risk & liability. risks from wildlife & plants mammals mammals snakes snakes insects insects...
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Risks from wildlife & Risks from wildlife & plantsplants
MammalsMammals SnakesSnakes InsectsInsects FishFish PlantsPlants
Activity-related risksActivity-related risks
Dangerous terrain/waterDangerous terrain/water Faulty equipmentFaulty equipment Climate-related factorsClimate-related factors Lack of experience or Lack of experience or
trainingtraining Inherent dangers of Inherent dangers of
activity (assumed risk)activity (assumed risk)
Risks from other Risks from other individualsindividuals
Conflicts between users Conflicts between users Contamination of natural resources Contamination of natural resources Criminal activitiesCriminal activities
Negligence & LiabilityNegligence & Liability
NegligenceNegligence
The failure to implement reasonable The failure to implement reasonable precautions.precautions.
Can be through either omission or Can be through either omission or providing incorrect information. providing incorrect information.
Negligence & LiabilityNegligence & Liability
LiabilityLiability
Being responsible for a negligent actBeing responsible for a negligent act
Tort laws vs. criminal lawsTort laws vs. criminal laws
Tort lawsTort laws Civil wrongs such Civil wrongs such
as negligence & as negligence & trespasstrespass
Prosecution by Prosecution by plaintiffplaintiff
More than 50% of More than 50% of evidence must evidence must support plaintiff’s support plaintiff’s claimclaim
Criminal lawsCriminal laws Criminal wrongsCriminal wrongs
Prosecution by law Prosecution by law enforcement enforcement officialsofficials
Proof beyond a Proof beyond a reasonable doubt reasonable doubt requiredrequired
Who can be sued?Who can be sued?
Private land ownersPrivate land owners Commercial land ownersCommercial land owners Business ownersBusiness owners Public agencies (sovereign Public agencies (sovereign
immunity)immunity)
Anyone!!Anyone!!
Proving negligenceProving negligence
Defendant has a responsibility to the plaintiff.Defendant has a responsibility to the plaintiff.
Plaintiff was harmed.Plaintiff was harmed.
Defendant committed act of omission or Defendant committed act of omission or provided incorrect information.provided incorrect information.
Harm done was directly related to Harm done was directly related to defendant’s breach of duty.defendant’s breach of duty.
TrespasserTrespasser
Person enters property without Person enters property without permission from the owner.permission from the owner.
Owner may be liable if:Owner may be liable if: harm to trespasser is done maliciouslyharm to trespasser is done maliciously owner willfully did not eliminate known owner willfully did not eliminate known
hazardshazards
Trespasser can be evicted using Trespasser can be evicted using “reasonable force.”“reasonable force.”
LicenseeLicensee
Person has permission from land Person has permission from land owner to use property but does owner to use property but does not pay for use.not pay for use.
Owner must warn user of Owner must warn user of knownknown hazards.hazards.
User assumes the risk for accidents User assumes the risk for accidents inherent to that activity.inherent to that activity.
InviteeInvitee
Person pays a fee to use property.Person pays a fee to use property. Applies to many recreation Applies to many recreation
businesses.businesses.
Manager must warn invitee of Manager must warn invitee of allall hazards & risks.hazards & risks.
Manager must eliminate all hazards Manager must eliminate all hazards & risks.& risks.
Landowner responsibilities Landowner responsibilities (trespassers & licensees)(trespassers & licensees)
NYS General Obligation Law Sec. 9-103NYS General Obligation Law Sec. 9-103
Landowner has no duty to keep property Landowner has no duty to keep property safe for following uses:safe for following uses:
HuntingHunting TrappingTrappingFishing Fishing SleddingSleddingCanoeingCanoeing BoatingBoatingTrappingTrapping HikingHikingCross-country skiingCross-country skiing CavingCavingBikingBiking Horseback ridingHorseback ridingATV & snowmobile useATV & snowmobile use Hang glidingHang glidingGleaningGleaning Dog trainingDog training
Landowner responsibilities Landowner responsibilities (trespassers & licensees)(trespassers & licensees) NYS General Obligation Law Sec. 9-103 NYS General Obligation Law Sec. 9-103
(continued)(continued)
Not applicable to backyards & paved Not applicable to backyards & paved areas.areas.
Landowner may be liable for willful or Landowner may be liable for willful or malicious failure to guard against a malicious failure to guard against a dangerous condition.dangerous condition.
Applies to both posted and unposted Applies to both posted and unposted properties.properties.
So why post then??So why post then??
Posting enables the landowner to Posting enables the landowner to prosecute trespassers in court.prosecute trespassers in court.
Posted vs. unposted Posted vs. unposted propertyproperty
Posted or fenced Posted or fenced propertyproperty: : User is required to User is required to
ask for permission ask for permission to use property. to use property.
User is a User is a trespasser as soon trespasser as soon as he/she enters as he/she enters propertyproperty
Unposted Unposted propertyproperty: :
User does not User does not legally have to ask legally have to ask permission.permission.
User must leave User must leave upon landowner’s upon landowner’s request.request.
Posting property in New Posting property in New YorkYork
Signs must be at least 11 inches square.Signs must be at least 11 inches square.
Signs must be posted no more than 660 feet Signs must be posted no more than 660 feet apart along property boundary.apart along property boundary.
One sign must be posted on each corner, and One sign must be posted on each corner, and along each boundary side.along each boundary side.
Sign must include owner’s name and address.Sign must include owner’s name and address.
Signs must be replaced annually.Signs must be replaced annually.
Negligent situations Negligent situations (Invitees)(Invitees)
Imprudence of manager Imprudence of manager (reasonable person test)(reasonable person test)
Negligence of employeesNegligence of employees Poor facility designPoor facility design Lack of hazard warnings Lack of hazard warnings Third person liability Third person liability Faulty equipmentFaulty equipment Attractive nuisance Attractive nuisance
Attractive nuisance Attractive nuisance (trespassers, licensees, & invitees)(trespassers, licensees, & invitees)
A A human-madehuman-made object that attracts and object that attracts and is potentially dangerous to is potentially dangerous to childrenchildren. . Tree house vs. treeTree house vs. tree
Attractive nuisance must be properly Attractive nuisance must be properly sealed or concealed.sealed or concealed.
Injury must be sustained from the Injury must be sustained from the attractive nuisance itselfattractive nuisance itself Pool vs. fence surrounding poolPool vs. fence surrounding pool
Third party liability Third party liability (Invitees)(Invitees)
One invitee harms another invitee One invitee harms another invitee but the landowner is sued.but the landowner is sued.
Landowner is liable if a prudent Landowner is liable if a prudent manager could have prevented the manager could have prevented the harm.harm.
Faulty equipmentFaulty equipment
Stolen equipmentStolen equipment
Borrowed Borrowed equipmentequipment
Rented equipmentRented equipment
TrespassingTrespassing
LicenseeLicensee
InviteeInvitee
Similarities in liabilitySimilarities in liability
Protection from liabilityProtection from liability
Employee safety trainingEmployee safety training Careful visitor managementCareful visitor management Hazard warningsHazard warnings Scheduled repair & maintenanceScheduled repair & maintenance Proper fitting & use of equipmentProper fitting & use of equipment Free admissionFree admission IncorporationIncorporation Risk analysisRisk analysis Liability release forms (disclaimers)Liability release forms (disclaimers)
DisclaimersDisclaimers
An invitee agrees to take An invitee agrees to take responsibility for his/her own responsibility for his/her own actions when manager states what actions when manager states what the risks are.the risks are.
Does not always hold up in court.Does not always hold up in court.
Conducting a risk analysisConducting a risk analysis
Visually inspect recreational facilities & property. Visually inspect recreational facilities & property.
Identify risks associated with recreational Identify risks associated with recreational activities.activities.
Identify safety measures and regulations already Identify safety measures and regulations already in place.in place.
Identify level of insurance coverage.Identify level of insurance coverage.
Assess risks vs. benefits for permitted activities.Assess risks vs. benefits for permitted activities.
Risk management planRisk management plan
Includes:Includes: Name of person in charge of safetyName of person in charge of safety
Existing rulesExisting rules
Schedule for systematic inspectionsSchedule for systematic inspections
Procedure for reporting and responding to Procedure for reporting and responding to emergenciesemergencies
Assessment of insurance coverageAssessment of insurance coverage