I grew up mountain biking the trails of the Niagara Escarpment. Crashes would inevitably happen, but naturally as a kid/teenager my mind didn’t immediately turn to questions of liability.
However, in exploring the vast (and well maintained) trail network around the GTA on my gravel bike, hiking with my daughter and mom, and preparing for a presentation on Municipal Trail Liability for the Trail Research Hub, Ontario Trails Council and Canadian Trails Federation – I have been looking a lot at recreational trail safety and what cyclists should do if they are involved in a crash.
An assessment of this issue necessarily requires an outline of the kind of liability municipalities that fund and maintain recreational trails can expect.
To avoid people getting hurt and ultimately liability, we also identify what they can do to keep people safe through inspections, maintenance, signage and more.
According to section 4 of Occupiers Liability Act, a recreational trail is reasonably marked by notice as such, for the purpose of a recreational activity, and without payment of any fee. According to the OLA, a person using the trail is deemed to have willingly assumed the risks associated with the activity.
Meaning, if you’re crushing downhills on your MTB and make a mistake, that is likely on you.
An occupier (municipality or conservation authority) of these lands cannot be held responsible but for the proof of engaging in "reckless disregard" of the person on the trail. Ontario Courts have defined reckless disregard as:
“doing or omitting to do something which he or she should recognize as likely to cause damage or injury to [the person] present on his or her own premises, not caring whether such damage or injury results.’
Reckless Disregard as it relates to trails and cyclists:
In Herbert v. Brantford (City), a cyclist passed some hikers on a dangerous corner with no shoulder or recovery zone, in doing so he rode across some unravelling pavement, which caused him to crash into large and jagged rocks to the side of the trail. He sustained life altering injuries.
The Court of Appeal for Ontario upheld the lower court decision that the municipality had acted with reckless disregard on the basis that the area was a known danger zone and despite trail inspections every 30 days, the concrete degradation was either missed or ignored. Its repair was a crucial step in making a dangerous turn safer. Failing to do so would have obviously exacerbated the danger for trail users.
In Labanowicz v. Fort Erie, a cyclist was riding on the Niagara River Trail. An empty bollard housing was left unpainted, exposing the steel housing above grade but with very limited visibility. 3 years before the crash, a report had been presented to municipal council certain actions to reduce liability exposure should be taken, including painting around the bollard casings. This painting did happen around bollards on some parts of the trail but not where this cyclist crashed.
The Court held that the municipality was liable for the cyclist’s injuries having exercised a reckless disregard for persons using the trail.
Nevertheless, the duty to satisfy the burden of proof in these cases is not always or easily met. Each case above was decided on a robust review of trail construction, planning, inspection, maintenance, signage, weather degradation, etc.
The onus is on the injured party to prove reckless disregard.
In a recent case against the City of Toronto, a skateboarder who suffered terrible injury while riding an unlit forest trail at night was unsuccessful in proving reckless disregard. The failure to have a sign warning of darkness on a forest trail, amongst other factors, was not convincing to the Court of reckless disregard on Toronto’s part.
However, we wish to avoid cases like these.
We encourage all trail operators to promote the safe use of public trails. We want people to be outdoors, active, and engaged in our environment.
For municipalities and trail operators, we recommend the following to help avoid incidents wherein trail visitors are injured:
Cleary indicate bollard and gate placement
- Ensure visibility isn’t an issue
Follow safety instructions and reports, keep up to date on recreational trail safety.
Cautionary signage of drops, sharp turns, heavy traffic can help
Remove potentially hazardous materials (sharp rocks, concrete, fallen trees)
Create recovery areas where users may lose control
Address or inspect community concerns
Trim foliage
Ensure trail inspections and maintenance work is well documented
For those of you who do use recreational trails, like we do, for fun, fitness and exploration, document any danger zones you see and report them to trail staff. This can help others avoid future incidents.
Remember, if you are injured in an incident on a trail, it will be critical to:
1. Seek immediate medical attention.
2. Take pictures of the irregularity or incident area and any contributing factors.
3. Report the incident to trail authorities.
And, as always, contact The Biking Lawyer LLP if the unfortunate occurs. We've got your back.
Ride safe and ride often.
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