# What is the REAL story behind legal liability?



## SWriverstone (Sep 3, 2009)

While there are many different reasons why a landowner might not want MTBers riding on their property, I think it's fair to say that a BIG one—the one that comes up all the time—is liability, or put simply, the fear of being sued if something bad happens.

I'm really wondering what the REALITY of this is? It just seems that a lot of the liability thing falls squarely into the mythology camp.

Questions I'm pondering are...

1) How often do people who hurt themselves on someone else's property actually take the property owner to court? (Every day? Or more like a couple times a year?)

2) More specifically, how often does this happen in the context of outdoor recreationists suing a landowner when they hurt themselves out in the woods, e.g. from crashing their bicycle in a ditch?

3) There is this thing we've all heard of called a liability waiver. Are these things worth a damn? In other words, the mythology says "a waiver doesn't mean squat—the person who signed the waiver can still take you to court." If this is true, then what's the point of having a waiver in the first place if it's worthless?

I'd love to hear from any lawyers on the forum about this...as well as anyone who has ever been involved in a lawsuit like this.

Scott


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## zrm (Oct 11, 2006)

Fear of lawsuits is certaily part of the equation, but a lot of property owners I've talked with cite the lack of respect MTBers have as being as big an issue as liability. Way to many of us do not stay on established trails, create "features", make new trails etc without regard for the property owners.

Many owners would have no problem if riders just stayed on the established route and passed through quickly and quietly and respected their property. 

As to the legal issues, I'm not an expert but I do know laws on property owner liability varies state to state


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## Megashnauzer (Nov 2, 2005)

anyone can sue anybody for anything. even though you may not be found liable there are still lawyer fees. from what i understand, if someone sues, they sue everybody, land owner, bike club, bike manufacturer, bike manufacturer's dog...it's ridiculous.


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## Megashnauzer (Nov 2, 2005)

waivers are a gray area to me. contact the imba insurance guy. he's got all the answers.


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## Trail Ninja (Sep 25, 2008)

#2.
3 cases in my memory (going back 20 years) in my area. Central Vancouver Island Canada. 2 small towns with a total population of about 20,000.

The area used to be "the" place to ride mountain bikes on Vancouver Island. It still draws a few people but due to apathy on the part of the locals, the few who show up are usually disappointed .

All 3 cases were unsuccessful and all 3 involved poor riding ability and natural, not man-made features.

1. Rides around a fence to get a better view over the cliff and falls 60 feet. Minor injuries.
2. Rides off a 6 foot lip into a shallow gravel pit. (easy to see) Endos and breaks his neck. Total paralysis.
3. Rides straight down a steep hill and loses control, rides well off the path and hits a tree. Broken bones which all heal.

There are lots of people who look for situations where they can sue and get rich. Of the thousands of crashes over the years in this one little park, these are the only 3 people ( know of) who thought they'd give it a try here.

The end result of the gravel pit case is that the land owner closed his section of the trail system to the public so now you can't legally ride from point A to point C. I understand his point completely. He was being sued for 9 million dollars. He's a little mom & pop gravel operation. Although the biker didn't win, it still cost the landowner thousands of dollars & nearly put him out of business.

It's also made it nearly impossible to get permission to build mountain bike trails anywhere around here.


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## bweide (Dec 27, 2004)

I think one thing we always have to consider is the landowner's viewpoint. For the landowner, what are the pluses of allowing mountain biking on your property. Do you get rich? Become famous? Have to fight off groupies? Get invited to fly to exotic locations? Become popular enough to get elected to public office? Never have to buy yourself another drink?

When you balance the lack of material and social benefits from allowing mountain biking on your land against the possible damage to your land and pocketbook, I am impressed any landowner allows mountain biking.


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## Skookum (Jan 17, 2005)

The answer lies in your state recreational/sports protection laws. In Washington State the basic rule is, if you don't charge you have protection. Getting into structures etc you're delving into a bit more, where you're having to have build and safety standards signage etc...
Find your regional laws, find a lawyer to interpret them for ya...


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## Trail Ninja (Sep 25, 2008)

Skookum said:


> The answer lies in your state recreational/sports protection laws. In Washington State the basic rule is, if you don't charge you have protection. Getting into structures etc you're delving into a bit more, where you're having to have build and safety standards signage etc...
> Find your regional laws, find a lawyer to interpret them for ya...


Some recent changes to the "Occupiers Liability Act" (provincial) up here in BC have made things easier. Similar to the laws in Washington. They are very recent changes and landowners and even regional governments are still spooked.


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## roxnroots (Aug 12, 2010)

Skookum said:


> The answer lies in your state recreational/sports protection laws. In Washington State the basic rule is, if you don't charge you have protection. Getting into structures etc you're delving into a bit more, where you're having to have build and safety standards signage etc...
> Find your regional laws, find a lawyer to interpret them for ya...


I believe (other Keystone staters correct me if I'm wrong) that state law here in Pennsylvania is similar: if you allow unlimited free public access to your land for recreational purposes - you are completely shielded from lawsuits should someone be injured on your land.

That being said, my parents own more than 100 acres in a different part of the state from where I live and they still don't allow public access out of past bad experiences with public use of their property.


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## HypNoTic (Jan 30, 2007)

AFAIK, the Rec Law doesn't shield the landlord from lawsuits, but make it impossible to win the case.


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## DancingBear (Jan 12, 2004)

_Disclaimer: I am not a lawyer or expert in the ways of law, but I've spent a lot of time working on issues of liability as it pertains to mountain biking_

Great questions. Liability is cited by both private and public land managers as a reason to exclude mountain bike access. Often, it's a cover for other reasons. Open water ditches and softball fields create much more risk for a landowner than your typical slice of singletrack. It's important to understand liability so that you can jump that hurdle as you try to get down to the land manager's real motivation.

Answers below.



SWriverstone said:


> While there are many different reasons why a landowner might not want MTBers riding on their property, I think it's fair to say that a BIG one-the one that comes up all the time-is liability, or put simply, the fear of being sued if something bad happens.
> 
> I'm really wondering what the REALITY of this is? It just seems that a lot of the liability thing falls squarely into the mythology camp.
> 
> ...


Recreational Use Statutes were also mentioned. The basic rules shared by Skookum are generally true. But they vary from state to state and can have some strange quirks, so have an expert explain your state's RUS to you. On a side note, Recreational Use Statutes are regularly targeted for changes that reduce protections by a very big and powerful special interest group that will go unnamed so that I don't get sued. In Illinois, for example, the RUS changed from fairly strong to virtually useless (only provides protection for incidents involving hunting and fishing) overnight. So pay attention if you see any news about the RUS in your state.

I check this forum fairly regularly. Feel free to drop me an email or post up here if any of you have questions about liability, if I don't have the answers I'll hook you up with someone that does.

Cheers,

Ryan Schutz - IMBA Director of Field Programs


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## RunRideSki (Feb 9, 2010)

In Ontario, sometimes the issues mtb groups come across is the (maybe) misguided notion that it would be okay to allow pedestrian only trails on private property but not mtb trails. Anyone come across that one? Are bikes ACTUALLY more of a liability (in terms of getting insurance coverage) than hikers, or are people just misinformed?
The Bruce Trail here in Ontario has done a TON with getting easements for their trail on private property. Why is this different?


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## SWriverstone (Sep 3, 2009)

Thanks for the good information Ryan! :thumbsup: I wasn't even aware of the phrase "Recreational Use Statutes," so that helps.



bweide said:


> I think one thing we always have to consider is the landowner's viewpoint. For the landowner, what are the pluses of allowing mountain biking on your property. Do you get rich? Become famous? Have to fight off groupies? Get invited to fly to exotic locations? Become popular enough to get elected to public office? Never have to buy yourself another drink?
> 
> When you balance the lack of material and social benefits from allowing mountain biking on your land against the possible damage to your land and pocketbook, I am impressed any landowner allows mountain biking.


Excellent point, and sadly I guess this gets to the bottom of it. I can think of a few reasons why a landowner might want to open their property to biking, but I'm pretty sure they're rare...

• They instantly become well-liked by lots of people (could be appealing to attention-starved or socially insecure types)

• They might be a fan of mountain biking or want to get into it, so opening their land to riding could be the perfect intro to the sport

• They might appreciate having their land being used and enjoyed by others and having some purpose other than just existing (assuming they aren't farming it).

• They might be able to make a little bit of money-not off the trails (because that could create a rat's nest of liability and compliance issues) but by offering shuttle service to riders...or selling food...or stuff like that.

• They'd have a willing army of riders to help them with landscape labor-related stuff (like clearing downed trees, moving boulders, etc.)

• They'd possibly benefit from the good PR associated with publicity of mountain biking on their land (e.g. be mentioned in local papers, etc.)

---
Okay, I'm sure some may be laughing at these reasons for allowing mountain biking on your land...but hey, I'm trying to look on the positive side! 

Scott


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## formica (Jul 4, 2004)

when you find that "willing army" send them my way...


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## Trail Ninja (Sep 25, 2008)

Scott, you are right with most of your reasons why.



> • They instantly become well-liked by lots of people (could be appealing to attention-starved or socially insecure types)


 On the same trail system I mentioned, with the gravel pit section closed, there is a trail head at one end where you have to ride about 100 feet down a fellow's driveway.

In the trail descriptions on many websites, riders are asked to thank the landowner if they see him. I know him and he just loves all the bikers riding by and saying hello and thanking him. He'll never close access through his property.


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## Woodman (Mar 12, 2006)

As a trail professional, I often serve as an expert consultant and witness in trail related lawsuits (not just mtn biking). The trail lawsuits are on the rise in general, I am under retainer for 5 right now. 

The good news is it is rare that one of the cases wins if the case goes to court. None of the ones I have been involved in had a plaintiff win. The bad news is it still cost money for the defense. 

The best plan is developing a good risk management plan. There is some basic stuff on such on the IMBA website, but I would suggest hiring a consultant to develop a good risk plan for your specific site (bike park, trail system etc.). 

Woody Keen- Trail Dynamics LLC


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## cmc4130 (Jan 30, 2008)

Woodman said:


> As a trail professional, I often serve as an expert consultant and witness in trail related lawsuits (not just mtn biking). The trail lawsuits are on the rise in general, I am under retainer for 5 right now.
> 
> The good news is it is rare that one of the cases wins if the case goes to court. None of the ones I have been involved in had a plaintiff win. The bad news is it still cost money for the defense.
> 
> ...


So you're testifying for the defense? What do they have you testify to? That a trail meets IMBA standards etc? that mountain biking is inherently dangerous etc? Does the other side ever employ an expert to say that a trail is NOT to IMBA standards? I would hate to see trail builders testifying against each other. But I've seen it in other professions.


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## nov0798 (Nov 27, 2005)

As for liability waivers, they are JUNK, USELESS! I know someone who was hit by a 3 wheeler many years ago at a race. He was still able to sue if he wanted to, basically because you cannot waive something that hasnt happened. In the end, the owner of the 3 wheeler paid the hospital costs, so no big deal.


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## Walt Dizzy (Aug 18, 2003)

formica said:


> when you find that "willing army" send them my way...


We have an army of people who *say* they want to help. When the time comes to do something...not so much.

Walt


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## Trail Ninja (Sep 25, 2008)

Walt Dizzy said:


> We have an army of people who *say* they want to help. When the time comes to do something...not so much.
> 
> Walt


We're really poor so I try to encourage those people who don't like dirt in their boots to donate cash. They tend not to be much help out on the trails anyway. Catch them in a group setting & they find it hard to refuse.

"I sure could use some help out here on Saturday digging this bench out"
"I'd love to but Saturday is my kid's soccer game"
"That's OK. How about if you donate $50 towards a new McLeod, the one I've got is worn out and the handle's cracked? That would really help us out."

Oh, and it's no army, it's more like a gaggle.


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## Loren_ (Dec 3, 2006)

SWriverstone said:


> I can think of a few reasons why a landowner might want to open their property to biking, but I'm pretty sure they're rare...


Another reason is that more legitimate land use means that there is less illegitimate use. Illegal hunting, trash dumping, ATV trespassing, etc. - all drop significantly when there is active mountain biking in the area.


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## Woodman (Mar 12, 2006)

cmc4130 said:


> So you're testifying for the defense? What do they have you testify to? That a trail meets IMBA standards etc? that mountain biking is inherently dangerous etc? Does the other side ever employ an expert to say that a trail is NOT to IMBA standards? I would hate to see trail builders testifying against each other. But I've seen it in other professions.


While I can not speak to the specifics of active cases, I can speak to some generalities. Experts are brought in mainly to comment on the design and management of trails. When land land managers are named in as defendants in lawsuits the main question/issue is "did they act in a prudent manner" meaning did they act in a similar way to other land managers.

I mainly serve as an expert for the defense team, but experts do have to do some work for the plaintiffs side from time to time otherwise you will be portrayed by the plaintiffs side as being a biased witness.

Woody


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## mtbikernc69 (Mar 23, 2004)

DancingBear said:


> _Disclaimer: I am not a lawyer or expert in the ways of law, but I've spent a lot of time working on issues of liability as it pertains to mountain biking_
> 
> Great questions. Liability is cited by both private and public land managers as a reason to exclude mountain bike access. Often, it's a cover for other reasons. Open water ditches and softball fields create much more risk for a landowner than your typical slice of singletrack. It's important to understand liability so that you can jump that hurdle as you try to get down to the land manager's real motivation.
> 
> ...


Gee...wonder who "that" could be.


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## SWriverstone (Sep 3, 2009)

Loren_ said:


> Another reason is that more legitimate land use means that there is less illegitimate use. Illegal hunting, trash dumping, ATV trespassing, etc. - all drop significantly when there is active mountain biking in the area.


EXCELLENT point there Loren! :thumbsup: I never thought of that, but it makes a lot of sense.

Scott


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## slocaus (Jul 21, 2005)

SWriverstone said:


> EXCELLENT point there Loren! :thumbsup: I never thought of that, but it makes a lot of sense.
> 
> Scott


Here is a posting from the Santa Cruz Bikes Blog that covers that topic of Local Politics, and how mtb presence can likely turn around a bad area, and the resistance from land owners. Kind of off the point of this, but still pertinent.


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## Seanbike (Mar 23, 2004)

Yep, us flatlanders in IL got screwed by that big pocket national organization that goes unnamed. The thing that really gets me is that user group already was protected by the existing legislation but now the statute excludes pretty much all activity except theirs. 

Where's my millions so I can hire a lobbiest?


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## SWriverstone (Sep 3, 2009)

There might be no difference whatsoever...but I'm also curious as to the difference between the phrases "liability waiver" and "informed consent."

The phrase "informed consent" by its very name sounds like it might be a bit stronger (because of emphasis on the "informed" part).

Scott


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## Mark E (Feb 7, 2006)

You can have a lot of confidence in a liability waiver that has been reviewed and approved by an in-state attorney (because state laws vary). BUT ... you will still have to defend yourself in court, which means getting a lawyer, which means $$$. 

That's why having proper insurance is vital -- your policy will cover your defense costs, which will be substantial even if you know from the get-go that the case will be decided in your favor. 

The last time I looked into the legal history, a properly designed waiver had never been defeated in a liability case. But they have very limited application on public/private lands where it's unlikely that you can ensure everyone who rides there will be required to sign the waiver. Only in situations with tightly controlled traffic -- like a completely fenced-in bike park, or a resort -- would waivers be reliable.


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## M_S (Nov 18, 2007)

Hi, I know this is kind of old but I have a few things to add.

I'm not a lawyer, but I do have a passing familiarity with this subject, albeit more related to federal agency liability under state laws. State recreational use statutes apply to them as well, more or less. Generally these laws are designed so that private landowners will grant access to users. They are meant to protect, not hurt landowners. That said, I know a number of (most?) states remove the protections under these statutes if you charge for access, either at all or above a certain amount. So be aware of that hurdle. if the landowner wants to make money or recoup costs through fees, the standard of care they owe to visitors is significantly higher in most cases.

Also, from my limited knowledge of some cases, a key point often seems to be whether there was preexisting knowledge of a specific or unusual threat, and whether visitors were warned of that threat. For example in _Claypool_, an often cited case from 1951, the USPS was held negligent for failure to warn of recent aggressive bear activity and specifically telling visitors it was safe to camp. They were later attacked, and sued.

But yeah, legal advice specific to the state you are in is absolutely critical.


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