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April 1, 2019

Building mountain bike trails can be risky business

Be conscious about accepting liability

Scott Chapin

In the last 10 years, I have worked with hundreds of mountain bike trail building organizations, both volunteer and professional, helping write properly written commercial insurance coverage. We had written a master program for IMBA’s clubs/chapters which needed to be tailored for the unique exposures associated with building and maintaining trails.  

What makes the liability exposures unique? First, the trails are primarily built on public land and used by the general public. Obviously, there could be tighter risk management controls if a trail building organization owned the trails and only allowed its members to use the trails. They could, at least, have the members sign a release of liability, which could help in the event of a lawsuit.    

I often get asked what types of claims/lawsuits we see against trail building organizations. Many feel the recreational use statutes provide protection against these suits. The recreational use statutes protect the landowner/land manager, but do not prevent suits against the trail building/maintenance organizations.

Many of the claims we see are directly tied to technical trail features. Often, an injured party will allege that they were not properly warned of the “dangerous” trail features, such as a berm, rocks or drops. We have seen claims paid for in this exact scenario. The claimant’s generally allege that the feature posed a risk to riders, and if there is ANYTHING wrong with the feature, this escalates the liability. An example of this would be a bridge plank coming loose or features designed improperly.    

Large Claims
Some of the larger claims we have seen have nothing to do with the act of bicycling. There have been several claims where a pedestrian tripped over a technical trail feature. Obviously, those are a bit unusual, but premises liability claims can be much larger than expected. Many of the claims we have seen are in the $10,000 range, but others are over $500,000.    

What can be done to prevent these types of claims?  Often the claims happen long after the trail or technical trail feature was built. Many are due to improper maintenance of the trail/features. If the land manager requires the trail building organization to maintain the trails, they should have a systematic maintenance log for the trails and, especially, the technical trail features.

As a general rule IMBA recommends non-governmental organizations avoid stating they are responsible for “maintaining, operating or managing” trails. It is fine to assist, but unwise to accept responsibility for things that you do not have control over.  

Proper signage is another way to prevent claims. In some areas the land manager/trail building organization feel putting warning signs before every technical trail feature helps reduce risk.  

Many trails that are very technical contain a “filter,” which is atypical feature at the start of the trail as a reference of what the remainder of the trail will be like.

Some land managers want to shift 100 percent of the liability to the trail building organization. Land managers’ legal counsel often encourage shifting as much of the liability to other entities. They do this contractually with a user agreement, memorandum of understanding, etc.  According to Rich Edwards, Director of Construction & Operations for Trail Solutions a division of the International Mountain Bicycling Association, IMBA recommends the managing agency bear the liability for operating public recreational trails and that reducing risk for the partnership trail advocacy group is in all parties’ interest. He contends that it is unreasonable to push liability to a non-governmental volunteer organization as they do not have any control over the land the trails are on. If the trails were affected by a rainstorm/windstorm or land management operations, they are not in the position to close them to prevent damage, yet they are responsible for maintenance liabilities. He also says there are many trail advocacy groups that have entered into agreements that are lopsided from a liability standpoint.  

Other methods to reduce liability claims

Appropriate signage is one way to reduce risk. Having a very detailed description of the trail system and specific trail is as important as having “difficulty rating.” The issue is the relative subjectivity of the trail difficulty ratings. A blue trail in the Pacific NW, is likely much more technical and difficult to a rider who is used to riding upper Midwest trails. The spectrum of Blue (intermediate) trails is very large. This is why the detailed description at the trailhead is important.  

Unfortunately, the signage is not “one size fits all,” as certain states may feel describing how dangerous a trail is could be an “admission” that the trail is unsafe.  He cited a sign in Florida at a local bike park that says “The decisions you make determine whether you ride, walk or get carried out of here.” That language may work in one state, but may backfire in another. He mentioned that in many locations, the public is also unaware of the risks created by just being in unbuilt open space. The natural landscape contains a variety of threats from terrain, animals, dangerous plants, multiple disease vectors, weather, lighting, overhead impacts and more. All natural areas are dangerous and some much more than others. Visitors to a trail in these locations should be aware of the risks they are undertaking.

Personally, I believe the best way to reduce the risk of claims is to do a thorough review of their MOU/Contract with the various land managers. Obviously, this is much easier to do on the “front end,” versus after the agreement has been signed.  Most clubs have long standing MOU’s that may be difficult to change after the fact. If a trail advocacy group cannot get out of the MOU/contract, they really need to concentrate on systematic maintenance of the existing trails and technical trail features, as well as crafting the proper signage at their trailheads, concentrating on words to “avoid” to help limit liability.