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Risk & Liability. Risks from wildlife & plants Mammals Mammals Snakes Snakes Insects Insects Fish Fish Plants Plants.

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Presentation on theme: "Risk & Liability. Risks from wildlife & plants Mammals Mammals Snakes Snakes Insects Insects Fish Fish Plants Plants."— Presentation transcript:

1 Risk & Liability

2 Risks from wildlife & plants Mammals Mammals Snakes Snakes Insects Insects Fish Fish Plants Plants

3 Activity-related risks Dangerous terrain/water Dangerous terrain/water Faulty equipment Faulty equipment Climate-related factors Climate-related factors Lack of experience or training Lack of experience or training Inherent dangers of activity (assumed risk) Inherent dangers of activity (assumed risk)

4 Risks from other individuals Conflicts between users Conflicts between users Contamination of natural resources Contamination of natural resources Criminal activities Criminal activities

5 Negligence & Liability Negligence Negligence The failure to implement reasonable precautions. The failure to implement reasonable precautions. Can be through either omission or providing incorrect information. Can be through either omission or providing incorrect information.

6 Negligence & Liability Liability Liability Being responsible for a negligent act Being responsible for a negligent act

7 Tort laws vs. criminal laws Tort laws Tort laws Civil wrongs such as negligence & trespass Civil wrongs such as negligence & trespass Prosecution by plaintiff Prosecution by plaintiff More than 50% of evidence must support plaintiff’s claim More than 50% of evidence must support plaintiff’s claim Criminal laws Criminal wrongs Prosecution by law enforcement officials Proof beyond a reasonable doubt required

8 Who can be sued? Private land owners Private land owners Commercial land owners Commercial land owners Business owners Business owners Public agencies (sovereign immunity) Public agencies (sovereign immunity)Anyone!!

9 Proving 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 provided incorrect information. Defendant committed act of omission or provided incorrect information. Harm done was directly related to defendant’s breach of duty. Harm done was directly related to defendant’s breach of duty.

10 Types of Users Trespasser Trespasser Licensee Licensee Invitee Invitee

11 Trespasser Person enters property without permission from the owner. Person enters property without permission from the owner. Owner may be liable if: Owner may be liable if: harm to trespasser is done maliciously harm to trespasser is done maliciously owner willfully did not eliminate known hazards owner willfully did not eliminate known hazards Trespasser can be evicted using “reasonable force.” Trespasser can be evicted using “reasonable force.”

12 Licensee Person has permission from land owner to use property but does not pay for use. Person has permission from land owner to use property but does not pay for use. Owner must warn user of known hazards. Owner must warn user of known hazards. User assumes the risk for accidents inherent to that activity. User assumes the risk for accidents inherent to that activity.

13 Invitee Person pays a fee to use property. Person pays a fee to use property. Applies to many recreation businesses. Applies to many recreation businesses. Manager must warn invitee of all hazards & risks. Manager must warn invitee of all hazards & risks. Manager must eliminate all hazards & risks. Manager must eliminate all hazards & risks.

14 Landowner responsibilities (trespassers & licensees) NYS General Obligation Law Sec NYS General Obligation Law Sec Landowner has no duty to keep property safe for following uses: Landowner has no duty to keep property safe for following uses: HuntingTrapping Fishing Sledding CanoeingBoating TrappingHiking Cross-country skiingCaving BikingHorseback riding ATV & snowmobile useHang gliding GleaningDog training

15 Landowner responsibilities (trespassers & licensees) NYS General Obligation Law Sec (continued) NYS General Obligation Law Sec (continued) Not applicable to backyards & paved areas. Not applicable to backyards & paved areas. Landowner may be liable for willful or malicious failure to guard against a dangerous condition. Landowner may be liable for willful or malicious failure to guard against a dangerous condition. Applies to both posted and unposted properties. Applies to both posted and unposted properties.

16 So why post then?? Posting enables the landowner to prosecute trespassers in court. Posting enables the landowner to prosecute trespassers in court.

17 Posted vs. unposted property Posted or fenced property: Posted or fenced property: User is required to ask for permission to use property. User is required to ask for permission to use property. User is a trespasser as soon as he/she enters property User is a trespasser as soon as he/she enters property Unposted property: User does not legally have to ask permission. User must leave upon landowner’s request.

18 Posting property in New York 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 apart along property boundary. Signs must be posted no more than 660 feet apart along property boundary. One sign must be posted on each corner, and along each boundary side. One sign must be posted on each corner, and 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.

19 Negligent situations (Invitees) Imprudence of manager (reasonable person test) Imprudence of manager (reasonable person test) Negligence of employees Negligence of employees Poor facility design Poor facility design Lack of hazard warnings Lack of hazard warnings Third person liability Third person liability Faulty equipment Faulty equipment Attractive nuisance Attractive nuisance

20 Attractive nuisance (trespassers, licensees, & invitees) A human-made object that attracts and is potentially dangerous to children. A human-made object that attracts and is potentially dangerous to children. Tree house vs. tree Tree house vs. tree Attractive nuisance must be properly sealed or concealed. Attractive nuisance must be properly sealed or concealed. Injury must be sustained from the attractive nuisance itself Injury must be sustained from the attractive nuisance itself Pool vs. fence surrounding pool Pool vs. fence surrounding pool

21 Third party liability (Invitees) One invitee harms another invitee but the landowner is sued. One invitee harms another invitee but the landowner is sued. Landowner is liable if a prudent manager could have prevented the harm. Landowner is liable if a prudent manager could have prevented the harm.

22 Faulty equipment Stolen equipment Borrowed equipment Rented equipment Trespassing Licensee Invitee Similarities in liability

23 Protection from liability Employee safety training Employee safety training Careful visitor management Careful visitor management Hazard warnings Hazard warnings Scheduled repair & maintenance Scheduled repair & maintenance Proper fitting & use of equipment Proper fitting & use of equipment Free admission Free admission Incorporation Incorporation Risk analysis Risk analysis Liability release forms (disclaimers) Liability release forms (disclaimers)

24 Disclaimers An invitee agrees to take responsibility for his/her own actions when manager states what the risks are. An invitee agrees to take responsibility for his/her own actions when manager states what the risks are. Does not always hold up in court. Does not always hold up in court.

25 Conducting a risk analysis Visually inspect recreational facilities & property. Visually inspect recreational facilities & property. Identify risks associated with recreational activities. Identify risks associated with recreational activities. Identify safety measures and regulations already in place. Identify safety measures and regulations already 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.

26 Risk management plan Includes: Name of person in charge of safety Name of person in charge of safety Existing rules Existing rules Schedule for systematic inspections Schedule for systematic inspections Procedure for reporting and responding to emergencies Procedure for reporting and responding to emergencies Assessment of insurance coverage Assessment of insurance coverage

27 Any questions?


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