Mount Lindsey Closure

[RobLowe]

17 years ago this spring, I took a leader fall in Clear Creek Canyon and dislocated my ankle and fractured the talus bone (ankle) which required surgery and a couple of screws to fix. The rock we were on that day was open to the public at the time, but had previously been closed and was later closed again. I am not sure of the current status. I can't recall who my insurance carrier was at the time, but when filing the claim they wanted to know where the accident took place. Aside from saying it was on private property in Clear Creek Canyon that was open to the public with estiblished climbing routes, I refused to tell them and told them the accident was entirely my fault as I didn't want the insurance company to contact the landowner. I didn't know who the landowner was although I am sure they could have easily found out. I don't know if the the insurance company would have gone after the landowner to recover my medical costs or not. I guessing landowners could face actions from insurance companies even if the injured party didn't file a civil suit?

Probably not in that case. Wouldn't have been worth their time, given that the injury took place during a "sporting event", if you will. Assumption of risk and all that, unless a defect on the property caused it (broken bolts, anchors, fixed gear, etc). But I handle premises liability claims for a large commercial insurer and you'd be shocked at some of the s**t for which people file claims against the property owner. And what's worse is that depending on the venue, we are often forced to settle some of these cases due to how plaintiff-friendly the courts are. The fact is that until the courts set a precedence to deny questionable claims, landowners are always going to have a major risk because people will file anything and everything.

Agreed. As a recovering lawyer, settling a claim is all about the cost/benefit analysis, i.e. cost of legal fees to defend, almost never about the merits of the claim.

-Tom

I would add that it greatly depends how risk-willing or risk-averse are the parties. If a plaintiff is willing to roll the dice on a 99% loser, there’s nothing the defense can do to force a settlement. Conversely, if an insurer recently got hit by a big verdict in another case they need to minimize risk in their overall portfolio by settling and gaining certainty (or if a client recently got hit with a large verdict, same premise because they don’t want to lose their insurer as a result of multiple high dollar outcomes), and therefore push their defense attorneys to settle for above true value despite strong legal and factual defenses.

Further, if the plaintiff is risk-averse, settlement will likely be below or near the value of the claim depending on how willing the defense lawyer’s client and insurer are to incur the necessary transaction costs (attorney fees) to obtain said outcome. Finally, if the client and insurer are bullish, there may be no way that plaintiff can induce settlement.

Those are the four most common permutations, sometimes both sides see the value the same and settlement is prompt (this is rare).

Settlement agreements always include the caveat that the fact of settlement is not an admission of liability and does not mean that the settling defendant or defendants were at fault for the transaction, occurrence, or injury.

Tom, while I personally agree with you that the closures are an overreaction, I professionally must disagree. By closing the land, the landowner makes the potential plaintiff a trespasser who can only recover if the landowner deliberately or willfully caused the plaintiffs injury. See CRS 13-21-115(4)(a); CJI 12:1. Without such a closure, the potential plaintiff becomes a licensee, who can only recover if he or she proves that the landowner had actual knowledge of the danger. See CRS 13-21-115(4)(b); CJI 12:2. The reality is that it is far easier to prove that a landowner of mountainous terrain actually knows it is dangerous. By closing the land, the landowner is far more likely to succeed on the merits because it is far more difficult for a trespasser-plaintiff to show that the landowner deliberately or willfully harmed the plaintiff.

[amderr22]

I was one of the many people who testified yesterday at the Senate Judiciary Committee Hearing. It's important to remember that the Trial Lawyers Association is one of the most influential lobbying groups in the state. Last year, they gave Senator Roberts, the critical swing vote on this committee, a $2,500 donation during his most recent campaign - in addition to $145,000 to other Senators and Representatives. And that doesn't include dark money we can't track.

Given their dependence on CTLA funds, it wasn't a massive shock that the Senators sought an excuse to vote no to keep their donors happy.

At times, Senators even misrepresented our testimony. For example, I testified that only 3 of the top 10 outdoor recreation states use Colorado's statute's language - I specifically said Colorado IS an outlier when you consider states similar to us. Yet later in the hearing, one of the senators quoted me as saying that Colorado ISN'T an outlier. Unfortunately, there's no rule to let witnesses correct a Senator mid-hearing.

The Senators ultimately judged the statute using a legal standard instead of an access standard.

They said the fact that landowners have lost one lawsuit proves the law is working. But the law's stated purpose is not protecting landowners from lawsuits - that's merely a means to an end. The law aims to incentivize landowners to allow public access to outdoor recreation. Thus, the standard we should use to judge if it is working is whether or not it is successfully convincing landowners they are safe to encourage them to allow access.

We provided clear evidence that this is not happening - they heard from nearly a dozen witnesses, including attorneys, explaining why they think the law no longer protects them and how it is discouraging access to private land - on Mount Lindsey, Mount Bross, the Ring the Peak Trail, and other examples. Instead, the Senators focused only on the number of cases - and not the impact - likely because it gave them an easy excuse for voting no. One well-publicized lawsuit is enough to create a chilling effect that discourages public access. Whether it is one lawsuit or ten is irrelevant - what matters is whether owners feel protected enough to allow access - or not. Right now, many do not.

The core issue: This issue is not currently electorally relevant to the Senators. They would rather anger a handful of voters and non-profits than anger a major, influential donor.

How do we address that? We raise the scope of the issue and make it electorally relevant by hammering them with so many letters, emails, phone calls, public testimony, meetings, letters to the editor, and other means that they realize they could lose votes and that a no-vote is a risk to their electoral prospects.

The CMC and its partners are assessing their next steps - the bill will almost certainly be reintroduced next year. There's a fear that the bill's demise will lead to more trail closures, since this appears to be a rejection of landowner concerns by the state - which will not provide any reassurance to those on the fence (literally). That will likely make it more high-profile the next time this comes before the Committee, and that could also help change things.

If you want to help us pave the way forward, you can start by emailing the three Senators on the committee who voted no and let them know you disagree, you are watching, and you hope they support these changes if and when they are re-introduced next year. Their names and contact info is below:

Senator Roberts: dylan.roberts.senate@coleg.gov
Senator Gonzalez: julie.gonzales.senate@coleg.gov
Senator Rodriguez: robert.rodriguez.senate@coleg.gov

[timisimaginary]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

[amderr22]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

The owners have considered using liability waivers - but who would print them out and ensure everyone has one? Who enforces the rule and forcibly removes or blocks people who don't want to sign one? Any liability waiver program for a 14er or similarly busy trail would require staff to check that visitors have waivers 24/7 - which would cost thousands of dollars each year. If the owner charged an entrance fee to pay for that, they lose recreational use statute protection. So they decided it wasn't a realistic solution.

For small-scale situations where only a few hikers or climbers visit an area, a waiver works, but not on peaks with tens of thousands of annual visitors.

[Ptglhs]

If you want to help us pave the way forward, you can start by emailing the three Senators on the committee who voted no and let them know you disagree, you are watching, and you hope they support these changes if and when they are re-introduced next year.

Or we could just hike wherever we want and use violence if someone tries to apprehend us. It's pretty clear that those in power don't give a damn about anything other than their re-election campaigns. Since they don't care what we think I don't know that we should care what they think.

[Ptglhs]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

I was there in December of 2020. I recall reading about a liability waiver but apparently that had become a non-issue by the time I went there, also it was December so that I don't think they were expecting anyone to be walking along the ridge of Black Mountain that separates Kentucky from virginia.

It's not like a liability waivers mean one cannot get sued. In theory they make it harder for a plaintiff to prove their case but anyone can sue for anything. Even if it's dismissed it's still an expense and a hassle to whoever the defendant is.

[RobLowe]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

This is called an exculpatory agreement. They aren’t guaranteed to be enforceable and are not an absolute bar from being sued. They do make summary judgment more likely, however.

But it’s not practicable for a landowner to sit at their boundary line every day and have visitors sign waivers. This has been one of the problems with Cielo Vista, which is why they charge so much money to cover the opportunity cost of doing other landowner things with their employees that otherwise are at the gate collecting a fee.

[JROSKA]

There's a fear that the bill's demise will lead to more trail closures, since this appears to be a rejection of landowner concerns by the state -

Other than Lindsey, Bross, Culebra, does anyone know which other 14ers (or prominent 13ers) are most likely to be problematic in terms of trails passing through private property? All I can think of is Crestone (parts of the road to Colony Lakes TH are on private land) and Wilson Peak from ROA (not 100% sure on that).

[dwoodward13]

At times, Senators even misrepresented our testimony. For example, I testified that only 3 of the top 10 outdoor recreation states use Colorado's statute's language - I specifically said Colorado IS an outlier when you consider states similar to us. Yet later in the hearing, one of the senators quoted me as saying that Colorado ISN'T an outlier. Unfortunately, there's no rule to let witnesses correct a Senator mid-hearing.

Ya this was Sen. Roberts in his final closing statement before the vote. I was pretty shocked that he said that, either he wasn't listening or just didn't care. He also kept honing in asking some of the witnesses on if they thought Nelson was rightly or wrongly decided. In my view, he seemed to think that the only successful case in 26 years (Nelson) was in fact wrong decided, and that the CRUS is good as is minus a fluke (bad) case.

I do wonder if this will lead to more landowners erring on the side of caution and either closing their land, or if they were considering allowing public access, to no longer do so. John Rieger being one of them who also testified (owner of parts of the Democrat group) who has described the current status quo with the added CMC signage somewhat of an experiment and tenuous.


Thanks for being part of the process Alex!

[dwoodward13]

There's a fear that the bill's demise will lead to more trail closures, since this appears to be a rejection of landowner concerns by the state -

Other than Lindsey, Bross, Culebra, does anyone know which other 14ers (or prominent 13ers) are most likely to be problematic in terms of trails passing through private property? All I can think of is Crestone (parts of the road to Colony Lakes TH are on private land) and Wilson Peak from ROA (not 100% sure on that).

The whole Democrat group not just Bross. Lindsey, Culebra, Sherman, possibly Shavano (CFI owns the summit now (or has it transferred to the USFS?), but in theory could still be at risk), Wilson off the top of my head.

[434stonemill]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

This is called an exculpatory agreement. They aren’t guaranteed to be enforceable and are not an absolute bar from being sued. They do make summary judgment more likely, however.

But it’s not practicable for a landowner to sit at their boundary line every day and have visitors sign waivers. This has been one of the problems with Cielo Vista, which is why they charge so much money to cover the opportunity cost of doing other landowner things with their employees that otherwise are at the gate collecting a fee.

I always assumed the reason for the payment required to gain access to the trail along Pine Creek was both to ensure that it was clear that this was private property and the owners wouldn't lose a portion of their property to adverse possession. But also that it would potentially remove any liability claims against them. Maybe this wouldn't have any impact on liability, but wonder if owners of Mt Lindsey could do the same. One issue is there likely are far fewer people traveling through the Pine Creek Ranch then are climbing Mt. Lindsey.

IMG_20190823_163604412_HDR.jpg (323.65 KiB) Viewed 9101 times

[RobLowe]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

This is called an exculpatory agreement. They aren’t guaranteed to be enforceable and are not an absolute bar from being sued. They do make summary judgment more likely, however.

But it’s not practicable for a landowner to sit at their boundary line every day and have visitors sign waivers. This has been one of the problems with Cielo Vista, which is why they charge so much money to cover the opportunity cost of doing other landowner things with their employees that otherwise are at the gate collecting a fee.

I always assumed the reason for the payment required to gain access to the trail along Pine Creek was both to ensure that it was clear that this was private property and the owners wouldn't lose a portion of their property to adverse possession. But also that it would potentially remove any liability claims against them. Maybe this wouldn't have any impact on liability, but wonder if owners of Mt Lindsey could do the same. One issue is there likely are far fewer people traveling through the Pine Creek Ranch then are climbing Mt. Lindsey.
IMG_20190823_163604412_HDR.jpg

I’ve been up Pine Creek several times. That board makes the entrant a licensee (and a good plaintiff’s lawyer would even argue an invitee, who only has to show that the landowner knew or should have known of the danger, CRS 13-21-115(4)(c), CJI 12:3). It would not operate as an effective exculpatory agreement under the factors in Jones v. Dressel, meaning the landowner still could be found liable.