Risk & LiabilityRisk & Liability

Risks from wildlife & Risks from wildlife & plantsplants

MammalsMammals SnakesSnakes InsectsInsects FishFish PlantsPlants

Activity-related risksActivity-related risks

Dangerous terrain/waterDangerous terrain/water Faulty equipmentFaulty equipment Climate-related factorsClimate-related factors Lack of experience or Lack of experience or

trainingtraining Inherent dangers of Inherent dangers of

activity (assumed risk)activity (assumed risk)

Risks from other Risks from other individualsindividuals

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

Negligence & LiabilityNegligence & Liability

NegligenceNegligence

The failure to implement reasonable The failure to implement reasonable precautions.precautions.

Can be through either omission or Can be through either omission or providing incorrect information. providing incorrect information.

Negligence & LiabilityNegligence & Liability

LiabilityLiability

Being responsible for a negligent actBeing responsible for a negligent act

Tort laws vs. criminal lawsTort laws vs. criminal laws

Tort lawsTort laws Civil wrongs such Civil wrongs such

as negligence & as negligence & trespasstrespass

Prosecution by Prosecution by plaintiffplaintiff

More than 50% of More than 50% of evidence must evidence must support plaintiff’s support plaintiff’s claimclaim

Criminal lawsCriminal laws Criminal wrongsCriminal wrongs

Prosecution by law Prosecution by law enforcement enforcement officialsofficials

Proof beyond a Proof beyond a reasonable doubt reasonable doubt requiredrequired

Who can be sued?Who can be sued?

Private land ownersPrivate land owners Commercial land ownersCommercial land owners Business ownersBusiness owners Public agencies (sovereign Public agencies (sovereign

immunity)immunity)

Anyone!!Anyone!!

Proving negligenceProving 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 Defendant committed act of omission or provided incorrect information.provided incorrect information.

Harm done was directly related to Harm done was directly related to defendant’s breach of duty.defendant’s breach of duty.

Types of UsersTypes of Users

TrespasserTrespasser LicenseeLicensee InviteeInvitee

TrespasserTrespasser

Person enters property without Person enters property without permission from the owner.permission from the owner.

Owner may be liable if:Owner may be liable if: harm to trespasser is done maliciouslyharm to trespasser is done maliciously owner willfully did not eliminate known owner willfully did not eliminate known

hazardshazards

Trespasser can be evicted using Trespasser can be evicted using “reasonable force.”“reasonable force.”

LicenseeLicensee

Person has permission from land Person has permission from land owner to use property but does owner to use property but does not pay for use.not pay for use.

Owner must warn user of Owner must warn user of knownknown hazards.hazards.

User assumes the risk for accidents User assumes the risk for accidents inherent to that activity.inherent to that activity.

InviteeInvitee

Person pays a fee to use property.Person pays a fee to use property. Applies to many recreation Applies to many recreation

businesses.businesses.

Manager must warn invitee of Manager must warn invitee of allall hazards & risks.hazards & risks.

Manager must eliminate all hazards Manager must eliminate all hazards & risks.& risks.

Landowner responsibilities Landowner responsibilities (trespassers & licensees)(trespassers & licensees)

NYS General Obligation Law Sec. 9-103NYS General Obligation Law Sec. 9-103

Landowner has no duty to keep property Landowner has no duty to keep property safe for following uses:safe for following uses:

HuntingHunting TrappingTrappingFishing Fishing SleddingSleddingCanoeingCanoeing BoatingBoatingTrappingTrapping HikingHikingCross-country skiingCross-country skiing CavingCavingBikingBiking Horseback ridingHorseback ridingATV & snowmobile useATV & snowmobile use Hang glidingHang glidingGleaningGleaning Dog trainingDog training

Landowner responsibilities Landowner responsibilities (trespassers & licensees)(trespassers & licensees) NYS General Obligation Law Sec. 9-103 NYS General Obligation Law Sec. 9-103

(continued)(continued)

Not applicable to backyards & paved Not applicable to backyards & paved areas.areas.

Landowner may be liable for willful or Landowner may be liable for willful or malicious failure to guard against a malicious failure to guard against a dangerous condition.dangerous condition.

Applies to both posted and unposted Applies to both posted and unposted properties.properties.

So why post then??So why post then??

Posting enables the landowner to Posting enables the landowner to prosecute trespassers in court.prosecute trespassers in court.

Posted vs. unposted Posted vs. unposted propertyproperty

Posted or fenced Posted or fenced propertyproperty: : User is required to User is required to

ask for permission ask for permission to use property. to use property.

User is a User is a trespasser as soon trespasser as soon as he/she enters as he/she enters propertyproperty

Unposted Unposted propertyproperty: :

User does not User does not legally have to ask legally have to ask permission.permission.

User must leave User must leave upon landowner’s upon landowner’s request.request.

Posting property in New Posting property in New YorkYork

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 Signs must be posted no more than 660 feet apart along property boundary.apart along property boundary.

One sign must be posted on each corner, and One sign must be posted on each corner, and along each boundary side.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.

Negligent situations Negligent situations (Invitees)(Invitees)

Imprudence of manager Imprudence of manager (reasonable person test)(reasonable person test)

Negligence of employeesNegligence of employees Poor facility designPoor facility design Lack of hazard warnings Lack of hazard warnings Third person liability Third person liability Faulty equipmentFaulty equipment Attractive nuisance Attractive nuisance

Attractive nuisance Attractive nuisance (trespassers, licensees, & invitees)(trespassers, licensees, & invitees)

A A human-madehuman-made object that attracts and object that attracts and is potentially dangerous to is potentially dangerous to childrenchildren. . Tree house vs. treeTree house vs. tree

Attractive nuisance must be properly Attractive nuisance must be properly sealed or concealed.sealed or concealed.

Injury must be sustained from the Injury must be sustained from the attractive nuisance itselfattractive nuisance itself Pool vs. fence surrounding poolPool vs. fence surrounding pool

Third party liability Third party liability (Invitees)(Invitees)

One invitee harms another invitee One invitee harms another invitee but the landowner is sued.but the landowner is sued.

Landowner is liable if a prudent Landowner is liable if a prudent manager could have prevented the manager could have prevented the harm.harm.

Faulty equipmentFaulty equipment

Stolen equipmentStolen equipment

Borrowed Borrowed equipmentequipment

Rented equipmentRented equipment

TrespassingTrespassing

LicenseeLicensee

InviteeInvitee

Similarities in liabilitySimilarities in liability

Protection from liabilityProtection from liability

Employee safety trainingEmployee safety training Careful visitor managementCareful visitor management Hazard warningsHazard warnings Scheduled repair & maintenanceScheduled repair & maintenance Proper fitting & use of equipmentProper fitting & use of equipment Free admissionFree admission IncorporationIncorporation Risk analysisRisk analysis Liability release forms (disclaimers)Liability release forms (disclaimers)

DisclaimersDisclaimers

An invitee agrees to take An invitee agrees to take responsibility for his/her own responsibility for his/her own actions when manager states what actions when manager states what the risks are.the risks are.

Does not always hold up in court.Does not always hold up in court.

Conducting a risk analysisConducting a risk analysis

Visually inspect recreational facilities & property. Visually inspect recreational facilities & property.

Identify risks associated with recreational Identify risks associated with recreational activities.activities.

Identify safety measures and regulations already Identify safety measures and regulations already in place.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.

Risk management planRisk management plan

Includes:Includes: Name of person in charge of safetyName of person in charge of safety

Existing rulesExisting rules

Schedule for systematic inspectionsSchedule for systematic inspections

Procedure for reporting and responding to Procedure for reporting and responding to emergenciesemergencies

Assessment of insurance coverageAssessment of insurance coverage

Any questions?Any questions?