Risky Business: Liability Is Serious Threat To Mountain Bike Parks

BOULDER, CO—“It depends.” That’s the answer you’ll receive most of time when asking specific questions regarding mountain biking risk management and liability.

“Liability and risk management are challenging topics faced by trail managers today,” said Pete Webber, special projects director for the International Mountain Biking Association. “And they loom as concerns that could result in catastrophe if mismanaged.”

It’s difficult to make generalizations when talking about this subject, namely because state laws differ, and because “it depends” on the circumstances leading to a lawsuit, according to California attorney Steven W. Hansen, who specializes in premises liability defenses and is also an avid cyclist.

Did the injury take place on public or private land? Was it an invitee or trespasser who got injured? Is it a natural surface or man-made with freeride features? Is it an adult or minor involved?

IMBA has taken a lead role in addressing risk management and liability issues. Webber gave a keynote speech on the subject at the IMBA Summit/World Mountain Bike Conference in June in Whistler, British Columbia. And early next year, IMBA will release a book entitled “Managing Mountain Biking: IMBA’s Guide to Recreation Strategies and Solutions” that will address some of these important issues.

“Unfortunately, risk management is too often driven by the fear of lawsuits,” Webber said. “It should also be about providing an enjoyable riding experience.”

Lawsuits on the Rise. When Webber gave his speech along with Algonquin College’s Jeff Jackson—who heads up the college’s outdoor adventure program—they talked about the 2004 lawsuit filed against Snow Summit Mountain Resort in Big Bear Lake, California, Team Big Bear and USA Cycling.

NORBA racer Brian Spillane filed the lawsuit when he fell from his bike suffering a permanent back injury at a 2004 race. Although the $25 million lawsuit was dismissed this past March, the ripple effects have been lasting for Big Bear.

The resort decided not to be involved in the NORBA national series anymore and downhill racing was removed from Team Big Bear’s local race schedule last summer.

Bigger than that, perhaps, is the fact that mountain biking doesn’t take place on Big Bear Mountain Resorts’ property anymore, according to Big Bear’s risk manager Steve Hanft. “[The lawsuit] forced us into a business decision,” Hanft said.

The profits weren’t worth the risk, he added. The decision allows riders to use Big Bear’s ski lifts to get to the top of the mountain—from there, however, cyclists are riding on U.S. forest service roads, according to Hanft.

The number of civil cases filed in U.S. District Courts more than doubled from 1980 to 2000, climbing from 113,000 to more than 259,000, according to IMBA. Despite this depressing trend, Webber believes there’s an opportunity for better and safer trails to come as a result.

“Liability concerns have the potential side benefit of improving trail design and management practices, benefiting the environment and the trail experience,” he said.

Webber said not many lawsuits—open or closed—are related to mountain biking and trails. “They aren’t very common,” he said. “The few that have advanced to trial in court have not had any measurable nationwide effect.” He said effects of these cases are usually felt locally, such as in the case of Big Bear.

Increasing negligence lawsuits in general—not any one cycling case—play a larger role, according to Webber. “The fear of lawsuits causes bike park entrepreneurs to be wary, but liability is only one of many factors that go into their decision to get into the field,” he said.

Webber doesn’t believe lawsuits dictate how a bike park grows or doesn’t grow. “The bike parks that are thriving have invested in top-quality trails and facilities, backed with a savvy business plan,” he said. “I think a key factor that drives bike park success is the quality of riding experience. There must be purpose-built all-weather trails designed and constructed by experienced professionals. Bike parks at ski resorts are doomed if they only offer ski trails, gravel service roads and eroded singletrack.”

Insurance, Signs Provide Safeguards. Like IMBA, Bicycle Trails Coalition of the East Bay in Northern California takes risk management seriously. The second oldest advocacy group in the United States has been repairing and maintaining East Bay trails for 17 years.

“We’ve never had a lawsuit filed against us,” said Eric Muhler, president of BTCEB.

One lawsuit protection BTCEB has is through the IMBA Club Insurance Program. IMBA-affiliated clubs in the United States and Canada are eligible to purchase a special mountain biking club insurance policy from McKay Insurance of Iowa. The policy insures clubs for liability arising from events like club rides, meetings, trail maintenance, trail patrols and much more.

Beyond insurance coverage, BTCEB tries to be proactive to stay out of legal trouble. “We teach the basics to our young riders—those just starting out,” Muhler said. “We’ve also made alliances with the different groups that use the trails too,” like horseback riders and hikers.

The most common lawsuits trail managers face are related to negligence, according to Webber. These lawsuits are based on the injured visitor claiming that a trail manager failed to design, construct, manage or maintain the trail with reasonable and prudent care, Webber said.

One important lawsuit safeguard for landowners is to have proper signage on their property, whether it be to describe the trail’s difficulty or “Private Property No Trespassing” signs. Proper signage can go a long way in avoiding and winning lawsuits, Hansen said.

Whistler’s vice president of business development Rob McSkimming agrees on the importance of signage. Not only does Whistler have trailhead signs, but the park also has signs at the base of the mountain alerting riders on what they can expect once they reach the top. “We do this so they know what they’re getting into before they even get up there,” he said.

The bottom line in what direction many of these cases take, however, can ultimately revolve around money. More specifically, which party has the most money? Often times that means the manufacturer instead of the landowner, which then delves into product liability.

“Who has the deepest pockets?” Hansen said. “It’s easier for an injured person to say there’s something wrong with the bike.”

States Offer Some Protection. Recreational Use Statutes offered by all 50 states do provide some protection to landowners and managers. The Skier Safety Act also provides some liability protection to ski areas.

“Recreational Use Statutes provide a strong tool and are helping control the chilling effect of the threat of lawsuits on outdoor recreation,” Webber said. “Skier Safety Acts offer strong liability protections to ski resorts for their wintertime activities, but they don’t apply to summer sports.”

Webber said he’d like to see mountain biking legislation modeled after Skier Safety Acts. “It would certainly help boost mountain biking at fee-based bike parks,” he said.

Waivers can also offer landowners valuable lawsuit protection, but each state differs on how much protection, according to James H. Moss, a Colorado attorney specializing in recreation law.

“In California and Colorado waivers are worth their weight in gold,” he said. But in Arizona, Wisconsin and Connecticut—where state supreme court decisions have compromised waiver protection—that isn’t the case, Moss said.

“All of a sudden you can’t protect yourself,” Moss added.

Moreover, releases signed by parents of minors don’t offer the legal protection they once did, according to Hansen. “The courts don’t trust the parents,” he said.

Whistler Serves as Model. Whistler Mountain Bike Park looks to its wintertime sports model when it comes to addressing its summertime risk management strategy. McSkimming believes this model has paid dividends in terms of protecting the resort from lawsuits.

A trail rating system and the proper signage are just a few things taken from Whistler’s wintertime model. “We’re really just borrowing from our skiing symbols,” he said of the park’s trail signage.

Maybe even more important—and just as the BTCEB does—is getting kids started early to improve their riding skills, and thus, hopefully, reducing injuries. “That makes all the difference in the world,” McSkimming added.

“The risk management principles for mountain biking at ski resorts are very similar to skiing at ski resorts,” Webber added. “Whistler has identified and implemented these principles, while other resorts are still learning how to apply them in the summer.”

But while lawsuits are just a fact of life, the fear of increasing lawsuits is powerful, Algonquin College’s Jackson said, both positively and negatively.

“Whitewater rafting turned fear of litigation into very effective risk management and safety practices,” Jackson said. “Other activities have folded under such pressure.”

And while legislating protection is important, Jackson doesn’t endorse immunity. “That opens the door for recklessness,” he said.

The bottom line is simple: “What operators and clubs can do is keep their operation tight, build and maintain appropriate trails, and work to inform and build a positive riding experience,” Jackson said.

Unfortunately, this isn’t always enough, as was the case with Big Bear. “Winning a case can lead to many losses, especially when drawn to a societal level,” Jackson added.