A Mountain Bike Liability Primer

by Stuart Ulferts

"The most pervasive and fallacious urban myths of our time involve either our food or our courts." Jacob Yetimann, esq.

When private landowners and public land managers make decisions about mountain bike access, one of the first questions they ask is, "Will I get sued if I allow mountain bikers to use my trails?"

Fear of lawsuits keeps mountain bikers off many great trails. For the most part, these fears revolve around a subject that few landowners, public land mangers, or mountain bikers really understand. This is a time of shrinking management resources, with a dynamic legal climate that is both encouraging and limiting litigation in different jurisdictions. So it is more important than ever to help mountain bikers and land managers become familiar with the real issues involved in recreational use liability.

IMBA has been working hard to dispel many of the misconceptions that surround the issue of recreational risk. The shortest and most accurate answer to the question, "Will I get sued..." is, "almost certainly not."

Definitions

To begin, we should clarify the meaning of terms "liability" and "immunity."

In the context of this discussion, "liability" means responsibility for someone elses personal injury due to negligence, like in car wrecks or accidents on your sidewalk. "Negligence" is whatever act (or lack of action) the injured person claims caused the injury. It logically follows that in order to be proven "liable," a person must first be proven "negligent."

Another term that impacts the rest of this discussion is "gross negligence." As a rule, if the injured person can prove that the landowner or manager was grossly negligent, then the protections of the various statutes we are going to describe will not apply. The good news is that gross negligence is hard to prove and can be avoided by using a modicum of risk management and common sense. In order to be found "grossly negligent," one must do something that is obviously and terribly unreasonable, like leaving a case of dynamite on the trail, to use a popular example from the law texts.

Landowner liability limitations

The most basic protection for private landowners is the state recreational use statute. Each state has one, and they all follow a basic pattern. If landowners allows people to recreate on their land without charge, then the landowner has immunity from personal injury lawsuits brought by visitors.

State statutes vary in some important details, such as the exact duty of care borne by each landowner to identify or warn about known dangers. But it is fair to say that within the context of allowing people to ride their bikes on dirt trails for free, the private landowner is in a very strong legal position to have a personal injury negligence lawsuit summarily dismissed.

Sovereign immunity and tort claims acts

Some state recreational use liability statutes specifically include public land management agencies as "landowners" who are protected by the statute. In every state, various state and federal tort claims acts limit the liability of a government agency. The tort claims acts generally give government land mangers a high level of liability protection.

Tort claims acts are legislative codifications of the common law doctrine of sovereign immunity. Long ago, courts decided that kings and governments could not be sued. This view has since manifested as an entire body of various state and federal statutes, which, if they do not provide outright immunity from all lawsuits, will at least severely limit the time, place and potential recovery from a personal injury lawsuit against the government.

Again, tort claims acts are strong protections for public landowners, but there are a few limitations that we should be aware of, mainly for smaller forms of government like counties and municipalities. In a minority of jurisdictions, the sovereign immunity doctrine extends down through the federal and state governments, but not all the way to the cities. Municipalities in these areas can be held liable for negligence if there is not statutory protection for them expressed in that states tort claims act.

IMBA has produced an informative paper on recreational use liability and the tort claims acts. It provides a chart of the status of these basic legal questions for every state. We encourage those interested in learning more to call the IMBA main office for details on how to obtain this document.

Good samaritan laws and the Volunteer Protection Act of 1997

Another important common law doctrine that relates to our discussion of mountain bike liability is the idea that volunteers are immune from regular (remember: not gross) liability. Most states, and now the federal government, have codified this expression of public policy into so called good samaritan laws, which protect volunteers from lawsuits for negligent acts carried out during the regular course of their volunteer work.

Good samaritan laws protect members of trailwork parties who might be sued for building a negligently designed trail upon which someone was later injured. They would also protect leaders of group rides or volunteers who helped out at club events where someone was injured. They do not protect the clubs themselves, so that lawsuits against volunteers that get dismissed by virtue of good samaritan laws might still prevail against the organization and its assets (such as the clubhouse or club bank account).

The most important good samaritan law is the federal Volunteer Protection Act of 1997. It sets a minimum standard of volunteer protection that applies to all the states.

Risk management

The various laws that protect landowners, public land management agencies, and the volunteer public from recreational use liability lawsuits does not reduce the need for what is still the most effective form of protection: simple but careful risk management.

What is risk management? It is an insurance term that means using your common sense to identify and reduce risk in any given situation. For mountain bikers, simple risk management includes having everyone who participates in an event sign a liability waiver, ensuring that ride leaders are familiar with a trail before they guide a club ride there, and ensuring that the people "in charge" have simple standards for accidents and medical emergencies in place before they open an area to riding.

More than just reducing danger and preventing accidents, the establishment of sound risk management policies will greatly reduce the likelihood that someone will be found "negligent" in the event of an accidental injury. This is because the prior existence of risk management policies are evidence that a individual or organization was not inconsiderate of the risk. For this reason, risk management policies are most effective when put in writing before there is a problem.

Risk management policies need not be complex nor exhaustive, merely thoughtful. The best source for suggestions about risk management comes from your insurance carrier. McKay Insurance Co., IMBAs insurer, has spent a lot of time working on risk management for cyclists and would be happy to discuss the subject with you.

Liability waivers

Waivers deserve special mention because they are one of the strongest risk management techniques. A carefully drafted liability release or waiver will stand up in court.

Every state has a slightly different perspective on what constitutes a valid waiver, so IMBA cannot offer specific advice for drafting waivers. We suggest that you look at the waiver of other organizations that are involved in outdoor recreation. A local ski area or climbing gym are good places to start. You might also consider the standard waivers provided by national competitive organizations, like NORBA. In any case, it would be a good idea to have a local attorney review yours if you can.

Insurance

Insurance can sometimes be a double edged sword, though the benefits almost always outweigh the drawbacks. The existence of an insurance policy can make a lawsuit a more attractive option for an injured person looking to have their medical bills and suffering paid by someone else.

A persons house or business can be just as attractive an asset as an insurance policy to a potential plaintiff, and without the later, you may stand a better chance of losing the former. My advice to private individuals has always been that if you dont have and do not foresee obtaining any wealth or assets, then you may not have anything to protect with insurance. If you do have assets of any kind, insurance for yourself, or through your club, is a sound investment.

For private landowners, the choice is more clear-cut. A policy taken out by the landowner, or by a local club for the benefit of the landowner that is equal to the value of the property, is only prudent. Even if the activity is squarely covered by an existing liability immunity statute, your insurance could help pay for the defense of a nuisance lawsuit (a claim without merit that should be thrown out of court).

Liability insurance requires spending money, but you may be surprised how little a simple liability policy can cost.

There is a small but disturbing trend among public land managers to require some kind of private insurance before allowing public recreational activity to take place.

Trouble in Connecticut

In 1996, in Conway v. Town of Wilton, the Connecticut Supreme Court upheld the right of a 12 year-old girl to sue a municipality for a serious ankle injury she sustained on a public tennis court. In doing so, the Court overturned years of prior decisions, including one of its own rendered less than four years earlier.

The Connecticut Supreme Court said in Conway that the state is protected by sovereign immunity and private landowners are protected by the Connecticut Recreational Use Immunity statute, but Connecticut municipalities are not expressly covered by either protection. The Court held that the Connecticut legislature had not expressly intended that municipalities enjoy the same protection as private landowners. Absent the expressed intent to protect municipalities, the Court was unwilling to do what prior courts had always done: infer that it existed anyway.

The fallout from the Connecticut case is ongoing. In early 1997, the legislature bowed to pressure from the state Trial Lawyers Association and refused to pass an amendment to the state recreational use statue that would include municipalities. City parks are closing their playgrounds and other facilities. A recent proposal which threatened to ban all "high risk" sports, including climbing, roller blading and cycling from important public lands (see story, page one).

Analysis, conclusion and opinion

The Connecticut decision threatens to heighten the risks of public landowner liability in every state. Park officials elsewhere have begun to hear about Conway v. Town of Wilton, and are reevaluating their access policies in light of it. Even worse, personal injury attorneys, citing Conway in their arguments, will begin taking on test cases in other jurisdictions in an attempt to chip away at the legal protection offered to public lands. There is, after all, no "deeper pocket" than the government, so every opportunity to weaken a citys immunity from personal injury lawsuit will eventually be exploited to the fullest by injured plaintiffs and their ambitious lawyers.

Sadly, there is an attractive populist argument in favor of allowing individuals to sue city parks. Why should government officials be held to a lesser standard of social and legal responsibility than individuals? The answer is that they should not be held to a lesser standard, but the enforcement mechanism cannot be the courts. This is because when we are suing the government, we sue ourselves.

The social function of recreation is to "re-create" the individual and enhance civility among the people. Recreational use lawsuits stab at the heart of that mission. Continued litigation between citizens and their own parks will finally render the mission of public recreation impossible to fulfill.

Despite the Connecticut example, there is plenty of hope on the legal horizon for recreational use immunity. Colorado and Maine have both assembled a body of legislation which promises to help put a halt to nuisance outdoor recreation personal injury lawsuits. California, always advanced in trends affecting the courts, and generally classified as a pro-plaintiff state, has begun to address recreational use liability in a somewhat unique way.

The California state assembly recently created different classes of recreational activities and conferred an "assumption of risk" upon those pursuits which the legislature deemed the most hazardous. A mountain biker in California who wants to sue a land manager for accidental injury must now overcome a legal presumption that the rider assumed the risk when he or she embarked upon that fateful ride.

Because of the hard work of many recreational activists, including mountain bikers, the risk of being sued by an injured visitor to ones land is lower than it has been in years. Recreational use immunity laws and other legal protections abound, release of liability waivers are being upheld in the courts, and the price of liability insurance is decreasing. Into this hopeful legal environment enters the false populism of the Connecticut Supreme Court decision, which threatens to wipe out the gains in urban mountain biker access that the otherwise favorable liability climate had occasioned. Mountain bikers must rally around their state legislatures to ensure that their local city parks do not fall victim to the "Connecticut syndrome."

As more city parks close for fear of liability, the sad irony is that those whose lives are otherwise and uniformly urban most need the natural release and childlike joy found through mountain biking in nature.

Copyright International Mountain Bicycling Association. Permission to reprint granted, provided credit is given to IMBA and article author (if noted).