Law Review: Does the trail immunity apply if bicyclist runs into fence on trail?
As more and more of my friends crash while bicycling in our bike-friendly paradise – on mountain bikes and road bikes – bike injury lawsuits is always topical.
BICYLCE CRASH INTO FENCE
Wagon Wheel Canyon Loop Trail, located in a park owned and operated by Orange County, is a 2.7 mile long loop trail used for hiking and bicycling.
It is hard to describe the scene without a photo, but picture this. A lodgepole fence runs perpendicularly across the trail. At the end of the fence is an opening to allow hikers and bicyclists to pass.
At some point, the lodgepole fence was replaced with new fencing, consisting of wooden fence posts between which were strung horizontal, grey-colored wire cables. Thin cables by the way. As you can imagine, the cables were not particularly visible, especially from a distance.
Sean Nealy, an experienced cyclist, was riding on the trail. Sean noticed the old wooden lodgepole fence had been removed but did not see the wire cables strung between the new fence posts. He mistakenly believed he could ride between the fence posts. Instead, he rode his bike directly into the cables, where he was thrown over the handlebars and onto the ground, resulting in serious injuries. No ribbons and markers were strung from the wire cables, which in hindsight would have been a good idea.
BICYCLIST VERSUS COUNTY
Sean sued Orange County for his injuries. The County claimed it was immune based on Immunity Section 831.4 of the Government Code, the so-called trail immunity statute.
The trial court ruled for Orange, Sean appealed.
PUBLIC TRAIL IMMUNITY
As you loyal readers know, as a general rule a public entity is liable for injuries resulting from “substantial, known dangerous conditions of its property… except as provided by statute.” One of the exceptions from liability is the so-called tail statute adopted more than fifty years ago. Government Code section 831.4 provides specific immunity for an injury caused by “a condition of… [a] any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas…” Another portion of section 831.4 expands that immunity to “[a] any trail used for [those] purposes.
So there are two related immunities: injuries on unpaved roads providing access to the listed activities and injuries caused by the condition of trails which are used for those activities. Court cases have expanded the immunity to paved trails as well.
The public purpose of these codes is to encourage public entities to open their property for public recreational use without much risk of being sued.
Seems to me Sean’s lawsuit is doomed. Just saying.
PLAINTIFF’S BIKE AND LAWSUIT GO DOWN
The Court of Appeal seemingly had no problem finding that the trail immunity code applied to Sean’s case, finding “the new fencing here was apart of the Trail itself.” The new perpendicular fence with wire cabling was connected to the trail and existed “only because of its connection to the Tail.” Failure to warn of a dangerous condition is irrelevant in a trail immunity case.
Given this case and the law, I recommend at least in any heavily trafficked trail or path, that any thin-wired cable fencing be marked with flags or ribbons to help prevent injuries. Preventing injuries is even more important than minimizing lawsuits.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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