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Could a small sign ease landowners’ anxiety about letting people recreate on their property?

Lawmakers will try again to change law to better protect private property owners
Hikers on the Decalibron loop pass through private property on the way to three 14er summits. A deal with a landowner has transferred 289 acres of private land on Mount Democrat to the Pike National Forest. (Courtesy of The Conservation Fund)

Lawmakers are making another run at amending the Colorado Recreational Use Statute, hoping to ease liability concerns that have hindered recreational access to private lands in recent years.

Since the 1970s the Colorado Recreational Use Statute has protected landowners who allow free recreational access on their land. But landowners are not protected if an injured visitor can prove a landowner’s “willful or malicious failure to guard against a known dangerous condition likely to cause harm.”

The 10th U.S. Circuit Court of Appeals in 2019 ruled that the Air Force Academy outside Colorado Springs knew about a damaged trail and failed to adequately warn users. The court affirmed a $7.3 million judgment for a cyclist who was seriously injured on the washed-out trail around the Air Force Academy campus. The years following that decision saw landowners closing trails on private property, requiring visitors to sign waivers and even donating their land, saying their attorneys were advising them to limit access and insurance companies were spiking premiums for policies.

The chilling effect on landowners who want to open their land for recreational access has prodded calls to amend the Colorado Recreational Use Statute. The Fix CRUS Coalition has grown to 46 outdoor industry businesses, trail groups and local governments calling on lawmakers to ease landowner liability concerns and protect free outdoor recreational access.

A bill introduced Thursday by Sen. Dylan Roberts of Frisco, Rep. Brianna Titone of Arvada and Rep. Shannon Bird from Westminster, all Democrats, and Republican Sen. Mark Baisley from Woodland Park asks landowners to post detailed signs — at least 8 inches by 10 inches — warning visitors of hazards on their properties. Senate Bill 58 would also ask landowners to take photographs of signs warning of dangerous conditions, structures and activities that could lead to injury or death, not just harm. If a landowner erects those signs, the bill would prevent them from being liable for a “willful or malicious failure to guard against a known dangerous condition.”

It’s the third time Colorado legislators have tried to amend the Colorado Recreational Use Statute. A 2019 bill would have removed the willful and malicious exception to landowner liability protections. It died in a committee days after it was introduced.

A bill debated at the Capitol last year also proposed adjustments to that “willful and malicious” exception. It also was rejected in a committee vote after testimony from several attorneys with the Colorado Trial Lawyers Association. Those lawyers argued that the recreational use statute was working well if only one landowner in more than four decades was found liable for “willful and malicious” disregard for visitor safety.

The Colorado Trial Lawyers Association has reviewed this year’s legislation and is not planning to testify in opposition.

“In our mind, it clearly states the protections that existed in the law already,” said Kari Jones Dulin, the president of the trial lawyers association.

Jones Dulin said the new language does not reduce protections for people recreating on private land. She said the legislation “gives landowners the words that make them feel better about opening up their land for recreational purposes.”

“Our utmost concern is the laws protecting people,” she said. “This carefully carves language that eases concerns and still provides the same protections for those who want to bike, bike and recreate across Colorado.”

The legislation aims to ensure not to limit a landowner’s ability to limit access when needed or restrict certain activities on their land. It also would update specific activities that may be taking place, including paddleboarding, kayaking, trail running and backcountry skiing.

Baisley sponsored the bill in 2023 that the trial lawyers successfully sunk.

He hopes this legislation “keeps the trial attorneys at bay,” he said.

If the trial attorneys who help injured parties sue property owners say they will not file lawsuits against landowners who post signs warning of dangers and possible death, maybe that will be the assurance property owners need to keep access open for recreation, Baisley said.

But this legislation would not address the “looming problem that there is a chink in the armor of the Colorado Recreational Use Statute that was leveraged by the trial attorneys with the successful lawsuit against the Air Force Academy,” Baisley said.

“This legislation is augmentation, but not a solution,” he said. “For 30 years the Colorado Recreational Use Statute was the agreement that worked, but once that veil got pierced, now every property owner wonders: ‘Have I been vulnerable this whole time? Is there a likelihood that my kindness of providing access for no benefit is going to be leveraged in a way that will destroy me financially?’ That remains our looming problem. We will have this agreement for now, but if the trial attorneys find some new opportunity and seize on it, Colorado will never be the same.”

The measure will get its first hearing in the Senate Judiciary Committee, though a date hasn’t yet been set.

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.