Types of Recreational Accidents
No matter how careful we are, accidents happen. As more people enjoy the active, outdoor lifestyle that Colorado offers, more suffer from injuries in sports and recreational accidents. One in five recreational enthusiasts will likely suffer some kind of accident, and 71% of these will be serious. The most common activities resulting in injury are bicycling, horseback riding, and team ball sports.
The largest incidence of serious injury involves bicycling. If your bicycle accident was caused by the driver of a motor vehicle, read about road bike accidents. But if you’ve been injured while riding a bike on a trail or in open space, this information is for you.
What makes a recreational accident case unique?
As more individuals spend free time pursuing recreational activities, the risk of injury has also increased. Typically, these activities are undertaken away from home, and frequently, on public land. Whether injury has resulted due to the negligence of another party of course depends on the specific facts of any given case, but general considerations may provide guidance in evaluating a possible claim.
Was the accident on public land?
Many recreational activities are enjoyed on public land. Federal land is often managed by the U.S. Forest Service or the Bureau of Land management. The Federal Torts Claim Act, 28 U.S.C. §2671-2680 (FTCA), provides that the federal government waives its traditional claim of immunity, when its employees are negligent, and when a private person would be liable under the same circumstances, according to the law of the place where the negligence occurred. However, this waiver is limited by the discretionary function exception. It provides that no claim may be brought against the United States when the claim is based upon the exercise of a discretionary function or duty. In a winter accident in Yellowstone National Park, a child fell 400 feet to his death. The parents filed a claim for wrongful death, asserting that the park ranger was negligent for failing to close the trail on which the child was snowmobiling. The Court of Appeals for the 9th Circuit held that whether to mark or close a trail was a discretionary function, and therefore the National Park Service was immune from liability. See Childers v. United States, 40 F.3d 973 (9th Cir. 1994).
The Government may also argue that it enjoys the protection of the applicable Recreational Use statute. The Tenth Circuit, the federal court jurisdiction for Colorado, has consistently held that the United States is entitled to the protection of state recreational use statutes, including the Colorado Recreational Use Statute.
The State, counties or municipalities own much public land which provides for recreational activities. Accidents on these lands will be governed by the Colorado Government Immunity Act, a state statute which provides specific conditions for when and how one may bring a lawsuit against a state entity.
Was the accident on private land?
If the accident was on private land, most states have a premises liability statute which provides the duty of care owed by the landowner to others on the property. In Colorado, this statute is the Colorado Premises Liability statute, C.R.S. §13-21-115. Read more about premises liability.
Many states have "Recreational Use" statutes on the books, which shield private rural landowners from most tort liability for damages suffered by those who come onto their land, free of charge, to pursue recreational activities.
The effects of a Recreational Use statute can be wide ranging. Here in Colorado, the Colorado Recreational Use Statute (C.R.S. § 33-41-103) provides that an owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose;
(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;
(c) Assume responsibility or incur liability for any injury to person or property or for the death of any person caused by an act or omission of such person.
The statute does, however, go on to identify four circumstances in which a landowner's liability is not limited. A landowner is not protected from liability when it (a) "willfully or maliciously fails to guard or warn against a known dangerous condition, use, structure or activity likely to cause harm;" (b) "charges" the person for the recreational use of the land; (c) maintains an "attractive nuisance;" or (d) when injuries are received "on land incidental to the use of land on which an commercial or business enterprise of any description is being carried on." C.R.S. § 33-41-104.
Waivers and Releases
When presented with a release, read it carefully before you sign it. The release should be plainly worded, should include the word "negligence", and must contemplate the conduct which forms the underlying basis of the claim asserted. The release should disclaim acts of negligence, only, and then, only with respect to the inherent dangers of the sport or activity. If you are presented with a waiver which provides for release of the organizer/group from all claims for negligence, consider whether you really want to participate in the activity. If the group responsible for your safety demands a complete release, ask "why?".
During the 2003 legislative session, Colorado passed a law which allows a parent to release or waive on behalf of his or her child, the child's prospective claim for negligence against persons or entities involved in recreational, educational, and other activities. But the release should not relieve an organization from neglect in connection with the basic care for the child, e.g., allowing strangers to pick up children, rather than the parents, failure to provide a safe pick up or drop off area, deliberate abuse by an employee, etc.
Product Liability Claims
Many recreational accidents involve failure of equipment such as poor riding tack, failure of bicycle brakes, and lack of lights on snowmobiles. If equipment is improperly maintained, then the provider of the equipment may have acted negligently.
But if the equipment is defective in its design or manufacture, then the manufacturer may be liable. The circumstances of any accident involving failure of the equipment should be reviewed for a possible defective product claim. We have extensive experience with product liability lawsuits, read more about defective product claims.
If your accident involved skiing or snowboarding equipment, please read our ski equipment failure discussion.
What to expect from a recreational accident lawsuit?
A successful claim for a recreational accident usually involves serious damages. Medical expenses for internal injuries and broken bones can easily run into six-figures. The nature of the injuries suffered in many recreational accidents often means expensive treatment and rehabilitation are needed over a long-term period. Other expenses which arise include future medical expenses, often coupled with a loss of income if the victim was previously employed. The injured victim may seek compensation from the negligent party for all of these expenses. Read more about Damages.
Accidents happen. What’s next?
Chalat Hatten & Banker can help. Let’s talk one-on-one about your case. We’ll answer your questions during a free, no-obligation consultation with a lawyer. Call 303.861.1042 today.