Download - 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.