Easement use may create liability

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The user of an easement across someone else's property could be found liable to a party injured on that easement, under certain circumstances. That's the conclusion of two local lawyers in reaction to a recent St. Louis lawsuit settlement.|ret||ret||tab|

The property owners who merely used a private road but didn't own it agreed to pay a $2.5 million negligence claim against them after a Fenton teen's car careened off the winding road causing severe injuries to the youth.|ret||ret||tab|

The lawsuit settlement, recently reported in the Missouri Lawyer's Weekly, is a stark reminder to property owners, developers and easement users that the law is a tricky business.|ret||ret||tab|

In the case, Andrew Beaver, 16, was paralyzed from the chest down after his car left the roadbed of Lochmoor Drive, a dangerous, curvy road, and plunged 20 feet into a creek. He sued the neighborhood association and the land developer for negligence, according to Ken Jones, publisher of the Missouri Lawyer's Weekly. The property owners merely used the road on the easement but had no ownership rights in the land.|ret||ret||tab|

"It was the only road that the neighbors used to get in and out of their property," Jones said. "The plaintiff claimed that since they have the rights to use the easement, they also have the duty to maintain the road and make it safe. (The defendants) said they didn't have a responsibility for the road, but the evidence was that they chipped in to fix the potholes." They also cut the grass on the shoulder. |ret||ret||tab|

And therein lies the problem, said Stuart King, an attorney with McDonald and Associates. "If you assume a duty and start to perform maintenance ... even if you didn't have ... an obligation to do so, once you've accepted and assumed that responsibility you can be held (liable) if you don't do so properly. That's where the hidden liability lies." |ret||ret||tab|

He likened it to a store owner who decides to clean off snow and ice on a city-owned sidewalk in front of his store. If a person falls on ice or snow which the store owner failed to clean off completely, then he could be found liable for the person's injuries. |ret||ret||tab|

Paul Sherman, of Daniel, Clampett, Powell and Cunning-ham LLC, agreed. The home-owners association members, although they didn't own the road, "were exercising control over it ... if they go to the trouble of maintenance and upkeep." |ret||ret||tab|

They were the "dominant estate," Sherman said, while the actual landowner in the St. Louis case, the developer was the "subservient estate. If I owned an easement across your property, I'm the dominant and you're subservient to me ... I get to use your property." |ret||ret||tab|

To protect itself, the neighborhood association could have had an indemnity agreement with the owner of the easement that, even if the association maintained the road, the actual owner was still liable for injuries, Sherman said.|ret||ret||tab|

In the Beavers vs. Paradise Valley Residents Association case, the developer also was sued, although he had had no contact with the project since 1978, Jones said. Unfortunately for the developer, he failed to extinguish his interest in the easement after he completed the project. |ret||ret||tab|

A smart developer will dedicate roads to the city, Sherman said. Or, in the case of a planned development, a developer would set up a neighborhood association and convey the land to it. |ret||ret||tab|

Common areas in such developments cause concern, he added. A child who falls off a swingset in a common area and is injured could sue all the property owners, but a neighborhood association could band together and purchase insurance. "Insurance is a good thing," Sherman said.|ret||ret||tab|

In the Beavers case, there had been seven previous accidents on Lochmoor Drive, and there were four more while the case was pending, Jones said. The association put up a guardrail after the suit was filed.|ret||ret||tab|

"If it wasn't for this lawsuit, the road would have continued to be a hazard," Jones said. "Lawyers are frequently maligned, but so many of the consumer safety measures that we all benefit from come about only because of legal action."|ret||ret||tab|

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