Les
Earnest
Email les@cs.stanford.edu Phone 650-941-3984
2005 August 9
Town Council
Town of Los Altos Hills
Subject: Proposed path indemnification for landowners
Reference:
[1] “Accepting Liability for Public Use of the Trail” in “A Landowners Guide to
Trail Easement Dedication,” Santa Clara Countywide Trails Master Plan, http://www.parkhere.org/scc/assets/docs/47648landowner_guide.pdf.
Dear Mayor Breene Kerr, Craig
Jones, Jean Mordo, Mike O’Malley, and Dean Warshawsky:
As a step toward assuaging property owners' concerns about liability stemming
from the granting of pathway easements, I advocate that the Town adopt a landowners
indemnification policy such as the one suggested below. This idea was proposed
to the Pathways Committee in March and, after mulling it over, the Committee
adopted a resolution at their meeting on July 25 calling on the Council to
adopt and publish such an indemnification policy.
MOTIVATION
The Town is responsible for
maintaining public paths in a safe condition, just as for public roads, so
anyone making a claim or initiating a lawsuit over an alleged failure to meet
this responsibility will almost certainly sue the Town. I believe that the
incremental cost of indemnifying landowners, who are responsible only if they
deliberately create a hazard, will be minimal and that adoption of a policy
such as the one below would not expose the Town to significantly greater risk.
Adopting a policy such as this should eliminate some of the anxiety that has
been expressed in public hearings about liability associated with pathway use.
POLICY
Here is a possible
indemnification policy, which is a paraphrase of the one being used by
Landowners
who grant easements for public paths and those with property immediately
adjoining shall be indemnified by the Town of Los Altos Hills from liability
for injuries suffered by users of such a path as long as the injury was not
caused by a landowner's willful or malicious conduct. The indemnity will
include the costs of defending the landowner against all liability claims
brought by the users of Town paths as well as the costs of damage awards and
other costs associated with such claims. Landowners also will be covered by all
state codes that limit the liability of landowners immediately adjoining public
trails for injuries to trail users who trespass off the trail and onto private
property. These State Indemnification Codes include California Recreational Use
Civil Code 846 and Public Resources Code 5075.4.
If you agree that the Town
should adopt a pathway indemnification policy, as the County has, I expect that
you will want to have it reviewed by legal counsel.
Best regards,
Les Earnest