Access to some peaks at risk over liability worries
Proposal to update recreational use law fails; opponents cite current protections
Access to some of Colorado’s most popular fourteeners could be in jeopardy this summer over the concern that current Colorado law protects private landowners adequately.
A panel of state senators, by a 3-2 vote, rejected a proposed update to Colorado’s recreational use law Wednesday. Proponents argued the bill, Senate Bill 23-103, is necessary to give private landowners peace of mind to keep recreational access open. Some testified that they worry a recent legal case has opened them up to lawsuits from people who get hurt recreating on treacherous backcountry land they own.
A group of lawyers, whose position ultimately carried the day, instead argued current law already protects private landowners who give recreators free access to their land — and changing it would prevent all but the most egregious of cases of dangerous land stewardship from being brought.
Access to the Decalibron trail — named for the four 14,000-foot peaks on its route — runs through parcels owned by John Reiber and Patrick Schilken.
Neither said they want to cut off access to the popular peaks, but concerns about liability may force their hands.
Neither had made a decision immediately after Wednesday’s hearing by the Senate Judiciary Committee. About 30,000 hikers made the trek last year, according to testimony.
Reiber said he learned just Tuesday his insurance won’t cover him if a hiker gets hurt on the trail. He’s going to look for more options but ultimately can’t risk his financial well-being. Even a failed lawsuit from someone trying to hold him liable could prove ruinous. He has previously, and temporar
ily, shut access over concerns about safety and liability.
“I’m going to have to sit back and consider what the future is,” Reiber said. “I may be forced to say thanks to all that helped, but I can’t risk my family’s security.”
Colorado’s recreational use statute was put to the test after a 2008 bike crash on Air Force Academy property. In that case, academy officials were aware for weeks of a sinkhole on a recreational bicycle trail but didn’t cordon it off or post any warning.
A bicyclist, James Nelson, couldn’t see it because of shadows and suffered a catastrophic crash. According to his lawyer, he was left “teetering on the edge of death.”
A district judge found the academy responsible and awarded Nelson and his wife $7.3 million in damages. But their lawyer, David Hersh, argued to the Senate committee Wednesday that it was only the extremely specific circumstances that led to that result. He and other opponents to the change argued that this one successful case in the 26-year history of the recreational use protections being law proves the law’s effectiveness.
“( That case) is what I consider to be a unicorn,” Hersh said. “I’ve turned down dozens, if not scores, of cases where claimants believed that they should have a claim but the recreational state use statute prohibits it because of the immunity that is granted to landowners.”
The ruling otherwise didn’t change anything about how the state law is interpreted, Hersh said — but instead proves how high the bar is to successfully sue landowners for willful or malicious failure to warn or guard against dangerous conditions.
Michael Kane, opposing the bill as a member of the Colorado Trial Lawyers Association, warned the proposal would take that to another level and give recourse to people only “under the most malicious conduct” by landowners.
None of the lawyers were arguing for closing access to recreation or outcomes that would lead to that. They just felt the current law was effective at its purpose.
It swayed the Democrats on the committee. State Sen. Dylan Roberts, an Avon Democrat, said he didn’t want to react to this specific case and that things like signs and public awareness could mitigate concerns.
“If (outdoor recreators) are unjustly harmed, they deserve a legal remedy for that,” Roberts said. “I don’t think it should happen every time. I don’t think it should happen most times. And that’s what the Colorado recreation use statute, as currently written, is doing.”
State Sen. Mark Baisley, a Woodland Park Republican, brought the bill with the intent of keeping peaks open and keeping private property owners protected. He noted that many Coloradans see hiking all of the state’s 14,000-plus-foot peaks as a rite of passage. Several are either privately owned outright or involve crossing private property.
“If we do not pass this bill, we may lose a lot of what Colorado is, and that’s access to peaks and views and a lot of what’s in between,” Baisley said during the hearing. He and other senators noted it’s likely an issue to return.
The bill had the support of many of the state’s outdoor advocacy organizations, including the Colorado Fourteeners Initiative and the Colorado Mountain Club. Many described a sea change in how they thought about recreational use protections stemming from a lawsuit.
Sen. Bob Gardner, a Colorado Springs Republican, noted that perception of the law’s applicability and how it is actually interpreted can be separate things. Cautious lawyers worrying about protecting their clients likely would urge them to put up no-trespassing signs — and thus cut off access to most law-abiding people, Gardner, who is an attorney, said.
One case in decades or not, the lawsuit against the Air Force Academy still leaves “this perception that there’s risk,” Gardner said before his yes vote.