Since our last issue, The Post has found two people willing to talk to us for the record about trail liability: a trail neighbor and a City of Portland official.
Larry Sloan's house in Hillsdale sits next to a trail. It is an unusual situation in that in his case the land the trail sits on is not an "easement," part of his and his neighbor's private property through which the public has a right to travel according to conditions imposed at the time the property was subdivided. Rather, it is a right of way for the electric power and utility lines that run overhead.
Still, Sloan shares this in common with other trail neighbors: he is liable for injuries suffered by passers-by who use the trail. The right of way "was there before I bought the house," Sloan told The Post. "Somehow it morphed into a trail."
It was improved, with steps made from railroad ties secured by rebar, by volunteers of the Southwest Trails Committee headed by Don Baack; Sloan met Baack during the course of a Trails work party. "I couldn't say ‘no' to what they were doing, and I had no reason to anyway," Sloan said.
The steps have not been maintained since they were installed, he said; the rebar has worked itself up through the wood, creating some potential stubbed toes, (Sloan himself has periodically pounded them back down), and the steps show signs of splitting away.
Still, he did not perceive that he had a problem until informed of the liability issue. "This was never designed as a trail, it isn't a street or a sidewalk, it doesn't belong to me, I can't sell it or make improvements in it, yet I am responsible for liability and maintenance," Sloan complained.
Bureau of Transportation pedestrian coordinator April Bertelsen confirms this. Under City code, "Unimproved rights of way are the responsibility of the abutting property owners until they're improved to City standards," she told The Post.
This includes everything from totally unimproved easements to partially paved streets that lack sidewalks and curbs, she said. "Our position is that if you keep things in good order you're reducing your liability."
The code also says that if you build something in a right of way, whether it is a retaining wall or "things like stairs," you are required to secure a building permit for it first, Bertelsen said. Conceding that this hasn't always happened she said, "The events of the past year have increased the City's attention to this; we have more interest in inspection" of the trails.
Baack and the Trails Committee have called on the City to take on responsibility for trail liability. As we reported last month, the Southwest Neighborhoods, Inc. board of directors adopted this position at their June meeting and sent a letter to this effect to the City Council.
At press time in mid-July Bertelsen said she had just received the letter and could not specifically comment on it at this time; in any event, an official response would have to come from Mayor Sam Adams, who oversees the Portland Bureau of Transportation, she said.
However, the City has resisted taking on this responsibility in the past. Bertelsen noted that budget cuts have forced her bureau to reduce its routine maintenance of improved local streets.
"There was discussion during this year's budget process of whether we can even maintain what we already have responsibility for," Bertelsen said. She added, "I am sympathetic to the Southwest volunteers; I understand what an investment they've made in the trail network and what a freeze this can put on things."
The City's response so far has been to make trails exempt from liability. In the last legislative session, HB2003 made cities exempt for civil claims for injuries suffered by people tending community gardens. Portland lobbyists tried to amend the bill the make it apply to trails. The bill's sponsors, fearing this could endanger their chances of passage, refused to accept the amendment.
Bertelsen said that City officials feel a second try during a special session next year would be "the most elegant, robust solution." If successful, would it make trail neighbors happy? For some it would solve the problem; others simply don't want trails going by their property.
Sloan is somewhere in the middle. He noted that neighboring children regularly use the trail to catch the school bus, and that it is far more direct and safe than negotiating the street system.
"This is a lot different from having people handing out trail maps," said Sloan, and the "circus" he feared that would bring. Trail advocates say that since the trail system is a public resource, it makes sense to let the public know about it. However, his main concern is liability. "I'm not a bad guy," he said. "I just don't want process servers coming to my house."
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