Risk

1
Risk Liability
2
Risks from wildlife plants

• Mammals
• Snakes
• Insects
• Fish
• Plants

3
Activity-related risks

• Dangerous terrain
• Faulty equipment
• Climate-related factors
• Turbulent waters strong currents
• Lack of experience or training
• Inherent dangers of activity (assumed risk)

4
Risks from other individuals

• Conflicts between users
• Contamination of natural resources
• Criminal activities

5
Negligence Liability

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

6
Negligence Liability

• Liability
• Being responsible for a negligent act

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Tort laws vs. criminal laws

• Tort laws
• Civil wrongs such as negligence trespass
• Prosecution by plaintiff
• More than 50 of evidence must support
  plaintiffs claim
  

• Criminal laws
• Criminal wrongs
• Prosecution by law enforcement officials
• Proof beyond a reasonable doubt required

8
Who can be sued?

• Private land owners
• Commercial land owners
• Public agencies (sovereign immunity)
• Anyone!!

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Proving negligence

• Defendant has a responsibility to plaintiff.
• Plaintiff was harmed.
• Defendant committed act of omission or provided
  incorrect information.
  
• Harm done was directly related to defendants
  breach of duty.

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Types of Users

• Trespasser
• Licensee
• Invitee

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Trespasser

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

12
Licensee

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

13
Invitee

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

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NYS General Obligation Law

• Landowner has no duty to keep property safe for
  following uses by licensees trespassers
  
• Hunting Trapping
• Fishing Sledding
• Canoeing Boating
• Trapping Hiking
• Cross-country skiing Caving
• Biking Horseback riding
• ATV snowmobile use Hang gliding
• Gleaning Dog training

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NYS General Obligation Law (continued)

• Not applicable to backyards paved areas.
• Landowner may be liable for willful or malicious
  failure to guard against a dangerous condition.
  
• Applies to both posted and unposted properties.

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So why post??

• Posting enables the landowner to prosecute
  trespassers in court.

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Posted vs. unposted

• Posted or fenced property
• User is required to ask for permission to use
  property.
  
• User is a trespasser upon entry if permission is
  not granted
  

• Unposted property
• User does not legally have to ask permission.
• User must leave upon landowners request.

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Posting property in New York

• Signs must be at least 11 inches square.
• Signs must be posted no more than 660 feet
  apart.
  
• One sign must be posted on each corner, and along
  each boundary side.
  
• Sign must include owners name address.
• Signs must be replaced annually.

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Potential negligence

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

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Attractive nuisance

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

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Third party liability

• One invitee harms another invitee but the
  landowner is sued.
  
• Landowner is liable if a prudent manager could
  have prevented the harm.

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Faulty equipment
Similarities in liability

• Stolen equipment
• Borrowed equipment
• Rented equipment

• Trespassing
• Licensee
• Invitee

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Protection from liability

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

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Disclaimers

• 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.

25
Conducting a risk analysis

• Visually inspect recreational facilities
  property.
  
• Identify risks associated with recreational
  activities.
  
• Identify safety measures and regulations already
  in place.
  
• Identify level of insurance coverage.
• Assess risks vs. benefits for permitted
  activities.
  

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Risk management plan

• Includes
• Name of person in charge of safety
• Existing rules
• Schedule for systematic inspections
• Procedure for reporting and responding to
  emergencies
  
• Assessment of insurance coverage

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Any questions?