Posts tagged Liability

Reduce risk of liability for third party injury

Visitors to conserved properties should only leave footprints and take photos – but they might also injure themselves. Third party injuries stemming from real property are usually covered by homeowners or general liability insurance (Terrafirma doesn’t cover personal injury matters). Plaintiffs’ attorneys have tried to hold land trusts liable in personal injury lawsuits by virtue of the parcel’s conservation easement where the injury occurred. Some courts are not initially dismissing the land trust as a party from the litigation, often citing the easement’s monitoring and enforcement requirements as possible factual situations where the land trust could have liability. Whether this argument is ultimately successful or not, that doesn’t stop the land trust from having to defend themselves and incur legal costs.

Here are some best practices to keep in mind to help defend your land trust:

Have a general liability insurance policy;
Understand your state’s reactional activity liability, premise liability and assumption of risk laws and incorporate strategies into your land trust’s risk management plan to shield and reduce your liability exposures;
Have appropriate contractual and insurance coverage requirements when you have third parties involved with conserved parcels and any fixtures or improvements therein;
Include hold harmless and indemnification provisions as well as other appropriate contractual provisions in agreements;
Have clear and explicit provisions about the landowner’s and/or other co-holder’s maintenance, upkeep, monitoring and reporting rights and responsibilities in agreements, especially as to hazards.
Land Trust Alliance resources:

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Pointing the finger at land trusts

Plaintiffs and defendants continue to invoke creative arguments to hold land trusts liable and excuse violations to conserved land. Whether these arguments are ultimately successful or not, that doesn’t stop the land trust from having to defend themselves and incur costs.

Landowners and neighbors like to tactically point their finger back at the land trust’s board and/or staff when land trusts enforce conservation purposes. Here are some examples used to excuse or permit the conservation threat: the land trust was negligent in carrying out its responsibilities; the land trust failed to follow its own policies and procedures; or the land trust affirmatively or passively assented. These are becoming more common counter claims in litigation and may trigger coverage under your land trust’s directors and officers’ insurance policy.

While it’s difficult to prevent these allegations from being asserted in the first place, here are some best practices to keep in mind to help defend yourself:

Land trusts should have and follow their own record keeping procedures and practices.
Include anti-waiver/no estoppel provisions within agreements.
Have formal procedures for how they handle and respond to requests to modify conservation easements, in particular, specify who and by what means such approval must come from to be valid and effective.
Best Practices for Complete Stewardship Documentation.

We’re here to help! If you have any questions, please let us know.

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Posts tagged Liability

Reduce risk of liability for third party injury

Pointing the finger at land trusts

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