Trail Liability Concerns and Michigan Statutory Law

Trail Liability Concerns and Michigan Statutory Law
By Bob Wilson, Executive Director

Trail owners and operators and those considering trail development are frequently faced with issues of concern over liability exposure from trail users that use the trails and from adjacent landowners who may fear being put at risk from similar exposure.  The Michigan legislature has acted in a variety of ways to address those issues to help encourage the safe operation of trails and to provide protection for adjacent landowners. The following summary of those laws is not meant to provide specific legal advice but to serve as a guide for those actively engaged as either a trail owner or an operator or considering trail development.

The Recreational Trespass Act, being Part 731 of the Natural Resources and Environmental Protection Act a MCL 324. was passed by the Legislature specifically to address issues with trespass on private land for a host of recreational activities including hunting, fishing and trail use. The law is designed to provide notice to those engaged in recreational activities that they are bound by law to respect the rights of private property owners and that there are significant consequences for those who do not abide by the law.

324.73102 Entering or remaining on property of another; consent; exceptions.

Sec. 73102.

(1) Except as provided in subsection (4), a person shall not enter or remain upon the property of another person, other than farm property or a wooded area connected to farm property, to engage in any recreational activity or trapping on that property without the consent of the owner or his or her lessee or agent, if either of the following circumstances exists:

(a) The property is fenced or enclosed and is maintained in such a manner as to exclude intruders.

(b) The property is posted in a conspicuous manner against entry. The minimum letter height on the posting signs shall be 1 inch. Each posting sign shall be not less than 50 square inches, and the signs shall be spaced to enable a person to observe not less than 1 sign at any point of entry upon the property.

It is interesting to note that the law provides for specific prohibition against recreational trespass on agricultural lands to highlight the frequent proximity of farm land near trail corridors.

Sec. 73102.

(2) Except as provided in subsection (4), a person shall not enter or remain upon farm property or a wooded area connected to farm property for any recreational activity or trapping without the consent of the owner or his or her lessee or agent, whether or not the farm property or wooded area connected to farm property is fenced, enclosed, or posted.

The law provides for a range of penalties for violations including both dollar fines and jail time and these penalties are increased for second and subsequent violations. In addition, the property owner may bring a cause of action for actual property damages.  The law authorizes the county prosecutor to pursue charges and allows for other local units of government to pass similar laws to increase the potential for enforcement.

324.73108 Enforcement and prosecution

Sec. 73108.

The prosecuting attorney for a county shall enforce this part and prosecute all persons charged with violating this part in that county. The attorney representing a municipality may enforce this part in that municipality and prosecute all persons charged with violating this part in that municipality.

324.73109 Violation of part; cause of action by property owner.

Sec. 73109.

The owner of property on which a violation of this part is committed, or his or her lessee, may bring a cause of action against an individual who violates this part for $750.00 or actual property damages, whichever is greater, and actual and reasonable attorney fees.

Sec. 73110. Penalties

(1) Except as provided in subsection (2) or (3), an individual who violates this part is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not less than $100.00 or more than $500.00, or both.

(2) An individual who kills any protected animal, game, or fish while violating this part is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not less than $250.00 or more than $750.00, or both.

(3) An individual convicted of a second or subsequent violation of this part occurring within 3 years of a previous violation of this part shall be punished by imprisonment for not more than 90 days or a fine of not less than $250.00 or more than $1,000.00, or both. In addition, the court shall order the individual’s license revoked if the individual is licensed to hunt, fish, or trap in this state, and shall order the individual not to seek or possess a license for the remainder of the calendar year in which the individual is convicted and during at least 1 succeeding calendar year. This subsection does not apply after September 30, 2001.

(4) This subsection applies beginning October 1, 2001. An individual convicted of a second or subsequent violation of this part occurring within 3 years of a previous violation of this part shall be punished by imprisonment for not more than 90 days or a fine of not less than $500.00 or more than $1,500.00, or both. In addition, the court may order the individual’s license revoked if the individual is licensed to hunt, fish, or trap in this state, and may order the individual not to seek or possess a license for not more than 3 succeeding calendar years.

(5) The court may order an individual convicted of violating this part to pay the costs of prosecution.

324.73111 Adoption of part as ordinance; effect of contradicting or conflicting ordinance, regulation, or resolution

Sec. 73111.

(1) A local unit of government may adopt this part as an ordinance, except that a penalty imposed for a violation of that ordinance shall not exceed the penalty authorized by law for the violation of an ordinance enacted by that local unit of government.

(2) A local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that contradicts or conflicts in any manner with this part.

The Recreational Trespass Act also provides important liability protections for farmers and other land owners by protecting them from injuries that were the result of a person being on the land of another if compensation has not been paid by the person on the land.  Liability for injuries caused to trespassers of course is already protected under common law theory of trespass law.

Sec. 73107.

(1) Except as provided in subsection (2), a cause of action shall not arise against the owner, tenant, or lessee of property for an injury to a person who is on that property with oral or written consent but who has not paid the owner, tenant, or lessee of that property valuable consideration for the recreational or trapping use of the property, unless the injury was caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.

(2) A cause of action shall not arise against the owner, tenant, or lessee of property for an injury to a person who is on that property with oral or written consent and has paid the owner, tenant, or lessee valuable consideration for fishing, trapping, or hunting on that property, unless that person’s injuries were caused by a condition that involved an unreasonable risk of harm and all the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe or to warn the person of the condition or risk.

(c) The person injured did not know or did not have reason to know of the condition or risk.

In addition to these significant liability protections under NREPA, the Michigan legislature has passed the Right to Farm Act that specifically protects farmers who abide by generally accepted farming practices from liability for nuisance actions, so that if a farmer is abiding by proper standards in his or her operations, any injuries caused would not be actionable under common law.

286.473 Farm or farm operation as public or private nuisance; review and revision of practices; finding; conditions.

Sec. 3.

(1) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture. Generally accepted agricultural and management practices shall be reviewed annually by the Michigan commission of agriculture and revised as considered necessary.

Farmers also have specific protection under the Michigan Trailways Act that will allow for the trail to be closed during pesticide spraying operations to allow for these kind of farming practices to occur without impacting trail users. This was an original provision in the Michigan Trailways Act and was passed specifically to address concerns of the farming community that spraying operations might at some point require temporary closure of a trail. The law is permissive and contemplated an agreement between a farmer wishing to spray and a trail manager working cooperatively to address mutual concerns for trail users.

324.72107 Closure during pesticide application.

Sec. 72107.

In agricultural areas, a trail may be temporarily closed by the entity operating the trail to allow pesticide application on lands adjoining the trail. The entity operating the trail shall post the closure of the trail or arrange with a landowner or other person for the posting of signs and the closure of the trail during pesticide application and appropriate reentry periods.

Trail owners and operators also enjoy specific statutory protection from exposure to liability for injuries that occur while a person is using a trail unless valuable consideration has been paid to use that trail. Valuable consideration paid in the form of a trail fee or license to use changes the standard of care for a trail manager or owner and thus negates the statutory protection provided under the Recreational Use Act. In addition, an owner of land that is used for purposes of accessing a trail also enjoys liability protection under the law.

324.73301.amended Liability of landowner, tenant, or lessee for injuries to persons on property for purpose of outdoor recreation or trail use, using Michigan trailway or other public trail, gleaning agricultural or farm products, fishing or hunting, or picking and purchasing agricultural or farm products at farm or “u-pick” operation; definition.

Sec. 73301.

(1) Except as otherwise provided in this section, a cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.

(2) A cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of entering or exiting from or using a Michigan trailway as designated under part 721 or other public trail, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. For purposes of this subsection, a Michigan trailway or public trail may be located on land of any size including, but not limited to, urban, suburban, subdivided, and rural land.

To facilitate and provide similar liability protection, the legislature has also passed specific protections for non-profit organizations that are engaged in trail building and maintenance and operation activities. This section of law was contained within amendments provided in SB 118 (now Public Act 39 of 2017) and takes effect on August 21, 2017.

Sec. 73301.

(3) A cause of action does not arise, for injuries to a person, against a person, other than a for-profit legal entity, with whom the owner, tenant, or lessee of land contracts to construct, maintain, or operate a trail or other land improvement used by the injured person as described in subsections (1) and (2), unless the injuries were caused by the gross negligence or willful and wanton misconduct of the person, other than a for-profit legal entity, with whom the owner, tenant, or lessee contracts.

Finally, farming operations continue to be the focus of liability protection by the legislature under the Recreational Use statute by specifically protecting farmers from liability when a person is on farm property for gleaning or picking of farm products, commonly known as U-pick operations.

Sec. 73301.

(4) A cause of action does not arise against the owner, tenant, or lessee of land or premises for injuries to a person who is on that land or premises for the purpose of gleaning agricultural or farm products, unless that person’s injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.

(5) A cause of action does not arise against the owner, tenant, or lessee of a farm used in the production of agricultural goods as defined by section 35(1)(h) of the former single business tax act, 1975 PA 228, or by section 207(1)(d) of the Michigan business tax act, 2007 PA 36, MCL 208.1207, for injuries to a person who is on that farm and has paid the owner, tenant, or lessee valuable consideration for the purpose of fishing or hunting, unless that person’s injuries were caused by a condition that involved an unreasonable risk of harm and all of the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or to warn the person of the condition or risk.

(c) The person injured did not know or did not have reason to know of the condition or risk.

(6) A cause of action does not arise against the owner, tenant, or lessee of land or premises for injuries to a person, other than an employee or contractor of the owner, tenant, or lessee, who is on the land or premises for the purpose of picking and purchasing agricultural or farm products at a farm or “u-pick” operation, unless the person’s injuries were caused by a condition that involved an unreasonable risk of harm and all of the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or to warn the person of the condition or risk.

(c) The person injured did not know or did not have reason to know of the condition or risk.

(7) As used in this section, “agricultural or farm products” means the natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary, including, but not limited to, trees and firewood.

These statutory protections are conditioned by common law of torts and how an individual accesses the trails. If valuable compensation is paid by the user, then a higher standard of care is required by the trail owner.  In addition, if the owner or operator exhibits actions that constitute gross negligence or willful or wanton disregard for the safety of another, those protections are no longer available as defenses.

There are other important common law tort doctrines that will provide direction in the courts as these statutes are interpreted. It is important to keep these doctrines in mind when considering the protections provided in law. One such doctrine is the doctrine of attractive nuisance which requires that trail owners and operators consider how children may view and use their trails. Children (no age specifically defined in court cases).  A special duty of care is owed to children who may not be able to fully realize the potential risks of using trails.

As we all understand, laws are only as good as the education and enforcement efforts that should coincide with these laws and we must in large part rely upon landowners, trail managers and trail users to know the law and act accordingly. It should be the job of trail managers and adjacent property owners and trail users to communicate their concerns and be willing to work together to help create a culture of compliance and respect.

Links:
Michigan Recreational Trespass Act

Michigan Natural Resources and Environmental Protection Act