Opinion: Insurance companies are trying to scare everyone off private trails

Most weekends, you can find me, my husband, and our two dogs hiking in the mountains. Like most Coloradans, I consider myself lucky to live in such a beautiful state with all the outdoor privileges that go along with being here. I even have several 14ers under my belt.

I also understand that there are real tensions over public access across private property to get to some of the most beautiful places in the world.

Colorado hikers this year found the popular trail The Decalibron Loop closed to a few of Colorado’s most popular high country 14,000-foot peaks. (The trail is now temporarily open, with liability conditions for hikers.) People are understandably angry and frustrated that they are deprived of access.

The thought of anyone losing this access because of misleading allegations doesn’t sit right with me. And a solution should be found, but many are looking to the wrong solution that could make hiking in the high country less safe for everyone. 

More than 25 years ago, Colorado’s General Assembly passed a grand bargain law that protected both landowners and hikers in a fine balance. The law says that landowners would have to be willingly and knowingly negligent to face an injury lawsuit. In non-lawyer terms, that means they would have to be aware of public safety dangers that could harm or kill someone and do nothing about them.

And for more than a quarter of a century, this commonsense law has worked. Hikers know there are built-in dangers to climbing mountains and landowners know there are built-in protections for them.

Then came one lawsuit that scared the insurance companies who have decided to scare the landowners that hold their policies:

A skilled cyclist was biking on an Air Force Academy trail in 2008 when he came around a turn and encountered a massive sinkhole, causing a near-fatal crash. His life has not been the same since. This was not a sprained ankle or cuts and bruises, but severe, life-changing injuries including a brain injury.

What made this incident different from others that happen regularly on trails across Colorado every year was that the Academy knew the threat was there. Photos had been taken, the danger documented, and nothing was done. No sign to warn users, no detour around the sinkhole. A judge decided that the Air Force Academy was responsible, and in 2019 an appeals court upheld that finding.

This is the only successful lawsuit since the law was passed. Insurance companies have panicked as a result, and in turn, insurers have panicked their policyholders. Insurance companies are not policymakers; they should be responsible to their policyholders and instead, they act as if they are responsible only to their profit margins.

Denying access to trails is a direct result of insurance company’s profit margins. There has been one successful lawsuit in more than a quarter century. You cannot sue if you break a leg or sprain an ankle or trip over a rock and fall on a Colorado trail, because of the existing law. There is no backlog of lawsuits over hiking issues threatening the recreational industry and landowners. 

There are proposed dangerous changes to the law that will upset the balance that was set so many years ago. The current law protects recreational users because it holds landowners responsible when they actually know of a dangerous condition likely to cause harm and purposefully fail to warn or guard against such danger despite that knowledge. The proposed changes would no longer hold landowners responsible to warn or guard against known dangerous conditions — thus exposing recreational users to harm.

The current law has stood the test of time. It keeps landowner rights prioritized and outdoor enthusiasts safer. This is a poorly masked attempt for the insurance industry to guarantee themselves profits at the expense of landowners, hikers, bikers, campers, and anyone else who may wish access to Colorado’s more rugged landscape.

Hikers (including me and my family) should be able to take on the usual risks of a climb up a 14’er, and responsible landowners should be protected to allow access within reason.

Kari Jones Dulin, of Denver, is an attorney and the incoming president for the Colorado Trial Lawyers Association.