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About The Southwest Portland Post. (Portland, Oregon) 2007-current | View Entire Issue (July 1, 2009)
July 2009 POLITICS The Southwest Portland Post • 9 Should property owners be liable for accidents on trails? COMMENTARY By Lee Perlman The Southwest Portland Post Legal liability – what happens if someone gets hurt – has been a thorn in the side of many enterprises. In recent months, it has become a direct threat to the existence of one of southwest Portland’s major volunteer accomplish- ments – its trail network. Under the leadership of Don Baack, the Southwest Neighborhoods, Inc. Trails Committee has mapped seven trails through southwest Portland, and gone a long way toward making them a reality through physical volunteer labor. They have drawn admiration from pedestrian advocates throughout the city and beyond, and they are a par- ticularly important asset in hilly terrain without a grid street system where amenities such as sidewalks often don’t exist. The trails go along or across streets at points, through parks or other public property, and along the edges of private property where there is a legal easement for a road that doesn’t exist and prob- ably never will. But what happens if someone is hurt while walking on the trail? Justifiably or not, on the trail? Cur- rent law gives them the right to sue for damages, and as things stand they would sue the adjacent property own- ers. This has given pause even to people otherwise okay with the trail system. Multnomah Presbyterian Church, which has been asked to allow part of a trail to extend through its property, has balked specifically because of the liability issue. Baack thinks the City of Portland should assume liability for the trails. The City, as represented by the Portland Bureau of Transportation, has histori- cally resisted this; at the least, they want assurances that the trails will be built to City standards. Baack agrees to this, although he has at times taken issue with public agen- cies over proper standards for public rights of way. As to trail maintenance, he said the Trails Committee would take care of that, and has done so except lately, when they have been faced with the prospect that their work would be for naught. Baack would expect the City to step in to deal with a major problem, such as a landslide or a large tree fall. According to Baack, years ago an aide to then City Commissioner Jim Francesconi, Michael Harrison (not the planner of the same name) sought and received approval for the City to as- sume trail liability, but Francesconi left office before it could be implemented. “The City is speaking with two voices,” Baack complained. There may be a way around the is- sue. A measure currently before the legislature, House Bill 2003, exempts owners of land from liability if others are injured while gardening there; an amendment makes the measure ap- plicable to trails and people who walk on them. At a recent SWNI board meeting, Jim Thayer of the Southwest Hills Residen- tial League, a trail supporter, said of this measure, “The Bill seems like a viable vehicle to bring closure on this. It’s not perfect, but it’s workable.” At the same meeting, Lee Buhler of South Portland said, “Liability is a red herring; some homeowners don’t like people walking near their property.” This is certainly true, al- though it is not a universal sentiment. Several trail neigh- bors contacted by The Post declined to be quoted on the issue, in one case out of fear of retribution. One neighbor of Trail Six commented, “I think a lot of people would prefer that so many people weren’t walking past their property regularly, but the people who use trails generally aren’t the sort of people you have to worry about. At least it means that they’re not driving.” Others find the experience less benign, and object to the Don Baack and his dog Tasha hike on a trail near their loss of a privacy they thought home in Hillsdale. (Post file photo by Polina Olsen) they had the right to expect. In one case, on Council Crest, a ho- had been deleted from it; the bill was in- meowner purchased the easement to tended to deal with liability related to com- prevent people from walking past his munity gardens. Is it still relevant to the property; in that case Baack was able to use, maintenance, etc. of trails? There was find an alternate route for that section some confusion on this point. of the trail. At last month’s meeting the SWNI board Baack notifies property owners of adopted a letter drafted by Don Baack to intent to build a trail next to them, and City of Portland officials that set out the he makes some effort to accommodate following points: The City should assume them, but he takes the position that liability for all trails on public right of ways. they have no right to refuse to have a All trails built on built rights of way will trail next to them. Easements are either have appropriate permits “as determined by public property or agreed to by owners the proper authority.” when the property was subdivided. Additionally, all permitted trails will be To give neighbors a say in this mat- inspected. Such trails will be maintained ter, he said, would mean that the City by the City “with the support of volunteer “by default is giving use of the land to organizations where such exist or can be adjacent property owners who don’t recruited.” own it and don’t pay taxes on it.” It The vote was 6-5 with four abstentions. would also almost certainly make it Some of those dissenting and abstaining felt impossible to retain the trail network as the letter as drafted was too vague. 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