​A Continuing Care Risk Management (CCRM) member recently asked about a continuing care retirement community's liability for nearby neighborhood residents who walk on the trails and roads behind the facility. The member asked, "What is the organization's liability if someone gets hurt? How should the organization deal with the issue?"

In our response, we provided risk mitigation strategies to help providers with community spaces used by the public. These types of questions come up from time to time with provider organizations, particularly those in the not-for-profit domain that are trying to build relationships with their surrounding communities and wish to give back to the community as part of their not-for-profit mission. Issues can arise when those granted access do not respect their privilege.

To mitigate some risks associated with public use of an organization's property, consider the following recommendations:

• Determine the space that is designated for permissible use and any that might not be due to hazards associated with particular activities. For instance, the organization might permit walkers and joggers, but prohibit bicyclers because of the make-up and width of the path. Another consideration is the use of other types of recreational conveyance, such as skateboards. Additionally, consider times of use; the organization may choose to limit public use of the space to daylight hours to avoid hazards and risks that may arise during nighttime hours.
• Because the organization (and its residents) pay for ownership and upkeep of the amenities provided on the public-use space, identify possible risks specific to the resident population when considering limited-use restrictions. Restrictions on recreational vehicles, for example, may place unintended limitations on residents and their families who use the space with wheelchairs and scooters.
• Post signs that indicate general rules of use, such as the following:
• Intended use (e.g., walking and jogging, but not biking; walking, jogging, biking, but not skateboarding).
• Hours of use
• Post signs about general rules of use in any areas on the property providing pathway entrance and egress.
• Add information to the signs listing prohibited activities. Local authorities, such as police departments, may have more options available to them in addressing unwanted visitors and activities if the information is spelled out in the signage.
• When considering risk management practices for the surrounding property, include local authorities in the organization's discussions to make them aware of the use restrictions. Additionally, seek the local authorities' feedback and suggestions for developing and implementing strategies for effective risk mitigation.
• Include the surrounding property in routine hazard assessments. Evaluate the hazards in relation to use of the space and amenities provided as follows:
• If the area has walking paths, evaluate the paths for hazards, such as uneven surfaces, trip hazards, and abnormally high edges at material transitions.
• Watch for areas where vegetation or landscaping might encroach on the trail or pathway, causing hazards for some activities, such as bicycling.
• Identify areas where traffic patterns might cross, such as at an intersection with a roadway or street. Provide appropriate signage to warn of oncoming traffic.
• Ensure access to more remote areas of the paths by emergency response personnel should the need arise. Directing emergency response personnel to appropriate access points can make a difference in emergency response times.
• Identify and eliminate, if possible, concealed areas where unwanted gatherings and activities might occur.
• Survey the areas for the presence of "attractive nuisances," such as natural areas like ponds, drainage areas, and creeks that might invite curious children. If public use includes use by children and the property has high-risk areas that could be considered having a natural attractiveness, unsupervised use could potentially increase the organization's obligations to manage the attractive nuisance. Local municipalities (along with applicable zoning and safety regulations) should be able to provide direction about any such areas that exist on the property. Landowners have been found to have culpability because measures were insufficient to prohibit access by children. For example, posted signs are typically considered insufficient as a mitigating measure to limit liability for some events involving children.
• Contact the organization's property insurer for additional recommendations and risk mitigation strategies tailored to the organization's needs.

The recommendations contained in Ask CCRM do not constitute legal advice. Facilities should consult legal counsel for specific guidance and develop clinical guidance in consultation with their clinical staff.