Cresheim Trail Liability
MEMORANDUM
TO: Springfield Board of Commissioners
FROM: Sean P. Kilkenny, Esq.
DATE: March 9, 2011
The Board of Commissioners requested that I provide them with information regarding the liability risks to property owners or Leasee’s whose property would fall within the scope of the Cresheim Trail.
Specifically, this issue was raised by business owners along Ivy Hill Road during the Monday night workshop meeting. These business owners currently lease portions of land that are owned by PECO. If the trail were to move forward on “PECO” land then PECO would most likely request that the Municipality in exchange for the use of the land indemnify PECO against future claims due to a defect in the property.
Therefore, if an individual is harmed while traversing the Cresheim Trail the Municipality, the Leasee (business owner) and PECO would most likely be sued for damages. The indemnification to PECO that the Municipality will most likely have to provide in order to gain access to the property will serve to protect PECO from suit and they would most likely be dropped as a party.
The Municipality and the business owner would therefore bear the risk should a civil action moved upon.
The Cresheim Trail would fall under the Recreational Use of Land and Water Act. (RULWA) There are two exceptions to the ordinary negligence immunity under the RULWA. (1) Willful or malicious failure to guard against a dangerous condition, use, structure or activity; or (2) for injury suffered in any case where the owner of the land charges admission to use the land for recreational purposes. 68 P.S. 477-6. For willful or malicious failure to guard or warn about a dangerous condition the courts look at whether the owner had knowledge of the threat and two is the defect obvious. If the defect is obvious users are considered on notice and then the landowner is immune. I assume no one will be charging to use their portion of the path so there is no need to explore that issue.
The other way to lose immunity is for an improvement to be constructed on the land. In reviewing the case law, examples of improvements were swimming pools, bleachers, basketball courts and playgrounds. Structures that are not a part of the land or trail but are added for other purposes. A description of improvements that was written in a memo on the RULWA by the Pennsylvania Department of Preservation and Natural Resources, describes improvements as land that is developed. In these instances that County is not developing the land for recreational purposes,( i.e. building a playground) they are merely creating a path to allow individuals to enjoy the sights and fresh air of Springfield Township.
As outlined above, The Township may, depending on the facts of the particular case, have defenses available to it. To the extent that an injury is incurred as a result of using the trail, the business owners’ exposure to liability will be minimal as they are merely lessees of PECO and won’t be responsible for the maintenance of the trail.