By Alex Mellor, Senior Risk Manager
In the spirit of Henry David Thoreau and John Muir, National Hiking Day, November 17, 2020, brought opportunities to exercise and appreciate the peace and beauty of the natural world. The protection afforded by California’s recreational trail immunity empowers public entities to encourage residents to explore local trails without fear of liability.
Under the California Tort Claims Act, public entities are afforded a variety of statutory immunities. One such immunity is recreational trail immunity, which shields public entities (and private property owners who grant public easements to public entities) from liability for injuries caused by a condition of any unpaved or paved recreational trail [¹]. This immunity exists to encourage public entities to allow their property to be used for recreational purposes without the fear of potential litigation resulting from public use of the property.
Located in northern San Diego County, the City of San Marcos offers approximately 63 miles of multi-use recreational trails to residents and visitors. Stewardship of the trail network is a true community effort. While the city has park operations staff who maintain the trails, they are supported by park rangers who regularly hike the trails and provide education and assistance to the public. These efforts are further supported by the Friends of San Marcos Parks and Recreation, a nonprofit organization dedicated to enhancing the city’s parks and recreation facilities.
According to San Marcos Recreation Program Manager Andrea Gonzalez, the trail network is an invaluable community resource and has become even more important as community members seek safe and effective ways to recreate during the coronavirus pandemic.
“During the pandemic we have seen a 100 percent increase in the use of city trails. Residents who used to engage in other forms of recreation that are currently unavailable are now taking advantage of city trails.”
Gonzalez also highlighted the easy accessibility and mental health benefits of hiking and other outdoor modes of recreation.
“One of the great things about hiking is its inclusive nature. All you need is a pair of walking shoes and the motivation to get outside. Outdoor recreation also has benefits for mental health. Recreating in a natural environment stimulates feelings of relaxation and tranquility. I think that’s something we could all use in these challenging times.”
When asked what impact the absence of recreational trail immunity would have on the San Marcos community, Gonzalez didn’t beat around the bush.
“It would be devastating. If the city had to assume liability for injuries that occurred on our trails, the financial impact would be immense. Some or all of the trails might have to close and that would have a hugely negative impact on the San Marcos community.”
Recreational trail immunity is an absolute immunity that applies to the “condition” of the trail. However, it does not apply to conditions unrelated to and not part of the trail. For example, in 2013, a branch fell from a eucalyptus tree and struck a woman while she was walking through Mission Bay Park in San Diego. An appeals court ultimately held that the city was not entitled to recreational trail immunity because the claim was not based on a condition of the trail itself, but rather on alleged negligent maintenance of the adjacent eucalyptus tree (Toeppe v. City of San Diego).
For any unpaved or paved trail on a public entity’s property, there is no duty to maintain the trail, or to warn of any condition of the trail, or liability for a hazardous condition of the trail. Conversely, for any paved trail, walkway, path or sidewalk on an easement granted to the public entity for the purpose of providing access to unimproved property, the public entity must reasonably attempt to provide adequate warnings of the existence of any condition that constitutes a hazard to health or safety.
In light of this, for any paved trail that provides access to unimproved property that is obtained through an easement, the following suggestions are made to help trail managers reduce their entity’s exposure to liability [²]:
- Create comprehensive, written standards for trail-building and maintenance and adhere to them.
- Regularly inspect and maintain paved trails, and indefinitely retain documentation of inspections and corrective actions.
- Warn of known hazards by installing signage where appropriate.
For any trail, paved or unpaved, the following suggestions can be considered:
- Close trails if dangerous conditions such as wildfire, extreme heat, land movement, etc. exist.
- Install bollards or similar barriers at trailheads to prevent motorized vehicle access.
- Install informational signs at trailheads indicating authorized use. For example, e-bike use is permitted on some trails but not on others.
- Create an emergency plan that facilitates providing rapid assistance to trail users who may get into trouble. This can include ensuring first responders are familiar with the area, know how to locate and access trail users, and have access to any locked gates.
- Ensure that developed trailheads are ADA accessible. While certain individuals with disabilities may not be able to access the trail network, public entities have an obligation to ensure facilities such as restrooms and visitor centers are accessible.
Providing innovative risk management solutions for its public agency partners for more than 40 years, the California Joint Powers Insurance Authority (California JPIA) is one of the largest municipal self-insurance pools in the state, with more than 120 member cities and other governmental agencies. Members actively participate in shaping the organization to provide important coverage for their operations. The California JPIA provides innovative risk management solutions through a comprehensive portfolio of programs and services, including liability, workers’ compensation, pollution, property, and earthquake coverage, as well as extensive risk management training and loss control services.