do not have a duty to periodically inspect their property to determine if other persons are involved in dangerous activities on or have created dangerous conditions to the property.

It’s important for property owners to note that the Recreational Use Statute does not absolve private landowners of all liability. Besides the trespasser minimum requirements of intentional acts and known dangerous conditions, the attractive nuisance doctrine still applies. This doctrine may hold a landowner liable for injuries to trespassing children when the cause of their injury was a condition that attracted them (or youth in general) onto the property in the first place, such as large construction equipment, a swimming hole well known to be used by local youth, or other enticing condition to juveniles which may also cause injury.

The Recreational Use Statute is not the only NC law that provides limited liability protection for property owners who allow public access on their private lands. The North Carolina Trails System Act, under Article 6 of the North Carolina General Statutes, provides even stronger liability protection for owners of private land dedicated to the State trail system. Unlike the Recreational Use Statute, the Trails System Act does not contain the liability limitation exceptions, so the limited liability applies to all users, including youth and invited guests. Further, this Act and its statutes protect 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.”

An additional option for private landowners looking to limit liability in situations of public access are partial land donations or easement agreements. These also allow the property owner to control the terms of use and maintenance, through the terms of an agreement, while simultaneously transferring potential liability to the easement holder (i.e. non-profits, municipal entities, or associations). The general rule with easements is that it is not only the right but also the duty of the holder of an easement, not the landowner, to maintain and keep the subject property in repair, unless otherwise specified in the easement itself. In support of this idea, North Carolina Courts have held that ‘it is the control and not the ownership which determines the liability.’” See Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593, 598 (1982).

It is important for owners of property next to greenways or public trail systems to realize they may still have liability to members of the public using the allotted pathways. So Mr. Khosla may have not been entirely incorrect with his assumptions and concerns. The courts may deem a greenway or trail to be a “public way.” Under the public way doctrine, a landowner may be liable for injuries to users of the public way from dangerous conditions, such as rock slides or falling tree limbs, originating from the private property adjacent to the route. This may be particularly true if the landowner had notice and could have foreseen the dangerous condition, such as dead or overhanging trees or branches.

Finally, a landowner who has allowed their property to be used for public use or donated an easement should take care to remove any identified dangerous condition that may foreseeably injure someone using the public sections of land and, if applicable, 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 the section of property covered by the easement for any purpose inconsistent with that outlined in the easement agreement. Thus, for all purposes the landowner donates “value”, which can potentially provide him or her a tax break or other statutory financial incentives for making such donations.

Whether a property owner is a billionaire or just a civic minded individual, there are systems and laws in place to limit private landowners’ potential liability when allowing the public access to or across their private lands. As a result, landowners don’t need to hire private security, threaten visitors, or take other actions to prevent such access unless they wish to do so for their own reasons and costs. Many times the non-profits, municipalities, or other associations interested in accessing land or trails are willing to put the time and money into creating an agreement or sale of partial property, in order to achieve their organizational goals. These agreements can include terms covering maintenance, condition, status, and more depending on each side’s desires and goals. And, as always, it is important for the terms of any agreement to be clear and outline the liability and responsibilities of all parties involved.

The information contained above is not be intended to be legal advice or create an attorney client relationship. Forrest Merithew is a North Carolina and California licensed attorney, practicing out of Asheville, North Carolina. While Forrest does consult with business around the Country, this information generally involves the application of North Carolina laws. If you have any questions about the material contained herein please contact Forrest P. Merithew at FMerithewLaw@gmail.com. Forrest Merithew is owner and principal of Forrest P. Merithew, Attorney at Law, based out of Asheville, NC. Forrest practices in an array of civil and commercial areas. He also serves on Asheville’s Greenway Committee. Forrest writes regularly about legal issues affecting outdoor recreation and gear businesses and activities.

See the original article published at Capital Play, here: https://www.capitalatplay.com/forgive-us-trespasses/

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