# Recreational Trail Liability in USA



## PaintPeelinPbody (Feb 3, 2004)

I've been trying to read up on how liability applies in cases of personal injury in the following circumstances: 

- Injury from rider fault on clearly visible "dangerous" terrain, built or natural on PRIVATE property. 
- Injury from rider fault on clearly visible "dangerous" terrain, built or natural on PUBLIC property.
- Injury from rider fault on clearly visible "dangerous" structure, built by club/owner on PRIVATE property
- Injury from rider fault on clearly visible "dangerous" structure, built by club/government PUBLIC property.


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## Boulder Pilot (Jan 23, 2004)

PPPBody,

Are you in Cali? Where are you getting the word "dangerous" from?


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## PaintPeelinPbody (Feb 3, 2004)

I'm not in Cali, but I don't know what other word to use, the terrain could be hazardous or completely flat, depending on who you are, but in either case, someone gets hurt there, and wants to sue the land owner (private or public).


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## jmitchell13 (Nov 20, 2005)

The recreational use statues vary from state to state. IMBA has a great page with links to all 50 states, IMBA Resources: Liability and Lawsuits: Recreational Use Statutes for All 50 States

It really not a question if you can sue or not. Anyone can file a lawsuit and sue you for almost anything. You would at the very least have to defend yourself in court to get the lawsuit thrown out. (at least that's how it is in NY)...


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## Boulder Pilot (Jan 23, 2004)

I can't help you seeing as I live in San Diego. My advice to you is to research your City and State laws regarding recreational trail use.

I'm going out on a limb by saying that anyone that builds "anything", whether authorized or unauthorized, is a target for being sued should someone injure themself and pursue the matter. Don't get me started on how I personally feel about people getting injured while consciously choosing to participate in a hazardous activity.

California has CCR 831.7 which provides immunity from liability to government entities when a person is injured while participating in a "Hazardous Recreational Activity". Mountain Biking and Dirt Jumping are named as Hazardous Recreational Activities. The big issue I've faced the past 5 years trying to get a Bike Park on the ground is CCR 831.7d. This gem of State Law specifically denies the blanket of immunity to nonprofits, whether or not there is a legal contract with local government.

If you are inquiring about private property, please consult an attorney. I've read so much bad info on line on this very subject. Consulting an attorney for any of the scenarios you mention is the best piece of advice I or any one can offer you. Please be safe and don't give up.


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## PaintPeelinPbody (Feb 3, 2004)

I am not in a lawsuit, but I am very interested in the subject as to relay any information I've got to our local municipalities when the topic of liability is brought up, which these days is constantly.

In Pennsylvania, we've got PENNSYLVANIA STATUTES TITLE 68. 


477-6. Liability not limited
Nothing in this act limits in any way any liability which otherwise exists:
*(1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.*

Although I'm fairly good at understanding the terminology of law, the above section loses me. Is it saying that if I don't warn someone about a say, a MTB stunt, that it is a willful failure of warning?


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## Boulder Pilot (Jan 23, 2004)

Honestly, I'm too lazy to look up Pennsylvania law. What is it that you are trying to do? Are you working (trying to work with) a local, state government agency on building progressive trails? Who is bringing the topic of liability up? Why is liability being brought up?

If you don't mind laying out your situation it could save you a lot of time and answering one-two questions at a time.


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## Trail Ninja (Sep 25, 2008)

PaintPeelinPbody said:


> 477-6. Liability not limited
> Nothing in this act limits in any way any liability which otherwise exists:
> *(1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.*


I'm not a lawyer but I saw one on TV once.

I read this to say that if you marked the trail as containing dangerous sections, you'd be OK. You might have to indicate what those dangers might be.

The part that scared me in this was the "dangerous use/activity". If you don't warn that base jumping from the 50' cliff is dangerous... or that petting the bears is dangerous, you may be liable? Not you obviously but the landwoner might be a little spooked by the wording there.

The law was definitely designed to encourage landowners to allow public access to private land.

http://old.imba.com/resources/trail_issues/pdfs/pennsylvania.pdf


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## Boulder Pilot (Jan 23, 2004)

Crossing a street is very dangerous. I don't see signs explaining this.

I would be very careful interpreting what is posted here since the complete statute is not included.


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## slocaus (Jul 21, 2005)

One of the IMBA attorneys is on MTBR, name IMBAcile http://forums.mtbr.com/member.php?u=518740 He obviously has a sense of humor, huh? 

I'd PM him if he does not pop in here.


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## PaintPeelinPbody (Feb 3, 2004)

Well I've been following the closer of rogue trails at in Washington State and other places, and it seems that liability is often the reasoning behind the closer...although the property owners (in these cases its was the State DNR) usually allowed stunts/jumps after trails became legit. 

I'm working at the local level, and I'm actually a county employee, so this is both useful to me as a trail builder, but also because someday I want to be the "cool" property manager we all hope to deal with. 

Not only that, but I want to be able to call "bullsh*t" when someone says "we can't have you building those 2'-off-the-ground log bridges because of liablity", and if they do, I want to know how to help them understand better ways of insuring or posting their property to allow users to actually enjoy the public space available to them. 

The area where we're hoping to build we've already got approval for trails, though they (the municipality) don't really understand that mountain bikers do more than just ride Jeep trails. The property is ripe for built features, and you're more likely to be injured by one of the neighbors discharging rounds than you are on the small built features we've got planned.


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## cjohnson (Jul 14, 2004)

*"willful and malicious"*

for the portion posted, willful and malicious means if a person intentionally wanted someone to get hurt. there is no protection for that.


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## Ridnparadise (Dec 14, 2007)

The liability of perhaps being liable is such a strange modern disease. Out here local councils are spending up big altering and regulating everything to avoid the potential for liability. No native trees in new deveopments cause they drop branches and someone may take legal action is just one example:skep:. 

Our local water authority just rebuilt a dam in the area with a massive new structure. To cater to tourist interest they put in a new picnic and BBQ area. It is below the dam wall with a view of - guess what, the dam wall. They don't wan't anyone polluting the water by being able to see it and enjoy being near it. 

MTB trails raise a load of issues and hence the struggle and time delays getting any action from the public land managers. The said dam happens to be the site for the 2018 Commonwealth Games XC course. The water authority has been saying it doesn't want the trails re-made (the old ones were partly destroyed or inundated) and they don't think bikes have a place there at all. That may bring Federal and State Gov departments into conflict and certainly raises some issues about the very substantial State Gov donation to the local MTB club for trail management at the site.

Thing is that we hear so much about risk mitigation and liability potential, but it just isn't matched by legal risk. When asked how much MTB has cost in legal claims, the answer is usually - well there haven't been any successful claims. So what is it that LMs are really worried about?

PPPbody - I know this isn't exactly answering what you are asking, but like the others above, it is the best I can offer. My guess is anything could be considered a risk and by winning a case in court you confirm that risk. Having said that - if we were prevented from ever driving due to the obvious and known risks, would we accept that? 

The entire liability issue seems to be made for lawyers and advisors to earn income from - JMO. We as riders accept the risk of our sport and are prepared to push the bike to the trailhead with our testicles in our pocket when we get it wrong. The biggest and nastiest jump trails in this area are so huge that one look confirms that you can't ever attempt them (we're talking 6+m drops and 9+m gaps, plus lots of wood features etc). Logic would say that such obvious risk would have them bulldozed fast, but not so far. Council is actually looking at them as an ongoing riding site - go figure.


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## smeets1 (Dec 30, 2003)

In full disclosure, I am a real estate attorney in Michigan. 

To truly understand the application of a recreational land use statute, you need to understand the cases law interpreting the statute. Unless you understand how the statue has been/is applied by the courts, your best bet is to simply state: “I am no lawyer, but I understand that the state, county, city, township, etc. is protected under governmental immunity and the state recreational land use statute.” Your relationship with the governmental body/and your perception of its support for the particular project will dictate whether you should hire an attorney to assist you or if you should ask your contact to seek an opinion from the government’s counsel.

Feel free to contact me with any questions. My contact information can be found by Googling Aaron M. Smith at McShane & Bowie, PLC


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## UncleTrail (Sep 29, 2007)

I'm not an attorney but I was a Parks & Trails Planner.

Who owns the property is somewhat irrelevant IMHO. What matters is whether or not the trail is open to the public and who the managing agency is, if there is one.

If the trail is closed to the public, there are no "no trespassing" signs, or any other warnings, then perhaps "dangerous trail conditions/structures" could be perceived as attractive nuisances and the property owner could be held liable.

If there was/is signage then the property owner might be protected, but every case is different.

If the trail is open to the public, i.e. official county trail, then the property owner may be covered by a Recreational Use Statute. <---- That's what you need to be searching for in your state.

Keep in mind that some trails are built on easements across private property, in which case the trails managing entity might be liable and not necessarily the property owner, for any injuries that occur because of unsafe conditions. If liability can be proved.

And also keep in mind that many public agencies are self-insured. They will error on the side of caution.

EDIT
Oh yeah, one more thing.... you mentioned no one has been injured yet while MTB'ng and filed a lawsuit. 
#1 Look into what happened to public skateboard parks in MA/RI? I believe. All it takes is one injury and then they all get shut down.

Also, we had someone get seriously injured on what he thought was a county trail. It wasn't. He was missing for 24 hours before S&R found him with a broken neck among other injuries. He fell into about a 4' deep washout across the trail. That's what happens when you ride at night with no lights on a non-maintained trail.

Missing biker found injured on trail | trail, sevene, nelson - Breaking News - Colorado Springs Gazette, CO

I had been trying to open this unofficial trail for quite some time. I warned them someone would get injured unless they started maintaining the trail and proposed opening it as a county trail so I could bring our crew in to take care of it. But the local HOA and AFA wouldn't have any of it.

I had emailed the property owner (Air Force Academy) and asked them to remove any "bike trail" signage before the accident. Was also interviewed by a local newspaper beforehand and publicly stated we did not manage the "trail". No one knows where the "bike trail" sign came from. My research told me it was a utility easement.

Lucky for me I did that since he not only tried to sue us (County) but the AFA and CDOT as well. Not sure what luck he had. But I know he didn't get anywhere with us. CYA.

So yeah. People get injured. And they sue. It does happen.


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## Ridnparadise (Dec 14, 2007)

UT that was me not the OP saying no-one has sued. We litigate like crazy here too, but haven't heard of it on the local trails. 

Isn't it interesting that renovating a dodgy trail reduces the risk, but increases usage. That seems to be at odds with the general statistical concept that user density increases risk. It is the one thing that gives hope to the development of trails where LMs are very nervous about risk.


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## UncleTrail (Sep 29, 2007)

Ridnparadise said:


> UT that was me not the OP saying no-one has sued.


Oh! sorry. My bad.


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## GeePhroh (Jan 13, 2004)

PPP, you need some advice from a civil attorney who practices in your state (PA?). While there certainly are some broad principals of liability (which you can probably find at IMBA), laws differ drastically from jurisdiction to jurisdiction.

More importantly, the black-letter statute does not really matter when it comes to the application of a law to a particular set of facts. The precedents in your state (and county and city) are often the best indicator of how the law has been interpreted and terms have been defined. 

I'd add that the political climate and other institutional factors may play a bigger role in the presumtive risk analysis that a potential defendant (i.e., a public or private landowner) might perform when they encounter a trail feature on their land. For example, in the specific case that you've referenced in WA state (the North Fork, I'm assuming) the DNR was highly inclined to take a broadly expansive view of legal liability. They chose to interpret WA's somewhat vague controlling statute (RCW 4.24.210) in a way that supported their goal of closing a particular trail system, even though legal precedent would suggest that their level of risk was negligible. It was never intended to be an honest, realistic assessment of liability.


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## PaintPeelinPbody (Feb 3, 2004)

I want to thank everyone for the input on this topic. 

It seems as though if we're talking public property, the concern is really a political concern, not one of a liability. Luckily in my current area they don't really understand mountain biking. They think we ride old atv trails and prefer old roads. Many local municipalities don't understand trail building, and generally allow it because they'd rather someone else maintains their property. 

So with that said, and with the information posted in this thread, I should have better luck if the topic of liability were ever brought up.

Thanks again.


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