Regulating Trails
Associations can regulate how their equestrian and hiking trails are used. They can prohibit bicycles and motorized vehicles from using them. All trails should be inspected periodically and maintained in a reasonably safe condition.
Associations can prohibit e-bikes on trails. The average cyclist goes about 12 mph on a regular bicycle. E-bikes (electric-assisted bicycles) come in all shapes, sizes, and speeds--some can achieve speeds up to 28 miles per hour under motor assistance. Level-2 e-bikes are not limited to 20 mph. Instead, it's the speed at which the electric motor stops assisting the rider. The e-bike can still go as fast as the person can pedal. Because of the motor assist, e-bikes help cyclists maintain a higher average speed. One European study found that e-bike riders had much higher average speeds than regular cyclists. A study by Reuters Health News found that "powered bikes carry a higher risk of severe injuries than traditional bicycles." If an association decides e-bikes create unsafe conditions, it can restrict them from paths and trails. Your board can institute a test period with appropriate rules to see if e-bike riders create hazardous trail conditions.
Disabled Access
The Orange Park Community Association (OPCA) had a common area trail system accessible to residents and non-residents alike. For safety reasons, the association installed barriers at the trail's entry points to prevent vehicle access. A non-resident disabled person wanted to use a horse-drawn carriage on the trails and sued the association under the Disabled Persons Act, the Unruh Civil Rights Act, and the Americans with Disabilities Act. The court concluded that the association's private trails were not transformed into public accommodations merely because the association did not actively exclude members of the public from using them. (Carolyn v. Orange Park Community Association (2009) 177 Cal.App.4th 1090)
Recreational Immunity
In general, associations are not liable for injuries that occur on equestrian and walking trails per California’s recreational use immunity statute. (Civ. Code § 846) This statute provides that owners of land used for recreational purposes have no duty of care to keep the premises (trails and open space) safe for entry or use by others. Recreational purposes include hiking, nature walks, riding, and horseback riding.
Horses. Miller sued the Rancho Santa Fe Association after being injured while riding her horse on a trail maintained by the association. The accident took place on the Weitzens' private driveway, which crossed the trail. The court ruled against Miller. It held that Civil Code § 846 protects easement owners and property owners from liability for recreational use of their property. (Miller v. Weitzen (2005) 133 Cal.App.4th 732)
Dogs. Eleven-year-old Cody was attacked by dogs and severely injured. The attack occurred on a private road in an association. Plaintiffs sought to expand liability from the dog's owner to the association because it held access easements over the road. The court declined to expand liability to the association, which did not create the hazard, did not own the dogs, had no interest in the land from which the dogs escaped, and did not own the road where the attack occurred. (Cody v. Falletti)
Exceptions to Immunity
There are exceptions to recreational immunities. Following are some examples:
- Unreasonable Risk of Harm. Landowners have a duty to exercise ordinary care in the management of premises to avoid exposing persons to unreasonable risk of harm. Determination of whether a property owner owed a duty toward an injured person entails an inquiry as to whether, in the management of his or her property, the owner has acted as a reasonable person in view of the probability of injury to those in exceptional cases.
- Aware of Concealed Conditions. If there are any latent or concealed perils on the land, the possessor is under a duty to exercise ordinary care either to make the condition reasonably safe for those coming onto the land or to give such persons a warning sufficient to enable them to avoid harm. Indeed, where the occupier of land is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person on the premises is about to come in contact with it, the court can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.
- Willful or Malicious. If there was a willful or malicious failure by an association to guard against or warn of dangerous conditions, use, structure, or activity, it would likely be found liable for any resulting injuries.
- Fee to Use Trails. If an association charges people to use its trails and open space areas, it can be held to a higher standard of care. For example, a golfer was stung 50 times by a swarm of yellow jackets and almost died. Clubs have a duty to exercise reasonable care to protect patrons against the foreseeable risk posed by yellow jackets. The golf club argued it had no duty to protect golfers from insects without prior knowledge of their existence. The court found the club liable because it did not regularly inspect the grounds for pests or use any preventative measures to control yellow jackets. (Staats v. Vintner's Golf Club, LLC)
- Invitation to Use. An association could be found liable if it expressly invites, rather than merely permits, persons to go on the trails and open spaces. The owner of premises owes a duty to an invitee to maintain the premises in a reasonably safe condition and to warn the invitee of any dangerous condition which is actually or constructively known to him, but he is not liable for injury to the invitee which results from a condition that is obvious or should have been observed by the invitee in the exercise of reasonable care. An invitee is a business visitor who is invited or permitted to enter or remain on the land of another for a purpose directly or indirectly connected with business dealings between such person and the owner or possessor of the land.
- Employee Negligence. Negligence by association employees can create liability. For example, if an employee drives a vehicle negligently on the trails or open space and injures someone, the association would likely be found liable.
Avoiding Liability
Maintenance. With the exceptions described above, associations should not rely on recreational immunities to protect them from liability. Instead, associations should have a regular inspection and maintenance schedule for trails and open areas. If, for example, a trail has been washed out, an association should close it, post signs, and maintain it. Not doing so may be construed as a willful failure to guard against dangerous use of the trail, which may be a basis of liability if someone is injured.
Warning Signs. Generally, it is a good idea to post warning signs and disclaimers at the trailhead, as this helps mitigate liability.
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