Presented at the 2008 IMBA Summit/World Mountain Bike Conference
Speakers: Pete Webber, International Mountain Bicycling Association; Jeff Jackson, Algonquin College
This resource is offered for educational purposes only. It does not constitute legal advice.
Liability and risk management are some of the most daunting topics faced by trail managers today. In our litigious society, exposure to liability cannot be taken lightly, and the ability to manage risks appropriately can make or break an operation. It seems like every time you open the newspaper, another lawsuit is splashed across the pages. The number of civil cases filed in U.S. District Courts more than doubled from 1980 to 2000, climbing from 113,000 to more than 259,000. The increasingly litigious nature of society is having a significant effect on trails. Landowners are reluctant to allow recreation on their property, government agencies are wary of building new trails, and non-profit associations struggle to find affordable liability insurance.
Despite these depressing trends, there is an opportunity. Liability concerns have focused and will continue to improve trail design and management practices, benefiting the environment and the trial experience.
- Share the basics of risk management for mountain biking
- Discuss the principals of negligence and liability
- Understand four general tasks to fulfill your duty of care
- Share examples of mountain biking related lawsuits
- Help prioritize needs and take action
Disclaimer: The information contained in this presentation is intended as a resource only and should not be interpreted as a standard. The information is not intended to constitute legal advice and should not be relied upon as a legal certainty. Any individual in need of legal advice on any of the matters discussed should consult with an attorney.
What is Risk Management?
Risk management is a systemized approach to incorporating safety into the mountain biking experience.
Two Goals of Risk Management:
- Manage the risks on your trails
- Minimize the losses from lawsuits
Why Bother with Risk Management?
- Prevent injuries in the first place
- Build your organization's "defendability" in the court of law
- Shut down lawsuits before they start
It's common sense: A risk management program is better for riders, and will save your organization time and money in the long run.
Three Tasks to Manage Risks:
- Design and build trails appropriately
- Manage and maintain them consistently and responsibly
- Acquire the protection of a sound insurance policy (or other risk transference strategy)
The key to avoiding lawsuits: Run a tight operation.
Understanding Risks vs. Hazards
The goal is not to eliminate risk, just manage it. After all, risk is one reason we love mountain biking. So how do you determine the level of risk that is reasonable? The trick is in identifying the subtle difference between a risk and a foreseeable hazard.
Risk is the voluntary taking of a chance. An individual can look down an expert-level ski slope and decide to go for it. It is his choice, a risk he is willing to take. Hazards are hidden, unexpected dangers.
Who is Potentially Liable?
If someone is hurt riding trails in your community, who can be found liable? Generally speaking, every organization involved in the trail's design, construction, and maintenance could potentially be named as a defendant in a lawsuit. This would include the landowner, the trail management agency, and even related non-profit groups... potentially everyone involved in the trail.
Types of Trail-Related Lawsuits
The most common lawsuits faced by trail managers are related to negligence. They occur when an injured visitor claims that a trail manager failed to design, construct, manage or maintain the trail with reasonable and prudent care.
Negligence: In legal terms, negligence is defined as, "the failure to use that degree of care that an ordinary person of reasonable prudence would use under the given circumstances."
Elements of Negligence
In order for a negligence lawsuit to be successful, the person filing the suit (the plaintiff) must prove all of the following four elements:
Duty of Care: They must prove that you or your organization could reasonably have foreseen that your actions would affect them - that the plaintiff is owed a duty of care. If you are responsible for the safety of a trail and the plaintiff is invited to ride it, you owe a duty of care.
Breach of that duty: They must prove that you failed to perform a required task according to certain criteria, known as the expected Standard of Care.
Injury or loss: They must prove the incident resulted in loss or damages.
Proximate cause: They must prove that this breech of duty was the direct cause of their injury or loss.
What is Your Duty of Care?
- A moving target
- Different in every scenario
- Based on common sense
- What is reasonable and prudent?
Duty of Care: Four Tasks
- Design and construct the trail appropriately
- Inspect and maintain the trail appropriately
- Address unreasonable hazards and post warnings
- Anticipate foreseeable activities and take reasonable steps to protect users
Defenses When Negligence is Asserted
- Failure to Prove - Plaintiff must prove all four elements of negligence
- Inherent Risk - Risks that are an integral part of the activity
- Assumption of Risk - Rider has full knowledge of the risk and chooses to encounter it
- Comparative Negligence - Compares trail user's carelessness with the trail manager's
- Government Immunity - Immune from ordinary lawsuits, especially discretionary functions. Still liable for negligence in some cases
- Recreational Use Immunity - Laws that protect landowners from liability claims resulting from recreation
- Occupier's Liability Acts (Canada) - Canadian statutes that limit duty of care owed to recreational visitors
- Waivers and Participant Agreements - Written contract in which rider agrees not to sue and/or acknowledges risks
Examples of Related Lawsuits
Reese v. Oklahoma Earthbike Fellowship (Oklahoma, 2006) Case Settled: Failure to prove negligence.
Plaintiff v. Kolopore Uplands (Ontario, 2006) Case Pending
Humphrey v. State of Louisiana (Louisiana, 2006) Landowner not liable: Recreational Use Statue applies.
VanDerVelde v. United States of America (Wyoming, 1999) Landowner may be liable: Recreational Use Statue does not apply, doctrine of inherent risk does not apply.
Lesage v. Vancouver (City of) (British Columbia,1992) Landowner not liable: Rider assumed risks of riding off the marked bike path.
Schiavone v. Brinewood Rod & Gun (New York, 2001) Landowner not liable: Rider assumed the inherent risks of riding off-road, including holes on the trail.
Calise v. City of New York (New York, 1997) Landowner not liable: Exposed tree root an inherent risk.
McErlean v. Sarel et al. (Ontario, 1987) Landowner not liable: Curve in road not an unreasonable hazard.
Lloyd v. Sugarloaf Mountain (Maine, 2003) Landowner not liable: Clearly written waiver enforceable.
Umali v. Mount Snow (Vermont, 2003)Landowner may be liable: Broad liability waiver not enforceable.
Hindley v. Waterfront Properties Corp. (British Columbia, 2002) Landowner not liable: Occupier's Liability Act applies.
Hardy v. Loon Mountain (New Hampshire, 2002) Landowner not liable: Recreational Use Statue applies.