Maine law limits liability on private trails, such as where Georgia woman died

Cliff Walk Trail at Prouts Neck in Scarborough is closed Tuesday, September 20, 2022. Shawn Patrick Ouellette/Staff Photographer

In Maine, where 90 percent of the land is privately owned, there’s a long tradition of property owners allowing hikers and hunters on their land.

That public access is what led 54-year-old Romona Gowens, of Calhoun, Georgia, to the Prouts Neck Cliff Walk on Monday morning. She fell 30 feet to her death after a fence she was leaning on broke. Scarborough police called it a “tragic accident” and said Wednesday they have closed their investigation.

The 2-mile trail where Gowens was walking with her sister runs across private property, but has been used by the public for decades. It is posted with notices about the dangers walkers could face and their own assumption of risk as they traverse the trail.

Like other states with wide expanses of undeveloped land, and people who want to use it, Maine designed its recreational use statute to motivate property owners to allow access.

“The policy behind this is to encourage outdoor recreation and for folks who have lots of land to open that land and not fear liability for doing so,” said Anthony Moffa, an associate professor at the University of Maine School of Law.

The Cliff Walk is privately owned and maintained by the Prouts Neck Improvement Association, but its decades-long continuous public use gives the public the right to use the path, according to Scarborough town officials.

The Prouts Neck Improvement Association’s website outlines a long list of rules and regulations for the Cliff Walk. There also is a warning on its website about the trail’s dangers and risks:

“The Cliff Walk is not a manicured or flat path. It is a largely natural, narrow trail along the edge of rocky cliffs and the ocean, over sharp rocks, and across pebble beaches. It will be slippery and wet in places. Some sections require climbing up and down over irregular terrain. It can be quite dangerous walking, especially for young children and persons with mobility issues. … Users assume all risks associated with their presence on the Cliff Walk.”

Signs at the start of the Cliff Walk Trail at Prouts Neck in Scarborough. Shawn Patrick Ouellette/Staff Photographer

Generally, all landowners in Maine have a duty of reasonable care to invited guests on their property. If there is an obvious danger, the landowner must fix it or post warning signs to alert others.

But when people are coming onto the land for recreational and harvesting reasons, state law does away with some of that liability, Moffa said.

In those cases, landowners no longer have a duty to keep the property safe and aren’t required to warn people about hazards. There are exceptions for cases of malicious failures to warn about dangerous conditions or if the landowners charge fees for recreation activities.

Maine’s legal definition of recreational and harvest activities is broad and includes hiking, biking, hunting, sightseeing and skiing. If the land is not posted, the public has the right to use it for those activities.

“The design of these statutes is to promote this type of outdoor activity,” Moffa said. “The cost that you’re paying is you’re giving up the potential for recovery (of financial remuneration) in situations where someone is injured or dies.”

The widespread use of private land by the public is a tradition that is highly valued by the people of Maine, according to James Acheson, a University of Maine anthropology professor who wrote about the tradition in Maine Policy Review. Acheson, who died this year, advocated for policies that preserve access to private land for recreational purposes.

“People hunt on land owned by others, run their snowmobiles and ATVs on it, and use the land for activities such as bird watching and cross country skiing,” he wrote. “In northern Maine, people take hiking and canoeing trips in which they camp on land owned by others for days on end.”

Chris Lewis, a partner at Hardy Wolf & Downing who has handled cases involving the recreational use statute, said it was envisioned for places like northern Maine, where there are huge chunks of land owned by timber companies and other private entities.

When it comes to situations like this week’s death in Scarborough, there are likely going to be many questions about whether the situation falls under the recreational use statute, he said.

“I can imagine there will be complex legal issues involved with that situation,” Lewis said.

Tim Pease, a partner at Rudman Winchell in Bangor and Ellsworth, said he doesn’t come across many cases involving the recreational use statute because the law is fairly straightforward. But, he said, when someone is injured or dies, it’s a natural reaction to question if someone is responsible.

“Whenever someone is hurt, or in this case tragically dies, people are going to look around and say who is responsible and how can we prevent that in the future,” he said.