Personal riding area liability issues

[Monkey Butt]

I recently purchased some land to use for riding. I've been advised that I should strongly consider making everyone who rides there sign a waiver of sorts releasing me from liability. The only people who will be riding there will be myself, my wife and a few close riding buddies. Of course that is assuming that I can control the trespassers.

I'm not concerned with any of my friends sueing me, but I have had others worn me that often times insurance companies force people into sueing the property owner. Faced with that sad reality, I need to acquire a form that will release me and my wife from liability. I know that the form may not be an absolute fix, but I guess it is better than nothing.

Does anyone have a form already made that I can utilize. I was hoping that Wardy or AJWaggoner might be able to help out here.

Thanks,
MB

 

[mx547]

you cannot be released from liability. if you are deemed negligent, you are liable. a person can't sign away his rights.

but get the waiver anyway.

 

[MDA]

I'm no lawyer, but neglience is when you fail to take reasonable precautions against anything that might injure someone using your property (i.e. not removing ice from your front steps in the winter).

I would suggest that as far as trespassers are concerned, that you post signs saying that it is private property and that tresspassers are not allowed. Its a shame this kind of thing has to be done these days. This is probably one reason why our riding areas are shrinking.

-Mark-

 

[01HondaCR]

Also you might want to make a couple ride at your own risk signs. Our local race track has quite a few of those spread throughout the place.

 

[Jon K.]

Form an LLC (it really is not hard) and have the Corporation lease the land (for a buck or two) from you. That step alone will give the lawyers enough headaches that they should look for easier prey.

 

[Erick82]

Have everyone sign waivers, no matter how close of a friend they are. If they are not imdiate family, they must sign. Also, post no trespassing signs. Your friends insurance company will sue you for thier injuries if they think you are neglagent in any way, it is call suborgation (sp) and is standard practice in most insurance policies, so if your friend does get hurt make sure and have them make up a good story about how they fell down their stairs or something.

 

[jmics19067]

Get a lawyer! every state is different when it comes to insurance laws and practices<except for trying to screw someone>. If you have the money to be able to buy land for a track it shouldnt be too hard to come up with the cash to hire a lawyer. It will be cheap insurance to know your rights and responsibilties as the land owner before something may happen.
Where I used to work they had a fenced in parking area for trucks with a yard dog, no trespassing signs , beware of dog signs the whole bit. The company was held accountable for the injuries sustained to a person <who wasn't supposed to be in the yard> when the dog was doing its job.

 

[CaptainObvious]

I let friends and their kids ride on my property. Here are the eight simple rules to ride at my house...

- No one rides the track without walking it with me for the first time;
- Everyone walks the track before the first ride of the day;
- The track is one direction for the entire day;
- No cutting corners, ride the entire track;
- No child will ride without a parent at my house or on the track;
- Ride to the best of your abilities, never beyond;
- Break any of my rules and you're gone;
- Have Fun!

Can I still be sued? Of course. You can be sued for anything at anytime, regardless of negligence. All of the kids that ride at my house have parents that grew-up riding and understand that riding is dangerous and people will get hurt. To like minded people, that is an acceptable risk.

 

[Monkey Butt]

Thanks for all of the advice!

I am currently looking into liability insurance and have aquired a liability realease form from another local riding club. I am considering starting a corporation, but I don't know that I want to go that far with it. No tresspassing signs will be posted every where, but I think the key is insurance. Hopefully, it won't cost me an arm and a leg. Things are never simple these days.

 

[wardy]

Hey where are you at? there is insurance out there but it is very high. If you make it a club you can maybe get some cheaper, but cheaper is like from 20k to 5k? E mail me i have done alot of research and have alot of phone numbers.... wardy@megacross.com

always do waivers for everyone. all the time. the most important thing that insurance companys asked me was about the supervision and care taken in signing people up!! of course property supervision is key, but the trick is the paperwork.

If you have some one that doesn't comply with your wishes they have to leave immeadiatly, since that will likely be your first legal problem if they get hurt.

tresspassing has to be dealt with legally, if they are on the property and they get hurt, and they are not there with permission, you actually have to have them ticketed even if that means in the hospital, thats crappy but I have seen a place do that before.

Signs should be posted with your rules.

incorporate of course, simply since you don't want to lose your house.

wardy

i have all kinds of waivers and the one that works for you is the one your lawyer and you make work to fit your exposure.

 

[sigar]

Wardy,

Thanks for the info. I'd like to tag along here with my own question. I've thought of opening up a track here in CA for some time now. If you don't mind me asking, the insurance premiums you referenced above, what type of liability limits do those offer? $1MM, $2MM, $5MM??? Thanks. Do have an insurance broker or carrier you can recommend? You can PM me with the response. Thank you very much.

 

[ML536]

Talk to a lawyer who does premises liability work. As people have said, every state's laws are different. You need state specific advice.

Still, in general, do have everyone sign waivers. They are often effective.

Also, don't charge anything to ride. The reason is that the duty that you owe to a person on your land depends on why they are on your land. Depending on the reason, they will be legally characterized as an "invitee", a "licensee" or a trespasser.

If you charge an admission fee, they are charaterized as a "business invitee". You owe the highest duty to a business invitee to protect them from all known dangerous conditions known to you, as well as for those dangerous conditions that would be revealed during a reasonable inspection. In other words, if you charge an admission, it is easy for you to be sued.

As to trespassers, you generally owe them no duty, other than to protect them against known, manmade deathtraps. In other words, an open mineshaft, etc. As to children, though, the duty may be different if you have an "attractive nuisance" on your land.

In some states, like Pennsylvania, there are laws on the books to protect landowners who open up their land for recreational activities, as long as no fee is charged for admission. These laws do not protect against man made structures like train trestles, dams, etc. I do not know whether a man made jump would qualify or not.

These issues are complicated, and depend on your states' laws. An hour or two with a premises liability lawyer in your state would be well worth your money.

 

[lawman]

best advice out of all of the above: get a lawyer, who is licensed in your state, to give you some advice. it would be well worth the few (ok, relatively few) bucks it would cost you. some of the rest of you guys should stick to what you know!

 

[sigar]

Originally posted by lawman
some of the rest of you guys should stick to what you know!

But we don't know ANYTHING, that's no fun. :)

 

[Monkey Butt]

Lawman,

I'm sure you are correct. The hard part is finding a good one. I did talked to one lawyer briefly, who was no help at all. Among other things, he basically told me that most people wouldn't put themselves in a position of possible liability without the benefit of income. This guy had a real attitude and I came away from the conversation feeling insulted and basically on my own. He missed the point that I am buying this place and that there will be other people riding there, whether he agrees with it or not. I know I should probably consult another one, but I don't know who to trust.

 

[jmics19067]

No Offense Monket butt,

but not him. it is rather painfuly obvious that money was his main concern and he probably is the type of lawyer that will sue you if somone tripped on you sidwalk. He was most likely in some type of internal conflict because you where going to hire him to protect you from himself :confused:

To heck with that one and move on. maybe ask a realtor who is a good lawyer to protect when you buy the property and if he is not sure of whats going on maybe he can refer you to someone who will help you protect your property. Or ask a criminl lawyer for some type of referral but I would start of asking somebody who is in thebusiness of protecting people.

 

[Jon K.]

Originally posted by lawman
some of the rest of you guys should stick to what you know!

Lawman; what is your take on the LLC?

 

[lawman]

jon, i am not sure i would bother with it. in my state, there is a rec. use statute that covers this such that the owner is not liable for use by people w/permission, even for man-made stuff, as long as he doesn't charge a fee (& isn't "grossly negligent", which is almost tantamount to intentionally trying to cause harm). waivers are also VERY effective here. we also have very strong law on the plaintiff's own comparative fault. so for my state, at least, i don't think i'd go to the trouble & expense of setting up an llc, registering it, paying the fees & taxes, filing the annual reports, & all of that.

i think the most important part of the whole thing is to have an effective waiver form & make sure EVERYBODY signs it, particularly parents/guardians of minors. my nightmare scenario is a kid who gets a lift to a riding area or race with a neighbor, no waiver is signed by a parent, kid gets hurt, insurance claim is filed, & insurance co. sues for subrogation to recover the $ it paid out.

monkey butt: unfortunately you are correct, it is just like anything else, this may be a service economy, but service still can stink. the trick is to find the right 1. i'd keep looking, somebody will be interested in it.

 

[Jon K.]

In my case (an ATV dragstrip) and in my state; the LLC proved to be quite effective. I had a guy that walked out in front of the start line and got ran over. Hurt his knee.

He had a lawyer sniffing around; but as soon as the lawyer realized that I had the LLC; and the property was leased to the LLC; and all the assets of the racetrack were owned by the LLC, and the LLC was broke :p; he went away.

We do also have everyone who comes through the GATE sign a waiver, as well as all the competitors, parents, minor release forms, yada yada yada. Some people feel that a waiver has value, others don't. The AMA believes in waivers.

Insurance was not available at any cost. LLC was cheap; maybe $200.00.

 

[lawman]

jon,

i'm glad it worked out for you! the problem with an undercapitalized llc is that if somebody is hurt bad enough to make it worthwhile, there could be an attempt to do what is called "piercing the corporate veil".

i'm with the ama, i believe in waivers. in my state, the waiver + the guy's own comparative fault (what a dumb***) would have got you there. so you are right, this is a good illustration of the differences in situations & states' laws, which is why i say the best thing to do is to get a local lawyer who is interested in it to give some advice.

 

[ML536]

I agree with everything that Lawman has said.

One additional point regarding subrogation cases - A "subrogation" case describes the following scenario: A person who has insurance suffers a loss that is paid by their insurance carrier. The insurance carrier pays the person. The insurance carrier feels that the loss may be someone elses' fault, so they file suit in the name of their insured person to recover the money that they paid on the claim. If their insured does not participate in the claim, then they usually can threaten, under the terms of the insurance contract, to force that the insurance money be returned.

For example, a rider is riding on his friend's land. The rider suffers an injury on the land. The rider's bills are paid by his insurance company. The insurance company believes that the rider may have a valid claim against the landowner. The insurance company then files a claim in the rider's name against the landowner to recover for the medical bills that it had to pay to its insured, the rider. This is an oversimplification, but I hope that you get the idea.

Because the insurance company is suing in the name of their insured, the lawsuit does not have the outward appearance that it is the insurance company, and not the insured, that are driving the case. Some companies sue more frequently than others, but some of them are very aggressive in filing these suits.

The point - Even if you only allow your friends to ride, and you think that they would never sue you, their insurance company may force them to do so. Make everyone sign a waiver!

 

[lawman]

thanks, ML, that is a better explanation of subrogation than mine--sometimes it's easy to forget that not everyone deals with these terms every day. to us, they are 2d nature.

 

[Monkey Butt]

Guys you have been a great help. I was looking into the LLC, but I didn't really want to go there. LTM Offroad in Casey, IL told me to turn the place into a club. They said that club members can't sue the club for some reason. My concern then would be that I might have a more difficult time getting liability insurance on the ground since it would be an off road bike club. As it stands now I am checking into adding the land to my home owners policy. At least I would have some liabity insurance.

I will definately do the waiver thing as well. I figure if I use the form LTM gave me that it should suffice. I will just change the wording a little to suit my needs.

A scary thing happened to me yesterday. I got a phone call from my health insurance regarding an accident claim. I wrecked a couple of months ago and broke my scapula. They wanted to know if I was participating in a competitive race and if I have insurance on my bike. In other words they were looking for someone else to pin the bills on. This really opened my eyes, and I can see how quickly things can go bad!

 

[BRush]

Most carriers hand off any claims to a subrogation specialist firm. It works like this, once a month or once a quarter, your insurance company does a data dump to the subrogation firm that contains all claims data. The subrogator scans the codes that indicate the type of claim. Any motor vehicle accident (auto, dirtbike, atv) is one of the flags. If they think it’s worthwhile, they will then sue and keep 30 cents on the dollar of whatever they collect. So the incentive is high and it’s like found money to the insurance carrier.

Their behavior is very much like a debt collection agency. About 3-6 months after the claim, you (the insured) receive a strongly worded letter that your insurance company needs you to CALL THIS NUMBER IMMEDIATELY! and provide full details of the accident. The phone number is the subrogator's, not your carriers – but the letter will be vague about that. Any hesitation results in more letters of increasing stridency and thinly veiled legal threats for non-compliance.

How do I know all this? I borrowed a friend’s bike and was riding on state forest land and crashed due to my own dumb fault. Stupidly, I put “off-road motorcycle accident” down on the insurance form. In my case they were not successful in going after my buddy, but they easily might have been. Something to keep in mind next time you have to visit the ER.

 

[ML536]

Glad to have been of help. Remember, though, the laws vary from state to state. Plus, every situation is unique. Nothing can substitute from getting advice from a lawyer in your state that knows all of the facts and circumstances of your situation.

Look for someone that does "premises liability" work. This means liability relating to the possession of land. Just like anyone, lawyers will have areas of expertise based upon their experience. Just like you would not go to a dermatologist for a heart condition, make sure that the lawyer knows the area of law.

So, to summarize:

1. Discuss your situation with a knowledgable lawyer;
2. Make everyone sign waivers;
3. Do not charge to ride on your land.