Colorado has a proud history of public land access in spectacular wilderness settings that most states east of the Mississippi can only dream of. However, over the past two decades years, a problematic trend has grown from an annoyance to a real problem as first one, then two, and now five 14ers (14,000+ foot peaks) are now closed to public access: Mount Lindsey, Mount Democrat, Mount Cameron, Mount Lincoln, and Mount Bross.
Why are these five iconic peaks closed to the public, and what can be done to restore access in the future?
The Root Cause of the Closures: Landowner Liability Risk
The way that premises liability operates in Colorado and most other states open up landowners to significant risks if they allow the public on their land – even if they do not profit from it or charge access fees. Here’s a quick introduction to how liability law works, how it leaves landowners at risk – and why the solution, the Colorado recreational use statute – remains deeply flawed and broken.
Premises Liability Law 101: Trespassers, Licensees, and Invitees... Oh My!
Like most U.S. states, Colorado defines the obligations that a landowner owes to visitors to their property by classifying them as either a trespasser, licensee, or invitee. Each is owed an increasingly robust duty of care – and thus has more opportunities to file a lawsuit if injured on the landowner’s property.
For example, trespassers are defined as those on the property without the permission of the landowner. Landowners owe them the lowest duty of care – all they must do is avoid injuring them maliciously to avoid a lawsuit.
A licensee is someone who is on the property with the landowner’s consent but is not part of a mutually beneficial commercial transaction with them. In other words, if you ask to go hiking on someone’s property and they don’t profit from it – you are a licensee owed a moderate duty of care. Landowners are expected to warn licensees of hazards on their land they already know about. If someone asks to enter your land and then falls down a mine shaft you knew about but did not warn them about – they may have a legal case against you.
An invitee is someone on the property at the express invitation of the landowner, or who is there as part of a mutually beneficial commercial transaction. If someone comes to your home to buy a used couch, be careful: they are likely legally considered an invitee, which means you owe them the highest level duty of care. Not only must you warn them of known hazards: you must also inspect your property to discover any hazards and take care of them. Ignorance of danger is no defense when you are dealing with an invitee.
Under this definition, recreational visitors are considered licensees with opportunities for lawsuits
This is where the problem began. If you let someone hike or hunt on your land, you wouldn’t benefit in any way – but you would be expected to take the time to post warnings throughout your property or personally explain the hazards present to each visitor.
While this might not be a problem for someone who owns a small plot of land in town, it is a significant burden for ranch owners with hundreds of acres of land and thousands of potential hazards. Similarly, for those with mining claims on rugged alpine terrain, the cost of installing warning signs is high both in terms of supplies, labor, and time. Additionally, many in the hiking community do not want the high peaks marred by warning signs and vandalize them over time, requiring costly repairs.
Additionally, landowners legally owe licensees a ‘reasonable duty of care.’ This is defined as “degree of care that a reasonable person would use under the same circumstances.” While this definition is obviously a bit subjective, in practice, it comes down to common sense. If means that if a reasonable person would have repaired a dangerous condition or warned someone – the landowner should have as well. It opens the door to all kinds of claims and lawsuits based on negligence.
The Colorado Recreational Use Statute (CRUS) was designed to limit this landowner liability to encourage access for the public.
In the 1960s and 1970s outdoor recreation was rapidly growing in popularity across the United States. The number of lawsuits involving hikers, campers, and climbers on other land grew quickly and led to many landowners closing access to their property to avoid losing everything in a lawsuit. States recognized the importance of public access to private and public lands alike to meet growing demand for space, and essentially settled on a compromise to balance access needs with liability rights.
In exchange for allowing the public to recreate on their land for free, landowners would receive a broad liability shield that protects them in most – but not all – circumstances. While each state RUS is slightly different, most have exceptions for landowner behavior that is grossly negligent, willful and wanton, or malicious towards outdoor recreational users – essentially matching the same standard used for trespassers.
In Colorado, this balancing act worked for many years to keep landowners safe from lawsuits while keeping huge tracts of land, including eight privately owned 14ers, open and accessible to members of the public. All of that changed in the early 2000s.
In the early 2000s, a young attorney was hiking Mount Lincoln and made an observation that changed everything.
The hiker noticed someone working on one of the old mining claims located along the route and approached him. He told him he worked in liability law, and that the mining works, loose trail, and other hazards were all major lawsuits waiting to happen. He told the landowner he should talk to an attorney asap – and the chain of events was set into motion.
Talking with several attorneys, the landowner did learn that his mining claims, most of which had mining structures dating from long before he had purchased the land, were major liability risks. Most could be considered an attractive nuisance – something that is so clearly attractive to younger children, that owners have a legal responsibility to erect barriers or other protection beyond just a sign. The peaks closed shortly after as a way to limit his risk.
A coalition of groups led by the Colorado Mountain Club and Colorado Fourteeners Initiative stepped up to change state law and add an exception for mining structures dating back to the 19th century – but the owners did not feel that the language was suffiently strong to protect them. At the last minute, the Town of Alma, dependent visitors to the area, offered to lease the land for $1/month to provide protection through their sovereign immunity from lawsuits. This led to the peaks re-opening – but it did not address the lingering landowner concerns about the status of the CRUS.
In 2019, A Lawsuit in Colorado Springs Threw the Protections of the CRUS into Question Again
In 2019, a lawsuit reached the end of a long and winding trial that included successful appeals to the US Court of Appeals. A jury found the Colorado Air Force Academy liable to the tune of $7.5 million after a mountain biker hit a washed-out section of trail on a path they neither built nor maintained because they failed to warn him of it in advance. It was the first high-profile case in which the CRUS exception was used to reach a verdict against the landowner, and it had immediate ramifications across the state.
This deficiency in the law is a result of a small, one-sentence exception that essentially undermines half the protections provided by the bill. As we learned above in Premises Liability 101, without the CRUS a hiker or biker is considered a licensee and owed two things:
- Generally, a reasonable duty of care by the landowner
- Specifically, a requirement to warn visitors of known hazards on their land if a reasonable person would have done so.
Nearly all state recreational use statutes, including Colorado’s, starts by affirmatively stating that recreational users are not owed a duty of care because they are not a licensee or invitee. This essentially removes the first legal hurdle by saying a landowner does not have to take reasonable care.
Second, most state recreational use statutes specifically say that a landowner has no duty to warn of dangerous conditions. For example, the Alabama RUS includes both of these statements:
“an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use by any person for any recreational purpose, or to give warning of a dangerous condition , use, structure, or activity on such land to persons entering for such purposes.”
This suggests that the RUS is meant to essentially re-classify recreational users as trespassers – people who are owed no duty of care, and no duty to warn – but remain able to sue in cases of extremely negligent or malicious conduct.
The problem is, that’s not what the CRUS does.
The CRUS Exceptions Re-creates the Duty to Warn and Reintroduces Significant Landowner Liability Risks
While most recreational use statutes clearly state that owners must not give warning – Colorado’s is one of the few exceptions. It says that owners owe no duty of care, but says nothing about the duty to warn.
Buried in the next section of the statute comes the key exception. This section states:
“Nothing in this article limits in any way any liability which would otherwise exist for willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”
In other words: if a landowner knows about a hazard on their land – or one hundred – they are legally required to communicate all of those risks and hazards to each person who enters their land. This is essentially the exact issue that led to the development of the CRUS in the first place – the need to alleviate the cost put on landowners to fulfill their duty of care and duty to warn. While the CRUS eliminates the duty of reasonable care – it retains the duty to warn. As the recent case involving the Air Force Academy demonstrated, the CRUS is not airtight, and there is significant uncertainty as a result.
From a Legal Standpoint, Liaibility Protection is Unhelpful Unless it is Nearly Fullproof
The issue with the recent court case is ultimately one of uncertainty. Before the case, landowners had relative certainty they were protected, because few, if any, landowners had ever been successfully sued in a high-profile case. When that happened, all the certainty that had been there vanished.
On a more practical level, the case created new questions of law that can only be answered by a judge or jury in a court room. While it very well could be that these questions are overblown and landowners remain protected – there is no way to gain certainty until additional court cases reach a judge.
What kind of landowner would willingly wait and be a guinea pig to see whether or not they’ll be protected or not in a massive, multi-million dollar lawsuit? When significant certainty exists – especially backed up by actual defense attorneys – the easiest option becomes shutting down access. This is why even a single successful lawsuit against a landowner – and especially a large, high-profile lawsuit fought against a massive and powerful government institution – is more than enough to create a chilling effect that deters landowners from allowing the public access to their land.
While the CRUS Exemption Has Limits, No One Knows Where They Are
To put it simply, landowners now know that if they know about a hazard on their land, and they fail to warn or guard against it, they might be sued and lose. But they do not know a lot of important details that would help them comply:
- How quickly must they warn or guard against the dangerous conditions? Must they install a sign within a day – or a week – or a month?
- If the sign is vandalized or torn out (which happens a LOT), how quickly must the landowner fix it? How many times must they fix it before it is not their problem?
- After fixing a warning sign 5-10 times, are they still responsible for maintaining it? How much must they spend on materials and labor to be protected legally?
- There are many inherent risks on 14ers like lightning and loose terrain that the owners are aware of and many guests are not. Is the owner expected to warn them of these or not? The law is mum.
- Would a blanket sign that warns of hazards along the route count as a warning, or must landowners warn about each specifically known hazard?
The list of questions goes on and on – if you were the landowners, wouldn’t you consider putting up a sign and shutting down access rather than facing the risk that you cannot even quantify?
The Irony: The status quo leaves thousands of hikers classified as trespassers with no legal recourse
The irony of the situation is how various intentions and goals have created a situation on the ground that no one is content with.
The Trial Lawyers Association opposes changing the CRUS because they believe it strikes the right balance as it is right now. They argue that hikers and climbers have a right to be warned of known hazards before visiting land – even if they do not pay to access it. When that fails to happen, the think they should have the right to sue.
However, with these peaks closed, thousands continue to climb them illegally, classified as trespassers that have no right to any warnings about hazards, known or otherwise – and no right to sue unless landowners act maliciously towards them. In other words, the Trial Lawyers Association says it is fighting to keep people safe by incentivizing owners to warn them of hazards. But the law’s effects actually just led to them being re-classified as trespassers, leaving them at far greater risk and no warning of any kind.
Clearly, we can find a solution that better protects landowners while still preventing egregious examples of landowner conduct. It is important to note that nearly half of recreational use statutes lack a specific duty to warn. Among the top ten state dependent on outdoor recreation, 7 lack a duty to warn – only 3 have it.
A strong CRUS would re-open peaks but still prohibit malicious and negligent activity
Colorado should look to our neighbors and outdoor recreation peers as an example to emulate, and adopt new CRUS language that does not send a mixed message about the protection it provides to landowners. The outdoor recreation community is increasingly adopting an ethos of self-reliance and acceptance of risk. The expectation that visitors are owed warnings of all dangerous condition on a property, whether it is public or private, has changed from the 1970s when these laws were written. It is time for Colorado to update our recreational use statute and make the compromises necessary to restore access to these iconic peaks for our children and future generations to enjoy.
Click here to learn more or take action to support our work to strengthen the Colorado Recreational Use Statute.