Jeffrey T. Angley, P.C.
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INDEMNIFICATION PROVISIONS IN RIGHT OF WAY AGREEMENTS

Easement agreements are used to address a wide array of issues and interests of landowners including resolving property disputes, clarifying property rights between neighbors or granting new rights of access. Common to all however, is the fact that one person's land will be used by another party or person or sometimes many parties and persons. Right of way agreements that allow others to pass and repass over the land of another often raise questions about the liability of the landowner for loss or injury occurring to the easement holder or third parties who might use the easement-whether with permission or without. What then are the essential duties involved in this relationship and what can be done to mitigate exposure to landowners? As we will see, the relationship between the landowner (the owner of the servient estate) and the easement holder (the owner of the dominant estate) and various third parties is governed by competing legal propositions.

Commonly, the duty of maintaining an easement in such condition and repair as may be necessary to its exercise normally rests upon the holder of the easement. See Shapiro v. Burton, 23 Mass. App. Ct. 327 (1987), citing New York Cent. R.R. v. Ayer, 242 Mass. 69, 75 (1922). As a consequence, the landowner does not have a duty to repair or maintain the easement area. But what if the owner of the servient estate chooses for his own purposes to modify the easement in some way, such as resurfacing or changing the grade? In that instance, the owner of the servient estate must, as to new and different constructions, himself maintain the way so as to be equally safe and suitable for passage as was the way when originally created. See New York Cent. R.R. v. Ayer, 242 Mass. at 75. Thus in the absence of a fixed obligation to repair or maintain as fixed by an express easement, the law implies the obligations and duties as between the easement holder and the land owner.

But what of the duty owed to third parties who find their way to a road or passageway? What duties are owed to such persons by the land owner for defects in the way or injuries incurred in the use of the way? As a general proposition, all landowners in the Commonwealth owe a duty of reasonable care (negligence standard) for the safety of all lawful entrants upon their property as well as certain foreseeable child trespassers and trespassers who are known to be in a position of peril. See Schofield v. Merrill, 386 Mass. 244, 245-46 (1988). The rule is different for an adult trespasser, who as an entrant without consent or invitation, is entitled to no greater duty of care than that the landowner refrain from wilful and reckless disregard for the entrant's safety. Id. This duty of reasonable care then seems to conflict with the obligation of the easement holder to maintain and repair the right of way.

In the absence of an express easement that provides for the allocation of responsibility for such third persons, parties will have to rely on finding which party, landowner or easement holder, is responsible for maintenance and repair and use that duty to set the obligation toward third persons. Yet in drafting express easements, the parties often seek to allocate the risks and responsibilities to third parties through insurance and indemnification provisions. Thus easement holders are often required to provide a minimum level of general liability insurance coverage and name the landowner as an additional insured. As additional protection for landowner, the easement holder is often required to indemnify and hold the landowner harmless from liability associated with the use of the easement.

Recently, we have been involved in a number of easement negotiations that have highlighted the varying levels of protection afforded by indemnification agreements and the efforts by each party to allocate risk. Most indemnification agreements start with similar language. The easement holder is required to

indemnify and hold harmless [Landowner] from and against all claims, demands, suits, costs, expenses, liabilities, fines, penalties, losses, damages and injury to person, property or otherwise, including, without limitation, direct, indirect and consequential damages, court costs and reasonable attorney's fees, arising from or in any respect related to any exercise of or use of the Easement by the [Easment Holder], and their guests and invitees [and others depending on the circumstances] except . . . .

Typically however, an easement holder will seek to limit the extent of their exposure by excepting from the indemnity provision the conduct or acts by the landowner. Two exceptions are frequently offered up, one which excepts both negligent and willful and intentional acts of the landowner and the other that excepts only willful and intentional acts. The typical provisions are as follows:

Excepting Negligent and Intentional Acts: except such injury, loss or damage as shall have been caused by the negligence or willful act of the indemnified party, its agents, guests, invitees, family members or employees.

Excepting Intentional Acts: except such injury, loss or damage as shall have been caused by the willful or intentional act of the indemnified party, its agents, guests, invitees, family members or employees.

Careful thought must be given to these two alternative exceptions and how they relate to the expected use of the property and, more importantly, what level of protection is truly afforded. When an easement holder offers up an indemnity provision but demands that the negligent and willful acts of the landowner be excepted, what real protection is provided? Since the landowner owed a duty of care to all lawful entrants to his property, the exception of negligence from an indemnity clause means that the easement holder is providing highly limited protection to the landowner, akin to indemnity for strict liability. Strict liability without regard to negligence or fault exists in this Commonwealth where unusual and extraordinary uses of land which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use. See Clark-Aiken Co. v. Cromwell-Wright Co., Inc., 367 Mass. 70, 83-85 (1975).

On the other hand, when the easement holder provides indemnification for the negligent acts of the landowner, it usually reflects the fact that the easement holder and not the landowner will be responsible for maintenance and repair and so helps insulate the landowner from the claims of third parties who seek to rely on doctrines of premises liability in the usual shot gun approach to liability. Of course the interplay between indemnity and insurance coverage can be complex and landowners and easement holders alike should seek out competent and experienced legal counsel to help draft express easements. After all, such agreements usually involve appurtenant rights that run with the land in perpetuity and so demand rigorous planning and forethought.

Written by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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