This question is a very complicated one that I don’t hear very often. That’s mostly because easements, which are technically easements in gross, are very uncommon, especially in urban areas. Basically, when property owners grant easements, they allow someone else to use part of their property. Injury responsibility usually depends on the type of easement.
Private easements are the most common easements, though they’re pretty uncommon. If Jack wants to build a tool shed but doesn’t have the room, Jill could allow Jack to build the shed on her property. Jack and Jill work out all the usage and other details between themselves.
Access easements are a close second, especially in rural areas. Jack may need to build a road across Jill’s property so Jack could get to his swimmin’ hole. Once again, Jack and Jill decide all the terms of use.
Other major kinds of easements include utility easements and prescriptive (involuntary) easements. Utility companies can typically lay wires, hoses, etc. on private property. A prescriptive easement is like adverse possession. If Jill uses Jack’s swimmin’ hole without his permission, Jill has an easement on Jack’s land.
Some states also recognize implied easements and easements by necessity. I won’t even try to break those down.
Accidents on Utility Easements
Generally, utility companies are responsible for injuries that occur on utility easements. That’s basically because utility companies have such broad power to take private land without compensation, at least in most states.
As always, liability in any one situation depends on the facts. For example, most states use a victim classification system to determine the duty of care. If the victim was a trespasser (permission to be on the easement and economic or noneconomic benefit to the utility company), the easement holder had a duty of reasonable care. On the other hand, if the victim was a trespasser (no permission and no benefit), there’s usually no duty.
Accidents on Access, Private, and Prescriptive Easements
In most states, the original property owner is still responsible for safety on the easement. Legally, the owner still owns the property. Legally, the beneficiary (person who has the only has a nonpossessory interest in the easement. The aforementioned duty of care analysis usually still applies.
There are some big exceptions. The first one is non-owner damage. Assume that Jack was a very bad road builder and someone fell on the road. Jack is liable for damages, even though he’s the beneficiary instead of the property owner. That’s assuming Jill would have had a duty of care to the victim.
Additionally, as mentioned, the parties work out all the details in access and private easements. If this agreement includes injury liability, even a shift from the owner to the beneficiary, most courts will uphold that agreement.
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Written by
Bret Thurman
