Vermont Legislature SmartTranscripts:

[Christopher Mattos (Committee Clerk)]: You're alive.

[Sen. Nader Hashim (Chair)]: Good morning. We're back in Senate Judiciary. Weird little thing here. We're not technically taking up S-two 61 at the path to cross over. However, there was a a request from the transportation committee that we review the language of the default liability and they would intend to, depending on how the committee process goes, attach the language, I believe, the miscellaneous transportation. In other words, this is us doing a drive by drive through, fly by a language that may get attached to another committee's bill. So we have Legis Council here to All right.

[Damien Leonard (Legislative Counsel)]: Thank you for the record. My name is Tanya Vyhovsky, Legislative Council. The bill in front of you is is relatively short, but it's part of a bigger legal scheme that you would find in World VSA chapter two zero three, which is limitations on landowner liability. And that chapter is Vermont's version of what was a model act put forward by the council of state governments to essentially address landowner liability when landowners make their land available for recreational use. So for example, allowing a trail across their lands, and they're not charging a fee for that use. So this is different than, for example, a ski resort that might charge for lift tickets or, you know, a mountain bike area that charges for a trail use pass, etcetera. This year is specifically for those trails that you might find around Vermont across people's lands through an agreement between the landowner and a trail organization. And what this would do is it would add to the definition of land for purposes of that statute, railroad property, railroad rights of way, and utility corridors which public access is permitted. So and this is based on changes that were made to similar statutes in Massachusetts and other states. The general idea being that this would open up railroad corridors that have not been rail banked. And rail banking is this process where we keep the railroad corridor, but it's essentially being banked for future use. And in the meantime, it can be converted to a recreational trail. So that would be your Little Oil Valley Rail Trail, your Beaver Beaver Trail. There are a couple of these trails in Vermont, the Causeway in Burlington, The rail trail that goes out of Burlington across Causeway is another one. This one would be actively owned by the railroad, but they're not currently using it, or it's wide enough that they can run a recreational trail alongside the rails prime in some cases, and they're willing to do so. And so this would insulate liability. And so the language in the statute that insulates from liability is probably the important thing for for you to be aware of. And that is section fifty seven ninety three, and it provides that an owner shall not be liable for property damage or personal injury sustained by a person who, without consideration, enters or goes on the owner's land for recreational use unless the damage or injury is the result of the willful or wanton misconduct of the owner. So in other words, the owner has intentionally left a hazard there or wantonly left a hazard there that causes the injury. And then it also extends to property damage or personal injury sustained by a person who without consideration and without actual permission, the owner proceeds to enter upon or use equipment, machinery, or personal property, or structures, or fixtures that are on that property. So in other words, let's imagine that you have a trail that crosses farmland, and someone leaves the trail and goes on to use the farm equipment and then injures themselves. The farm equipment was not negligently left in the way of the trail or something like that. Nader has departed from the permitted use area and is now without the farmer's invitation. Climbing on the farm machinery and falls and breaks their arms, the farmer is not liable for that. It's essentially what this is providing. So by extending this to railroads, this would insulate railroads if they open up their corridor or a utility. So this could also extend to a utility corridor with, like, power lines or something like that. It would insulate that from liability for injuries sustained by people using a trail along those corridors as well as people who proceed to climb upon things or or use other sort of equipment and machinery that's left on that property. That is not either or it is not there as a result of will for willful or wanton misconduct of the owner. And I I do have a court decision, and we then explains why the courts have held that to me.

[Sen. Nader Hashim (Chair)]: Can I just ask a clarifying question here that I think will make a world of difference in how I feel about this? So this only applies to land that and in this case, railroads that are not currently being used for railroad traffic. It could include so this could

[Damien Leonard (Legislative Counsel)]: if the railroad chooses to open up to the property, if they have a right of way that's large enough, so the the rights of way can differ in width. And so there are instances, and this would be up to the railroad here, is if they have enough space in their right of way to run the rails down and the rails are running along one side and then there's enough of a gap that they feel comfortable allowing a recreational trail to build parallel to the rails that could occur. So you can there are examples of that. And I don't know if it's covered under a statute like this in these other states, but I've seen examples of that places like Maine where there's bike and pedestrian path alongside rails, and they're separated by, like, a chain link fence to keep people from crossing off to the railroad right of way. But, yeah, the it may be worth hearing from the sponsors of the bill on particular things that they envisioned, but it would allow railroads to say, we have a 100 foot right of way. We're only using 30 feet of that. We're fine if you run a recreational trail and build the best to keep people from crossing into the railroad.

[Sen. Nader Hashim (Chair)]: Yeah. I I know I don't wanna speak for senator Harrison, but I know this was something that was brought up due to a I don't wanna say a situation,

[Damien Leonard (Legislative Counsel)]: but yeah. Well, due to

[Sen. Nader Hashim (Chair)]: a situation of Railroad where there's a railroad that's not being used and the town's trying to figure out how to use it as a recreational space. That's the general impetus for this. In that instance, you can

[Damien Leonard (Legislative Counsel)]: have a railroad that says, yeah, we're not using that corridor right now. It's fine if you build a path there, but, you know, this we're extending the right to use it pursuant to an agreement that says we can terminate it if we reopen the rails too. So there's that option as well.

[Unidentified Committee Member (Senator)]: Can you help me understand what the courts said, wanton, whatever that language was, because I have some specific questions, but maybe they'll be answered in that explanation about a court finding.

[Damien Leonard (Legislative Counsel)]: I see. Okay. So the courts have the the legal standard for wanton and willfulness and conduct, and this is from a superior court decision in case called an a v vessa in which an individual was on a farmer's property without permission, driving down Farm Road and had a cable extending across the road, and that was intended to keep trespassers out and suffered severe injuries. They said that the court here wrote that the legal standard for wanton and willful misconduct is conduct manifesting personal ill will or carried out under circumstances of insult or oppression or conduct manifesting a reckless wanton disregard of one's rights. And so it then went on to assess the case, saying that there was no evidence in the case that the landowners harbored any ill will towards trespassers on their property or otherwise intended to cable the act as a trap than to injure trespassers. So this in that case, they found that this wasn't that they found, you know, that the the landowners had marked the cable with stuff to make it more visible to people who were traveling down the roadway, etcetera, in an effort to actually prevent injury rather than an instance where, for example, they've hidden something to cause injury. So that that's sort of the standard there is that if you've if you have intentionally left the hazard there for folks who are using them, the recreational pad.

[Unidentified Committee Member (Senator)]: So it sounds like it would not cover gross negligence, negligence, recklessness.

[Damien Leonard (Legislative Counsel)]: So, yeah. The the Vermont's Vermont has two cases in Sterling. One is a superior court case, but one went up to the supreme court. Two cases in Sterling's law. I haven't had a chance to look at how other states have dealt with the issues of gross negligence, but and Vermont's cases don't deal with that. And in the one case that dealt with actually reached this law, it was the trial court case, and they found that, you know, there was no that they didn't owe a duty of care and that they weren't liable because they hadn't they hadn't engaged and kind of exhibited ill will or attempt to harm. The other ace, found that it wasn't under this statute because the courtroom in question was not open to members of the public. So the and that that is related to a homeowners association that maintains private beach. And, again, that cable extended across the road to the private beach. And a member of the Home Produce Association on their dirt bike struck the cable and, again, suffered serious injuries. But they found it that case because it was a private road, And this was a mess of the private inquiry, and the road was not open. Unlike the the recreational use statute didn't apply, and so that when armed, they got an advantage of the trial court because the limitation on liability wasn't in place at that at that point that they reconsidered liability. And I don't know how that case resolved. And so there's no there's no trial decision available unless law or they have been a decision or they have been settled after the Supreme Court ruled that the homeowners association wasn't insulated by the statute for liability. Yeah. So that we have very limited case law to to follow on this. I can look into what other states have held about, for example, gross negligence. There there are some other cases in Vermont, but I think they they may predate the adoption of the statute related to the duty of care owed to someone who's trespassing. And that's, you know, better there was one case in a cemetery where a child climbed a tree from inside the cemetery, fell off a cemetery fence, which is one of those old wrought iron, very sharp fences. And so there was a question there, but I I did not think of that case because it predated statute.

[Unidentified Committee Member (Senator)]: And I just this is so transportation is not my area of expertise.

[Damien Leonard (Legislative Counsel)]: This is this is in that gray area between transportation and judiciary.

[Unidentified Committee Member (Senator)]: But I'm wondering if you have any sense of who who are the people we're talking about, the the railroad companies, the utility companies. What is the scope of what

[Damien Leonard (Legislative Counsel)]: So the the scope here would be the you know, so Vermont has two types of railroad corridors, those that are owned by the state and then those that are owned by the small railroads that operate in the state. And so that would be the Vermont rail system is probably the largest of those, But these are short line railroads or short line railroads that belong to a larger company that operate short lines railroads. And those are distinguished from, like, the major railroads like CSX, and with the setback that we're probably all more familiar with, these folks bring the they bring the stuff from the mainline railroad out to you know, down a shorter line to places like to or from places like Berry, Brooklyn, Burlington, etcetera. So that's what we have in the state. Over those railroads, you have both passenger rail like Amtrak and these these smaller freight operations happening. The state owns some of the corridors, but it does not operate on railroads there. And then the state owns the all of the rail banks, rail trails, the Memorial Valley Trail, etcetera. Those are generally owned by the state, and they're subject to this federal rail banking law that allows the rails to be basically preserved for future use. So those rail trails would be replaced by rails again at some time in the future if the traffic increases. And that's part of federal scene to ensure that we don't don't lose that capacity, whether that's actually likely to happen or not. Okay. And you may

[Unidentified Committee Member (Senator)]: not know the answer to this because utilities are not a transportation thing, but they are in this bill. What are the utilities we're

[Damien Leonard (Legislative Counsel)]: talking about? Utilities that we

[Unidentified Committee Member (Senator)]: would corridors or whatever.

[Damien Leonard (Legislative Counsel)]: Talking about here, the most likely one I can think about would be your electric transmission utilities. I don't know if the, for example, Vermont Gas has any corridors or would actually want to open any of their corridors up for recreational travel with the electric utilities. They have instances, and again, I can't speak for them. And I don't know if any of the rights of way

[Unidentified Committee Member (Senator)]: in Vermont are conducive to it, you may have instances where under a high tension wire, you could have a trail that's open for recreational use. And if that wasn't properly cared for that long, someone using it, they might not be liable for that because it wasn't wanted it wasn't intended to do harm?

[Damien Leonard (Legislative Counsel)]: Yeah. So the question is is if yeah. Is there one misconduct? But the owner, it does also allow an owner to post signs warning of dangers and then eliminates, again, insulates from liability if he posted signs warning of dangers. For example, if there's a water passer within the right of way, you know, at no swimming sign, if there's a if there's an electrical cord or a, you know, a sensor sign that says heat off high voltage. So, yeah, these are these are liability protections, and it doesn't seem to so it just double check-in. Yeah. It doesn't seem to go address that issue of of negligence. The additional statute there provides that this doesn't supersede or replace any requirements around animal control, at least ATVs. It doesn't limit the ability of the owner of the land and enter into agreements that modify their rights so there could be some provision for maintenance, etcetera. Doesn't support claims for evidence of aid or adverse possession. It does not relieve persons making recreational use of the land from the obligations that the person may have to exercise due care for the person's own safety and the recreational use of the land. So a lot of it goes back to if you're using this land, you're, you using your own breast to have this exercise air when using that. But I I don't know if there's case law that in other states that is extended negligence lands in this case that there is an instance of negligence. It is important to to note that these limitations do not all of that chapter does apply to the municipal or state owned lands. So for example, Burlington Electric or the state of rail rights would not be covered by this change. Purely private companies opening up their rights of I do have some clarification. My understanding is that the Memorial Valley Road Trail and the Pacific Valley Road Trail, how and why state long. Those are the state of the law. Yeah. Talked about utility corridors. I'm not aware of any utilities. I I don't know people other than GMT or whatever else. I can't you use your corridor. It's my understanding that they have a right of way 50 people north and south of the pole to keep it clean. But if that utility happened to go through this is the question. Post property, utility come come give somebody you know, permission to. They're not the landlord. They're not the landlord. Yeah. No. That's my question. Yeah. So there yeah. If you have private property that's posted for an owned and trespassing and you have and this may be something you wanna add as you would wanna add as a clarification too is just to say that this does not extend to, you know, easements to run. Lines across, you know, individual's property. For example, in some of the towns here here where you have an easement through a farmer's field in Oak Ridge Hill through someone else's woodlands to get into the cluster of houses in the next village because it was easier to run the wire that short distance than to let it out along the roads. If you remember from the windstorm we had a few years back and the time to repair the Washington block lines because they ran across sort of the back lands because when they had build it out, that saved materials and costs at the time. So When when will this come into play? I mean, generally speaking, utilities don't own the properties that these easements go through. I think my understanding from other states is that this is related to the utility corridors that you see around, like high tension wires where it's broader, a wider corridor where they they own the land underneath. But this language was taken from other states, and it it could also just be dropped out. So it's just rail corridors if that's the the focus there. I guess it's not. To end my question, yeah, would it apply to the state of Vermont? Are there any of the utility corridors owned in the state of Vermont? The the state of Vermont expressly excluded from the coverage after this chapter, so it wouldn't apply to the to the state itself. But it could apply to if there's a private utility that owns almost its land. So the, yeah, the language in here, the railroad property, railroad rights of way, and then the utility corridor. I think that that term I think you've highlighted some ambiguity in that term. So if this did move forward and you decide to keep that language in there, you might wanna clarify what a utility corridor is and clarify whether it doesn't include, for example, the easement to a line drop or, you know, easement across private property. It it could just simply be written utility corridors. Oh. By utility. Yeah. I think we have to make that. Suggest that first. Yeah. And, I mean, this is I think your committee has the bill, but the discussion is adding this language to the t bill as an amendment to that. So, you know, if the transportation committee thinks that it wants to move forward with considering this, I just wanna recommend that they make those changes. So language. Personally, I'm not sure. Yeah.

[Sen. Nader Hashim (Chair)]: I mean, my initial thought is just the utility board was and to just have a

[Damien Leonard (Legislative Counsel)]: deep railroad property, railroad points and blades and you know?

[Unidentified Committee Member (Senator)]: I'm a little concerned about how broad the liability coverage is. I mean, railroad property and even as I look at it, would be more dangerous inherently than a vent. Than a what? Than a vent, which is one of the things on the list that gets this liability. I'm kind of concerned with the whole concept, particularly the broadness of it, given the potential hazards or lack of maintenance and negligence not being covered. Really had an uncertainty.

[Sen. Nader Hashim (Chair)]: I think I I had the same thought, but I'm I guess the question for Damian is, generally speaking, public isn't permitted on railroad property.

[Damien Leonard (Legislative Counsel)]: So yeah. So right now, if you enter on railroad property, you're trespassing. So it would only then apply to, like you described earlier on, places where there's rail right next. They would have to choose to open up a portion of their right right of way or their property to public use. Yeah. Public recreational use. So that that's hurdle number one. And only after that would they have this liability insulation.

[Unidentified Committee Member (Senator)]: But they don't have any obligation that they can be reckless and negligent or grossly negligent to ensure that that property is now safe for the public. And that

[Damien Leonard (Legislative Counsel)]: in in looking at this and just the statute, I do not see language in here that would address, for example, negligence and maintenance of the structures on the property to the extent that those are the responsibility of the railroad. There is language that allows them to enter into further agreements, for example, with the trail organization, which could include that the trail organization maintains the structures and other parts on the property, but it does seem to provide liability protection for the landowner. My understanding of the history of these laws around the country is that they were intended to get more private property owners to open up their lands. And then this bill, as I understand it, came out of a move in recent years and surround certain surrounding states to extend us whatever property. And so this mirrors some of that change. What I don't know off the top of my head is whether those towns either have clear provisions on negligence related to landowner negligence or case law addressing negligence on the part of the landowner, gross negligence, and where that line is from. And we don't have enough case law in our state. It's never that question has ever come up. So all we're saying is railroad properties are already off limits. This is on the statement of this bill is if the railroad wants to open up portions of the rail or recreation is because someone has approached them, they're going to maintain it or whatever else. They're being a nice neighbor here saying, Yeah, go ahead. You need to maintain it. But only a liability on it. So I can see where they should be held liable in the case where they don't have to do this, but someone approached them and said, Yeah, But you're you're walking trail and here, whatever else, what you're gonna do. Yeah. And the so the question of of negligence may come down to is the railroad still actively using that corridor? And if so, are they because the way it's worded, it doesn't prevent that. There may be other provisions and other statutes and requirements that under federal law, for example, that could prevent that use and prevent them from opening up. Certainly, if there's a safety issue for the operation of the trains, I can't imagine that a railroad would be willing to do that. But if you're talking about an unused session of traffic that they may be willing to open up for recreational use, then they may just agree that any negligence plans would be an issue of the trail organization that's not maintaining a trail on it. Can you remind me what claims are prohibited under 5793? So 5,793 provides that the owner shall not be liable for property damage or personal injury sustained by a person who is without payment has entered or gone on to that owner's land for recreational use unless the damage or injury is the result of willful and wanton misconduct of the owner. And so that's the general provision here. It's currently under that statute. Your land that's covered by this is open and undeveloped land, including paths and trails, water, including springs, streams, rivers, ponds, lakes, and other watercourses, fences, or structures and fixture fixtures used to enter or build upon the land, including bridges and walkways. So that's what's currently covered. It does not include areas developed for commercial recreational uses, equipment, machinery, or personal property, and structures and fixtures not described in the fixtures that are included, like bridges and walkways. However, it does then provide in the liability protection that unless the damage or injury is the result of will for wanton misconduct of the owner, an owner shall not be liable for property damage or personal injury sustained by a person who, without the actual permission of the owner, enters or goes upon the owner's land for recreational use and proceeds and or foreign goods, equipment, machinery, personal property, or structures and fixtures that are not described in the definition of land as bridges, longways. So just a follow-up to that, Senator Garza.

[Sen. Nader Hashim (Chair)]: So if land does not include equipment and machinery and somebody is walking along, you know, for some reason they go off the trail and they start walking on the railroad itself, they get hit by a crane, I'm seeing machinery and equipment in that scenario. So would that liability protection no longer exist because it involves equipment and machinery?

[Damien Leonard (Legislative Counsel)]: So if they're entering on a railroad without the permission of the owner of the railroad, the owner is still protected from liability.

[Sen. Nader Hashim (Chair)]: So one more scenario and then we'll start. Yeah. Alright, so let's say person stays on the trail, they're minding their own business, not doing anything. Train comes along, it wasn't maintained properly, the engineer was negligent, a piece of equipment comes off the train that shouldn't have come off the train, hits the person, disables them, they get a physical injury, they've been affected by equipment or machinery from the frame due to negligence, Would and so would they then potentially have a claim?

[Damien Leonard (Legislative Counsel)]: I think at that point that there is potentially a claim. I I think there's still a a fairly strong argument that there's liability protection for the the railroad operator, but I think at that point, you could argue that the negligent operation of sorry, railroad equipment that then caused it caused the equipment or cargo to enter the recreational trail and harm the individual could result in a negligence claim for personal injury. But I I think it's still the way this is worded, it is a pretty broad protection, and I think there's a certainly, I think the railroads have a colorable argument that they are still insulative. And that maybe your question here is, does it, you know, and again, this gets into the policy question here. Should it be all railroad property? Should it be just property that's not actively being used for rail operations? And are there differences, for example, between building a bridge that passes over an active railroad operation versus running a recreational trail alongside, but not, you know, not dangerously near an active railroad operation. Again, I can't I conceivably, but I can't imagine a railroad being okay with having folks walking directly next to the training system. I have to imagine that this is an area where there's enough separation or some sort of barrier in order to ensure that there's safety there. Sorry, Doug. Yeah. Three quick ones. One is did anybody take testimony from No. This is the first testimony. So, I mean, certainly before, you know, this moves forward, you you may want to hear from railroads as to whether this is, you know, something they would be open to. And secondly, you know, come on here, a routine railroad truck, how far the easement is, the railroad all the most likely will help. So they would have a much better sense of what the range is, whether this even makes sense in Vermont, and whether this would be something that they would even consider on active active properties versus properties that they own that are not active in active use. And and my final question is on line seven, I mean, I don't even know why the real world would even enter it. Aimed is because it simply says that this bill proposed to limit the liability, not eliminate, but simply limits the liability. They already have full protection under the laws that as it exists today. So I don't what's so exciting about this? I mean, they have to come in and say, yeah. Why do go there, Wayne? Right. And so the as I understand beef recreational use liability limitations, they were meant to entice private landowners to allow people to come on their property when private landowners could already claim, you know, previously, if you dispose your property, you you already have some limitations on liability and some claims, and there are always attractive claims and misconduct and so forth. But the Or this The idea was to allow them to open their lands or a portion of their land up to public use by providing liability protection. So there isn't that concern of, well, if I allow you to run your trail across this property the next time someone crashes their bike on the trail, I'm gonna get sued. So, but again, this is the first time this has been testified on. And it, you know, certainly not every state that has this sort of language, and I don't know what the arguments have been like in other states in the discussions. And then, you know, this hasn't hasn't gotten testimony from the railroads or the advocates, etcetera, on either side of this issue. And not the utilities either. So Okay. Okay. Yeah.

[Unidentified Committee Member (Senator)]: There's a lot more than this. So there's one line cell?

[Damien Leonard (Legislative Counsel)]: Yeah. Yeah. It kinda did pretty well.

[Sen. Nader Hashim (Chair)]: Yeah. Yeah. That's that's yeah. To do that. So alright.

[Damien Leonard (Legislative Counsel)]: Where to go from here?

[Sen. Nader Hashim (Chair)]: Thanks. Well, we have to hear from other witnesses and we'll hear from the sponsor of bill next, but we'll

[Damien Leonard (Legislative Counsel)]: figure it out and see whether folks have to have

[Sen. Nader Hashim (Chair)]: I mean, I'm open to adding the line, something along the lines of not actively used for rail operations. Senator Bumsky made a point earlier that a railroad, it's it'll carry the same current level of risk as a fence or, you know, open and undeveloped land. So I could get behind adding a line not actively used for rail operations.

[Damien Leonard (Legislative Counsel)]: But yeah, we'll move to the table.

[Sen. Nader Hashim (Chair)]: Thank you.