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Risk management and insurance takes planning

Managing the risks associated with multi-use trails can create some unique challenges;
From the Fall 2005 issue of Trail Tracks, the magazine of American Trails

By Doug Wyseman

"There are definitely errors being committed in efforts to transfer the risks from landowners to trail user groups."

The importance of trail systems is obvious. Whether it be aging baby boomers turning to biking or strolling along city trails, or ATVs and snowmobiles carrying their owners to experience the joy of the great outdoors, trail systems have been increasingly important to recreation across North America.

Managing the risks associated with multi-use trails can create some unique challenges for municipalities, private land owners, and trail users groups. There appears to be much confusion and misunderstanding regarding many of the liabilities associated with trails, and there are definitely errors being committed in efforts to transfer the risks from landowners (public and private) to trail user groups.

In the mid 1980's many insurers ended their involvement with the municipal insurance business. A key reason was a judgment coming from a court dealing with injuries suffered by a boy on a "dirt bike" riding on a municipally owned trail.

In that accident a young man suffered serious permanent injuries when his dirt bike collided with another occupant of the trail. The trail was located by a gravel pit and was owned by a municipality. The court felt that the municipality knew or ought to have known that this dangerous practice was taking place, on their land, and therefore, had an obligation to provide a safe environment for the activity.... or stop the activity. Damages of $6 million were awarded.

If you were to mention trail liability to many insurance underwriters, they would be quick to associate the above case with any thought of trails passing through municipal lands. Few would know that the judgment was tremendously reduced on appeal, or that Occupier's Liability laws in almost every jurisdiction have been changed since that case, to provide more protection to trail owners. Legislation dealing with motor vehicles (ATV's, Snowmobiles, and dirt bikes) and Insurance statutes provide a level of protection from risks relating to motorized vehicles on the trails.

Due, in part, to some overly heightened fears regarding trails and their use, landowners are often directed to ensure that user groups provide proof of liability insurance, naming the (public or private) landowner as an insured on the user group policy, before allowing trails to be developed on their lands.

We are certainly not opposed to municipalities transferring risk to users of their property. Risk transfer is a proper and useful risk management strategy in many circumstances. We would, however, suggest that many municipalities, who would like to develop trails, to reap their many financial and physical rewards, may want to examine the possibility of establishing a Committee of Council to allow increased influence over the trail as well as allowing the volunteers assisting in such a project to possibly be protected by the municipality's existing insurance coverage.

Not all insurance is the same and we recommend that you check with your insurer to ensure that such a committee would be covered under your existing policy.

As mentioned above, not all insurance is the same. We have seen many instances where trail risks have been transferred by landowners being named on trail users insurance policies, yet on examination of the users policy, it may not provide anywhere near the protection the landowner, or their insurer, assumed.

If you are demanding proof of insurance in any recreational activity, make sure that the insurance is in an adequate amount, and that it will respond to the types of loss you may encounter. Is the covered limit "per occurrence" or "aggregate"?

Do any conditions of the policy make the coverage void through an error in the performance of operations?

Recently we were involved in the examination of the risks associated with trails and the transfer of that risk between trail user groups and landowners. We were very surprised with the misconceptions we discoveredÉ..both in understanding the real level of risks on the trails, but also with the number of people who had the warm, fuzzy feeling of protection from transferring their risk, who had in fact not transferred nearly as much risk as they thought.

Developing a risk management program for trail ownership, use or maintenance is not a cumbersome task. A written policy should be established regarding frequency and types of inspection on the trail. As with all such policies, they should be followed and documented. Since municipal staff usually has more than enough tasks to occupy their time, we recommend the use of volunteers to assist in the trail inspection program. Through a half-day training program we have developed for staff and volunteers we have found not only can volunteers dramatically improve your risk management initiatives, but they will also thank you for the opportunity to help, and often want to put their new found interest in risk management to work to assist the community in other areas.

To assist in developing sound risk management practices for your trails, we have put together a Risk and Trails training manual that includes samples of such written inspection policies and inspection forms. Copies of Risk and Trails will be provided to all participants at the Public Risk Management Association-sponsored Risk and Recreation workshops being presented across North America (www.primacentral.org) or are available by contacting dwyseman@rogers.com.

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