Trails and Greenways


Previous LandSavers webcasts have promoted conservation easements as an effective way to accomplish land protection. One question that sometimes comes up during the easement negotiation process is the nature and extent of the landowner's — or easement holder's — potential liability for allowing members of the public onto the property.

First, readers should be aware that conservation easements in general do not require public access in order to be tax deductible (unless that is at the core of their "conservation purpose".)

( Click here to learn more.)

If an easement is purchased with governmental funds, though, one of the most common "strings" the agency will attach is requiring some form of public access. Depending on the property and the public agency involved, the access required might be fairly limited, such as allowing small groups to view a particular natural feature no more than four times yearly, with advance written notice.

However, otherwise interested landowners may be reluctant to allow even limited public access because they are nervous about being sued by someone injured on their property. And easement holders such as land trusts and municipalities also may wonder about their potential liability for tours and public use of their lands.

This LandSavers webcast provides an overview of the Recreation Use of Land and Water Act, a Pennsylvania law that can protect easement grantors and holders from liability in such situations. Municipalities and conservation organizations, as well as landowners considering granting an easement, should become familiar with this important statute and its related caselaw.

• Pennsylvania's Recreation Act
• Protection for easement holders



The Recreation Act


Pennsylvania's Recreation Use of Land and Water Act (the "Recreation Act"), (codified at Pennsylvania Statutes Annotated, title 68, sections 477-1 et seq.), was created in 1966 to generate additional recreational areas for the public. The Act encourages property owners to open their lands for recreational purposes by immunizing them from negligence liability.

When the Recreation Act is applicable, it protects:
  • landowners
  • from negligence liability for injuries suffered
  • by people using the land
  • for recreational purposes
  • without a fee.

    The Act works by limiting the traditional duty of care that landowners — including easement donors and sellers — owe to entrants upon their land. It essentially demotes recreational users from "invitees" (who are owed affirmative inspection and warning duties by the landowner) to mere "licensees."

    ( Click here to view the Act's lower" duty of care". )

    Although negligence liability is negated by the Act, a landowner remains liable to recreational users for "willful or malicious failure to guard or warn" against a dangerous condition. For instance, absent the Recreation Act, not posting signs that a trail on your land is dangerously steep could be considered "negligent." Under the Act, however, there is no duty to post such signs. On the other hand, if you string a hard-to-see wire across a snowmobiling trail as a deterrent to public use, this would be "malicious" conduct unprotected by the Act.

    ( Click here to read the Act's liability section. )

    Not all "Land" is created equal
    Subsequent judicial cases have interpreted what is considered "land" covered by the Recreation Act. Highly developed recreational areas are now interpreted to be outside the law's scope, under the reasoning that users of areas such as ballfields and swimming pools have a right to expect regular maintenance. This narrowed definition of "land" does not affect the vast majority of conservation easements, which by their nature protect undeveloped land.

    ( Click here to see the Act's definition of "land". )



    Though not all land is covered by the Act, the Acts' definition of "recreation purpose" is broad enough to include almost any reason for entering onto undeveloped land, from hiking to nature study to water sports.

    ( Click here to see the Act's definition of "recreational purpose." )

    Other cases have confirmed that charging recreational users a fee ( which is different than accepting payment for an easement ) takes the property out from under the Act's protection. It was also established that the Act's immunity is available to both public AND private entities, so long as they are "owners" of land. As noted in the Stanton case discussed below, the Act's definition of "owner" broadly includes fee owners, tenants, possessors, and occupants.

    ( Click here to see who is an "owner" under the Act. )

    What if there is public use but no easement?
    The Recreation Act's immunity is available where an easement specifically allows public access, is silent about access, or prohibits public access — as well as where there is no easement, but the public is tacitly allowed to enter on or walk across a property.

    For instance, in Rightnour v. Borough of Middletown, 120 Dauph. 318 (Feb. 20, 2001), a landowner was sued by the parents of a boy who had drowned after walking from a municipal park onto the defendant's land, which contained a worn footpath that led to the Swatara Creek. The court ruled that: 1) the path, created by continuous usage, was not an "improvement" that would cause the property to be deemed "highly developed land" ( which would have negated Recreation Act protection); 2) under the Act's lower duty of care, the landowner had no duty to put up a fence between his property and the adjacent park; and 3) the landowner had no duty to post a warning sign about the creek, even though he was aware people used the footpath on his property.

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    This series is for general information only and is not intended to provide legal or tax advice. Laws may be amended or court rulings made that could affect the information provided herein. Heritage Conservancy and EFP/GreenWorks Media Center assume no responsibility for errors and omissions or any
    liability for damages resulting from use of this material.



      Easement Holders Protection

    We have seen that a landowner who allows public access (via an easement or as a matter of course) may be protected by the Recreation Act. It was not clear until earlier this year, however, whether easement holders also could claim the immunity protections of the Act.

    A recent Pennsylvania Superior Court case, Stanton v. Lackawanna Energy, Ltd., 822 A.2d 707 (Pa. Super. 2003), should give easement grantees such as land trusts and municipalities comfort on the liability front.

    The facts
    Jesse Stanton was injured while riding a motorbike on land owned by Lackawanna Energy, Ltd. The land, covered mostly with brush and trees, was crisscrossed by dozens of dirt trails used by area residents for free recreational purposes. Pennsylvania Power and Light Co. (PP&L) purchased an easement over a portion of the land to construct electric power transmission towers. Ten-year old Jesse was injured when he crashed into a gate PP&L had erected at the entrance to an access road servicing the easement.

    Jesse's parents argued that easement holder PP&L was negligent in placing a gate at the top of a hill, directly in the path of a known trail; and that it negligently closed the gate when on prior occasions the gate had remained open.

    The analysis

    As a threshold matter, property law requires that to be held liable for an injury, the defendant must exercise sufficient control over the property to be deemed a "possessor." The Stanton court first noted that some, but not all, easement holders exercise enough control over an easement area to be regarded as possessors.

    The court viewed PP&L as a possessor because it exercised significant control over the eased area, retaining the right to construct access roads, erect power lines, and install gates. By contrast, in LandSavers' opinion, most holders of conservation easements exercise very limited control over their eased properties, typically reserving the right only to prevent owners from engaging in specified uses or actions. One could argue then that most conservation easement holders are not even "possessors" who could be sued by third parties for injuries suffered on the easement premises.

    After determining that PP&L was subject to being sued, the Stanton court looked at whether PP&L was immune from such liability under Pennsylvania's Recreation Act. There was no question that most elements of the Act were in place: PP&L allowed (or at least did not prevent) people from using the undeveloped land for recreational purposes free of charge; and there was no allegation that the company's installation or operation of the gate was "malicious." The sole legal question in the case was whether PP&L, as an easement holder, qualified as an "owner" of land under the Act.

    In addition to titleholders and tenants, as noted above the Recreation Act expressly covers an "occupant or person in control of the premises." The Stanton court concluded that if an easement holder exercises sufficient control to be subject to liability as a possessor, it must also be deemed an "occupant or person in control" pursuant to the Recreation Act. Thus, easement holders are immune as a matter of law from claims of negligence liability on land covered by the Recreation Act. Put another way, the same evidence that would subject an easement holder to liability (i.e., evidence that it exercised sufficient control to be a "possessor") bars imposition of liability (because possessors are immune under the Recreation Act). Conversely, if an easement holder can show that it did not exercise the requisite degree of "control" over an eased area, it would not be immune under the Act, but it could not be found liable under general principles of premises liability!

    Conclusion
    The holding of this case and other Recreation Act cases should be considered when drafting and negotiating conservation easements. If some portion of an eased property will be held open to the public, the text of the easement document could make direct reference to Recreation Act immunity for the benefit of the landowner and/or the easement holder. It may also be wise to weigh the pros and cons of charging fees for tours or visits to eased properties.

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