Safe Trails for Tourism Excellence

Trail Safety

Prepared and Presented

by Patrick Connor CAE March 1, 2013

Introduction Provide an overview to trail safety Laws, regulations and liability Components – risk management Understanding of risk and management of issues to avoid lawsuits

The Safest Trail Most safe: single use, private land, riders or users trained to expert level on the equipment, excellent physical health, great weather (extended), no bugs, no animals, no fences, single direction, no crossings, no other traffic or intersections, bridges are maintained, regular maintnenance, right of ways clear cut, telephone and emergency services every kilometer, great sight lines, ample clearances (360), moderate undulations, washrooms, clear surface, washrooms, first aid access, put outs, no embankments, slopes, grades, rain, deadfalls or bollards, nurse in 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? Are they 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 on penalty Court costs – lawyers, damages, injury Joint and several liability – if you are involved you 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 contamination Water – environmental, building considerations Use - Nuisances (noise, activity) User – Skill, training, etiquette Operators - Actions by directors, staff and volunteers Operators/Builders - Occupational health and safety Operators/Builders - Employment, taxes, fencing Owner/Operators - Occupier's liability for visitors' injuries Owner/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 the premises, 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 her property and to not act with reckless disregard of the presence of the person or his or her property.

Ian Attridge â&#x20AC;&#x201C; 1999, 2002, 2008

Trail: Occupiers versus Owners Duty of Care -Liability does not depend on ownership, but on one or more who are in physical possession, or who have control over and responsibility for the property'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 the condition of the area (even though it had attempted to groom it) and the Club had no power to admit or exclude entry.

Ian Attridge â&#x20AC;&#x201C; 1999, 2002, 2008

Trails And Reduced Duty of Care A person is deemed to willingly assume all risks and is subject to the reduced duty 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 when not open for play, utility corridors, unopened road allowances, marked private roads, and recreational trails reasonably marked by notice as such Ian Attridge â&#x20AC;&#x201C; 1999, 2002, 2008

Trail Liability Laws -Off-Road Vehicles Act - section 20 Every 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 does not provide accommodation].

- Motorized Snow Vehicles Act - section 22 Almost identical wording to Off-Road Vehicles Act Similar standards in Nova Scotia's and P.E.I.'s Trails Act, and B.C.'s Occupier=s Liability Act Ian Attridge â&#x20AC;&#x201C; 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 require special 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 obvious trap with reckless disregard of snowmobilers' presence Ian Attridge â&#x20AC;&#x201C; 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 rocks outside 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 in paved 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 under OLA -Trail leaders may be liable under Negligence Act - Leaders would be expected to exercise the skill and judgement of a competent leader, including assessing participants' skills and experience, choosing suitable trails, warning of known hazards, and acting to prevent foreseeable accidents Ian Attridge â&#x20AC;&#x201C; 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 past problems.

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 â&#x20AC;&#x201C; 1999, 2002, 2008

Ontario Trails Inventory 4X4 Downhill Ski Ice Climbing Dog Sledding ATV Rock Climbing Motorcycling Snowmobiling Equestrian Cycling Running Camping Cross-country Cycling Off-Road Canoe Snowshoe Hiking

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N u m b e r o f Trails

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4X4 Downhill Ski Ice Climbing Dog ATV Rock Motorcycling Snowm obilingi Equestrian Cycling Running Cam ping X-country Cycling OffCanoe Snowshoe Hiking

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Kilometers by Use

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Central South Western Eastern GTA North Eastern North Central Niagara Ottawa 0

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100 Ottawa

Niagara

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58

200 North Central 171

300 North Eastern 171 Number

400 GTA

Eastern

190

248

500 South Western 401

600 Central 538

Kilometers of Trail Use Opportunity by Region Ottawa GTA Niagara East Central North Central North Eastern North Western South Western 0

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Trails and New Awareness â&#x20AC;&#x201C; 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

Acknowledgements The OTC wishes to fully acknowledge the work of Ian Attridge LLB as forming content of this presentation. Mr. Attridge has produced several papers on the subject of trail liability and risk on behalf of the OTC and for the Ontario government. Copies of these reports are available from OTC. Ms. Barb Szycta , of Cowan Insurance Ltd. provided photos to OTC during a presentation to the Ontario Trails Conference in 2007.

11/13/10