Les Earnest

12769 Dianne Drive; Los Altos Hills, CA 94022

Email les@cs.stanford.edu                              Phone  650-941-3984

 

2005 August 9

 

Town Council

Town of Los Altos Hills

26379 Fremont Road

Los Altos Hills, CA 94022

 

Subject: Proposed path indemnification for landowners

 

Reference:

[1] “Accepting Liability for Public Use of the Trail” in “A Landowners Guide to Trail Easement Dedication,” Santa Clara Countywide Trails Master Plan, http://www.parkhere.org/scc/assets/docs/47648landowner_guide.pdf.

 

Dear Mayor Breene Kerr, Craig Jones, Jean Mordo, Mike O’Malley, and Dean Warshawsky:


As a step toward assuaging property owners' concerns about liability stemming from the granting of pathway easements, I advocate that the Town adopt a landowners indemnification policy such as the one suggested below. This idea was proposed to the Pathways Committee in March and, after mulling it over, the Committee adopted a resolution at their meeting on July 25 calling on the Council to adopt and publish such an indemnification policy.

 

MOTIVATION

 

The Town is responsible for maintaining public paths in a safe condition, just as for public roads, so anyone making a claim or initiating a lawsuit over an alleged failure to meet this responsibility will almost certainly sue the Town. I believe that the incremental cost of indemnifying landowners, who are responsible only if they deliberately create a hazard, will be minimal and that adoption of a policy such as the one below would not expose the Town to significantly greater risk. Adopting a policy such as this should eliminate some of the anxiety that has been expressed in public hearings about liability associated with pathway use.

 

POLICY

 

Here is a possible indemnification policy, which is a paraphrase of the one being used by Santa Clara County for their trail system [1].

 

Landowners who grant easements for public paths and those with property immediately adjoining shall be indemnified by the Town of Los Altos Hills from liability for injuries suffered by users of such a path as long as the injury was not caused by a landowner's willful or malicious conduct. The indemnity will include the costs of defending the landowner against all liability claims brought by the users of Town paths as well as the costs of damage awards and other costs associated with such claims. Landowners also will be covered by all state codes that limit the liability of landowners immediately adjoining public trails for injuries to trail users who trespass off the trail and onto private property. These State Indemnification Codes include California Recreational Use Civil Code 846 and Public Resources Code 5075.4.

 

If you agree that the Town should adopt a pathway indemnification policy, as the County has, I expect that you will want to have it reviewed by legal counsel.

 

Best regards,

 

Les Earnest