• 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.

Risk management is a systemized approach to incorporating safety into the mountain biking experience.

1. Manage the risks on your trails
2. Minimize the losses from lawsuits

1. Prevent injuries in the first place
2. Build your organization’s “defendability” in the court of law
3. 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.

1. Design and build trails appropriately
2. Manage and maintain them consistently and responsibly
3. Acquire the protection of a sound insurance policy (or other risk transference strategy)

The key to avoiding lawsuits: Run a tight operation.

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.

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.

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.”

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.

• A moving target
• Different in every scenario
• Based on common sense
• What is reasonable and prudent?

1. Design and construct the trail appropriately
2. Inspect and maintain the trail appropriately
3. Address unreasonable hazards and post warnings
4. Anticipate foreseeable activities and take reasonable steps to protect user

• 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

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.