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. Others
currently constructed, as a continuous
felt it would be tactically better at this time
public right of way.
to pursue informal discussions rather than
Note: HB 2003 was eventually adopted,
issue a formal letter.
but not before specific reference to “trails”
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