When I read the story this morning about a Pulaski ATV operator who was killed when his neck ran into a wire strung across a private trail in Albion, I got that “déjà vu” experience. I handled a similar case about 4 years ago. That case involved a dirt bike rider on a trail down in the Watkins Glen area. In that case, there were little red plastic flags strung along the wire that had worn out and become almost invisible with time. The owner had meant to prohibit entry onto the trail. We resolved this case with a settlement.
This Albion ATV accident happened on private trail. The owner of the trail might be held liable, depending on the facts. Some important facts a New York personal injury lawyer would consider are: (1) Who put the wire there (was it deliberately installed by the trail owner to keep users off, or was it placed there by some unknown persons as a kind of cruel joke? Obviously, it will be much easier to prove liability if the owner placed it there or had notice that it was there); (2) Was the wire visible or did it have visible markings on it? (This accident happened at about 8:50 p.m., so visibility would probably be minimal or non-existent); and (3) Were there any prior signs or warnings to stay off the trail?
If the owner meant to keep ATV riders and others off his property, this was a dangerous and cruel way to do so. Let’s hope that was not the case.
Should the family of the deceased ATV operator, or his injured passenger, choose to bring a New York wrongful death or an ATV injury claim against the trail owner, they will face one major legal hurdle. It is called the New York “Recreational Use Statute“. This law isolates property owners from liability for injury to recreational users of their land. The law was meant to encourage landowners to open up their land for public recreational use by alleviating the landowners’ fear of lawsuits.
The Statute has built-in exceptions, though, most notably: (1) “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity”. Also, the owner cannot benefit from the protection of the Statute if he charged the ATV operator for use of the trails.
Our condolences to the family of the deceased driver, and we wish his injured passenger a speedy recovery.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
Central NY Personal Injury Lawyer Michaels & Smolak, P.C.