Public Access and the Landowner’s Liability

You are considering taking steps to preserve your land, but you are worried about some of the legal aspects. If you place a conservation easement on your property, does that mean you’ll have hikers and snowmobilers all over? What if someone sprains an ankle? Will you get sued?

Relax. First of all, Maine landowners who allow the public access to their property for recreation are specifically protected by Statue 14 MSRA Sec. 159-A: “An owner, lessee, or occupant of premises shall owe no duty of care to keep the premises safe for entry or use by others for recreational or harvesting activities or to give warning of any hazardous condition, use, structure, or activity on these premises to persons entering for those purposes.',' This statute is not an iron-clad defense against being sued, but it does make it a lot harder for anyone to win a suit. To understand why, you need to know some basic principles of liability: People are usually sued because someone thinks they failed in some legal duty. In other words, someone thinks they were negligent.

What duties do landowners have towards people on their property?

It partly depends on who those people are:

Duty to trespassers (yes indeed!)
The landowner has no duty to make his property safe for trespassers, but he must refrain from inflicting intentional, reckless, or malicious injury. (If someone trespasses onto our shooting range, you are not justified in shooting at them ‘just to give them a scare’.)

Duty to persons lawfully on the property
A landowner has a greater duty towards ‘licensees’ and ‘invitees’ than towards a trespasser. The landowner must take reasonable care’ to protect them against dangerous conditions, and to warn them of dangers that are not obvious. (Lawyers make their living arguing what is ‘reasonable’, what is ‘obvious’, and whether the landowner should have ‘reasonably known’ of the existence of a danger; any specific case will need to be discussed with a lawyer.)

What the Maine statute does is to treat the ‘general public’ as if they were trespassers. As stated in a handbook prepared by the Marine Law Institute, “Accordingly, the private landowner who chooses to allow the public on his land is under no legal obligation to maintain his property in a safe condition or to warn about potential dangers.” This is not without exception, however. If someone is individually invited onto the property, or for instance if an admission fee is charged, that person is an ‘invitee’ and is owed the higher duty of care. And of course, a ‘willful and malicious’ failure to guard even a trespasser from harm is actionable.

Risk Management
Thanks to this statute a landowner who allows public access really has very little liability, but that doesn’t mean no one will ever attempt to sue him. However, Maine courts have come down strongly on the side of the landowner, and have even allowed the landowner to recover court and legal costs in the case of a suit found to be frivolous. A normal homeowner’s insurance may cover any potential liability, or a separate policy could be discussed if you are particularly worried.

Precautionary measures
Although the statute removes the duty to prevent harm, no one wants anyone to get injured on their property. Inspecting potentially dangerous areas and removing hazards are a common-sense ‘ounce of prevention.’ You may also wish to post signs warning of hazards, but be aware that in other states, doing so has been interpreted to mean that you voluntarily accept the higher standard of care towards visitors. This has not been done in Maine, but it is a legal argument that you might want to discuss with your lawyer.

One last thing to remember. A conservation easement does not automatically mean that the property is open to the public. How much and what sort of public access you will allow is up to you, and you should bring up your concerns when planning the form of your easement.

Additional resources:
Washington Insurance Services, 1-800-526-3467,offers homeowner policies specifically geared to properties with easements