Indemnification for Voluntary Trail Easements

DATE: April 5, 2000 
TO: Board of Supervisors 

The County has been working to establish a system of non-motorized recreational trails for its citizens. The challenge has been to establish a quality trail system that is balanced with a respect for the rights of private property owners. In order to encourage voluntary participation by property owners, the County should consider providing immunity from legal liability.

This is a request for the Board of Supervisors to adopt an ordinance that would relieve private property owners from legal liability on a public trail easement crossing or adjacent to their land.

Recommendation: Chairwoman Jacob
Direct the Chief Administrative Officer to return to the Board of Supervisors in 30 days with an ordinance that provides the following:

The County of San Diego will indemnify the owner of a parcel of land on which a trail has been voluntarily dedicated for public use as an equestrian, pedestrian, or other type of non-motorized recreational right of way, by final or partial map, or otherwise, and expressly accepted by the County of San Diego on behalf of the public, and the County shall indemnify the owner of any parcel adjacent to said trail, from all claims, demands or liability for injury to person or property that occurs on the trail when used for the aforementioned recreational uses, excluding injury occurring in any of the following circumstances:

1) The owner's willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity;

2) Where permission for recreational use when granted for a consideration other than the benefit received at the time of dedication;

3) Where the person suffering injury was expressly invited by the owner to use the trail for a recreational purpose rather than merely permitted to use it;

4) Where the person suffering injury is a member of the owner's household

Fiscal Impact

Some private property owners have expressed an interest in granting a public trail easement but have concerns about the legal implications of such a decision. The primary concerns expressed are lawsuits and associated legal costs resulting from damages, injuries or accidents.

The State Attorney General has opined that a county may agree to indemnify private landowners from liability for injuries sustained by persons using trails adjoining or traversing the landowners= properties. The Attorney General further opined that the County and any grantor of a public easement will be immune from liability to any trail users who are injured by some condition of the trail.

In addition, the Attorney General states that offering indemnity serves a public purpose, and thus would not constitute a gift of public funds.

There is a direct public benefit to providing both legal protection for private property owners and public access for recreation trail enthusiasts. Indemnification is the key to developing a successful regional trail system that would benefit trail users, property owners and our citizens. In the interest of promoting non-motorized recreational trails, I urge the Board to move forward with the adoption of an ordinance that would ensure indemnification.

Respectfully submitted,