safe trails for tourism excellence

Trail Safety Prepared and Presentedby Patrick Connor CAEMarch 1, 2013

Introduction

Provide an overview to trail safety

Laws, regulations and liability

Components – risk management

Understanding of risk and management of issuesto avoid lawsuits

The Safest Trail

Most safe: single use, private land, riders or users trained to expert levelon the equipment, excellent physical health, great weather (extended),no bugs, no animals, no fences, single direction, no crossings, no othertraffic or intersections, bridges are maintained, regular maintnenance,right of ways clear cut, telephone and emergency services everykilometer, great sight lines, ample clearances (360), moderateundulations, washrooms, clear surface, washrooms, first aid access, putouts, no embankments, slopes, grades, rain, deadfalls or bollards, nursein group. (Always slight downhill)………

Trails and You

Trails are not free – somebody is always responsible

Somebody owns the land – property rights

How do you know you/they can ride? Are you licensed? Arethey trained?

Are you court ready? Is your road a trail?

What are you building when you build a trail?

The Personal Accident Resolution System(Canadian Legal System)

Adversarial – plaintiff versus defendant

Courts – dispute resolution and decision onpenalty

Court costs – lawyers, damages, injury

Joint and several liability – if you are involvedyou can be levied a penalty

Trails Situation

The person likely to sue or claim hurt is the person you:

Are serving

Invited to participate

On or in proximity to your trail

Trails Situation

The person likely to be sued is the person:

Providing the service

Involved in providing the trail

Providing training, equipment or awareness

Trail Liability Areas

Land – Environmental build or clean-up of contaminationWater – environmental, building considerationsUse - Nuisances (noise, activity)User – Skill, training, etiquetteOperators - Actions by directors, staff and volunteersOperators/Builders - Occupational health and safetyOperators/Builders - Employment, taxes, fencingOwner/Operators - Occupier's liability for visitors' injuriesOwner/Operators – trail structure, signage, use mix

Ian Attridge – 1999, 2002, 2008

Trail Laws (Most Relevant)

- Municipal Act- Trespass Act- Occupiers Liability Act- Off-Road Vehicle and other use groups - transportation- Specific Land Acts – Niagara Escarpment, Oak Ridges- Public Lands Act- Line Fences Act- Conservation Act(s)- include hunting and fishing

Trails and Lawsuits

Negligence – means somebody wasn’t responsible- owner, operator, user, marketer?- in design and build- access- maintenance- activity- current condition awareness- publicity

Ian Attridge – 1999, 2002, 2008

Trails and Lawsuits

Due diligence – means somebody was reasonably responsible- for design and build- for controlling access- for regular and routine maintenance- for controlling improper activity- for awareness- for publicity

Ian Attridge – 1999, 2002, 2008

Trails and New Awareness

- Assess level of Risk- Observe and Report on Conditions- Reduce Risk Exposure

- signs- design- contracting out- insurance- policies- regulations and laws- tort reform

Trails and The Occupiers Liability Act

General Duty of Care - OLA, subsection 3(1)<An occupier of premises owes a duty to take such care as in all the

circumstances of the case is reasonable to see that persons entering on thepremises, and [their] property ... are reasonably safe while on the premises.

Reduced Duty of Care - OLA, subsection 4(1)<...the occupier owes a duty to the person to not create a danger with the

deliberate intent of doing harm or damage to the person or his or herproperty and to not act with reckless disregard of the presence of the personor his or her property.

Ian Attridge – 1999, 2002, 2008

Trail: Occupiers versus Owners Duty of Care

-Liability does not depend on ownership, but on one or more who are inphysical possession, or who have control over and responsibility for theproperty's condition and who may enter it (OLA)

Lemieux v. Porcupine Snowmobile Club (1997)- Court held that Club was not liable for an accident on railway switching area

next to the Club's trails. There was no evidence the Club controlled thecondition of the area (even though it had attempted to groom it) and theClub had no power to admit or exclude entry.

Ian Attridge – 1999, 2002, 2008

Trails And Reduced Duty of Care

A person is deemed to willingly assume all risks and is subject to the reducedduty of care when:

- Entry is prohibited under the Trespass to Property Act- Occupier has posted no notice and not permitted entry- Entry is for a recreational purpose and: (i) no fee is paid for the entry or

activity (other than payment by a government or non-profit recreation club),and (ii) the occupier does not provide the person's accommodation

- Premises are: agricultural, vacant, forested, wilderness, golf courses whennot open for play, utility corridors, unopened road allowances, markedprivate roads, and recreational trails reasonably marked by notice as such

Ian Attridge – 1999, 2002, 2008

Trail Liability Laws

-Off-Road Vehicles Act - section 20Every person who enters premises on an off-road vehicle or while being towed

by an off-road vehicle shall be deemed, for the purposes of [ss. 4(1), OLA],to have willingly assumed all risks where [no fee is paid and occupier doesnot provide accommodation].

- Motorized Snow Vehicles Act - section 22Almost identical wording to Off-Road Vehicles ActSimilar standards in Nova Scotia's and P.E.I.'s Trails Act, and B.C.'s Occupier=sLiability Act

Ian Attridge – 1999, 2002, 2008

Trails and Mixed Liability Cases

Whaley v. Hood (1998)- Court held that ATV driver was hurt while trespassing, no evidence that

landowner did anything to cause injury, and the property did not requirespecial measures

Onyschuk v. Silver Harbour Acres (1984)- Court found occupier liable where cable strung across private driveway

frequented by snowmobilers; while not deliberately set, it was an obvioustrap with reckless disregard of snowmobilers' presence

Ian Attridge – 1999, 2002, 2008

Trails, Terrain and General Duty of Care

•2 B.C. cases using general duty as in Ontario:•Moore v. Kildare Estates (1982)

- B.C. Court held occupier not liable when man fell stepping on unstable rocksoutside a cottage. "Rugged retreat, great outdoors, unmodified ground"situation demanded he watch his step.

Leith v. McMeans (1984)- B.C. Appeal Court held no liability where guest fell on a pathway. Occupiers

of "recreational, rugged forest property" not expected to maintain paths as inpaved areas and sidewalks in an urban surrounding.

Ian Attridge – 1999, 2002, 2008

Trail Leaders

- Leaders of trail outings are not occupiers and thus they are not liable underOLA-Trail leaders may be liable under Negligence Act- Leaders would be expected to exercise the skill and judgement of acompetent leader, including assessing participants' skills and experience,choosing suitable trails, warning of known hazards, and acting to preventforeseeable accidents

Ian Attridge – 1999, 2002, 2008

Trail Leaders

Blondeau v. City of Peterborough (1998)- Court held arena mostly liable but the skating club and coaches were 25%

liable due to their control over use of the ice and awareness of pastproblems.

Smith v. Horizon Aero Sports (1981)- Court found instructor liable but not the Canadian Sport Parachuting- Association, the sport's governing and training body. Court recognized lower

duty of care in order to encourage volunteer organizations.

Ian Attridge – 1999, 2002, 2008

0 200 400 600 800 1000

Ontario Trails Inventory

4X4

Downhill SkiIce ClimbingDog Sledding

ATVRock Climbing

MotorcyclingSnowmobiling

EquestrianCyclingRunning

CampingCross-country

Cycling Off-RoadCanoe

SnowshoeHiking

N u m b e r o f Trails

0 2000 4000 6000 8000 10000 12000 14000 16000

4X4Downhill SkiIce Climbing

DogATVRock

MotorcyclingSnowm obilingi

EquestrianCycling

RunningCam pingX-country

Cycling Off-Canoe

SnowshoeHiking

Kilometers by Use

0 100 200 300 400 500 600

CentralSouth Western

EasternGTA

North EasternNorth Central

NiagaraOttawa

Number

Series1 32 58 171 171 190 248 401 538

Ottawa Niagara NorthCentral

NorthEastern

GTA Eastern SouthWestern

Central

0 5000 10000 15000 20000 25000

Kilometers of Trail Use Opportunity by Region

Ottawa

GTA

Niagara

East

Central

North Central

North Eastern

North Western

South Western

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

Trails and New Awareness – OTC Safe Trails Manual 2007

Trail built & maintained to a standard

System of Inspection

System of Maintenance

Signage/Barriers

Training of Volunteers

Contracts with Landowners/Permits

Accident/Incident Reports

Photos and Suggestions Cowan Insurance, OTC May 2007

11/13/10

Acknowledgements

The OTC wishes to fully acknowledge the work of Ian Attridge LLB asforming content of this presentation. Mr. Attridge has produced severalpapers on the subject of trail liability and risk on behalf of the OTC and forthe Ontario government. Copies of these reports are available from OTC.

Ms. Barb Szycta , of Cowan Insurance Ltd. provided photos to OTC duringa presentation to the Ontario Trails Conference in 2007.