Bruce County Case Study: An Analysis by Jeff Jackson

Thank you to Jeff Jackson for providing this analysis and allowing us to share this on our website. For more information, please visit his blog here.
 
It's final: Bruce County lost its appeal regarding the finding of negligence in a mountain bike injury lawsuit.

Some context:
  • Bruce County was one of the first public jurisdictions to whole heartedly embrace mountain bike and trail tourism, way back in the early 2000’s. See more here
  • the Bruce Peninsula mtn bike adventure park, just outside of Wiarton, was one of the first in Ontario to build a specific skills area – keep in mind the date on this event in front of the court – 2008; at this time ‘skills area’ and north-shore skinnies went together.
  • Bruce County trails’ initiatives were considered a model at the time, and representatives presented at the 2006 Whistler IMBA international trails conference (here)
  • Bruce had and still has a full time summer trail crew and considerable expertise. This is not a lawn-mowing rec department trying out trails (full disclosure, I know several of the staff at Bruce involved with the trails program, and I ride these trails once or twice a year).
  • The ‘trials area’ and all the technical trail features (TTFs) have been removed since the event in question.

Some of the facts in this case:
  • The injured/plaintiff was a 43 year old father of two, an avid mountain biker new to TTFs, and is now rendered a quadriplegic.
  • The family visited the bike park and tried some of the features the day before the injury. The day of the injury the family returned, the plaintiff tried a modest TTF teeter totter, did not have enough momentum to get over the pivot point, and “wheelied” off on purpose (not sure what that means), went over the bars and broke vertebra C6 (neck). I take this to mean the rider attempted to ride/hop off the inclined teeter. I could be wrong.
  • This bike park is unsupervised and free 24/7.
  • There was ‘ride within your ability’ and ‘use at your own risk’ signage, as well as a difficulty rating on the feature, as a black diamond.
  • The teeter was 26” tall at the pivot, but quite steep (see photo above). I would call it intermediate by TTF standards, and was about medium compared to the other TTF’s in the area. But the teeter length/run was short, so the angle was steep making it more balancy.
  • A small/easy teeter immediately preceded the teeter in question. There was discussion in the case regarding the flow from the easy teeter into the more difficult one.
  • Unfortunately, 3 months prior to this event, another rider fell from a very large, burly multi-teeter and broke their neck at this park. That teeter was removed. Insurance settled, I believe (I was asked for expert opinion in the early rounds of that event and did not hear how it ended).

The court’s findings:
  • The park’s signage wasn’t adequate regarding the skills area
  • The promotion of the park was misleading (implying an easy, family friendly trail area, rather than a skill testing, potentially injury producing trials area – note trail vs. trials throughout this piece)
  • There was inadequate risk assessment, monitoring and injury reporting
  • There was not “adequate progression of qualifiers” i.e. no progression was offered, no filters limited access to difficult features (for full reading of the case, click here)

By today’s standards, points 1, 3 & 4 are legit. But keep in mind this just finished its time before the courts, a full 8 years after the injury. By 2008’s standards, I would have defended their TTFs as better than most, and their signage reflected what we all did at that time (which doesn’t make it right). The park was unsupervised purposely, so no monitoring existed (see the trial notes on this). I also recognize the point 4 about progression. We’re a lot smarter now, in part due to cases like this one.
What does this all mean:
  • Times are changing. Signage and informed consent have and are still evolving. The yellow box/red border waiver language is being replaced by real safety messaging. I’ve yet to see a modern bike park do signage as well as snowboard terrain parks do it (I admit, Whistler bike park does a pretty good job). See IMBA’s Bike Parks book (with a risk section written by me!) here https://www.imba.com/catalog/book-bike-parks-imbas-guide-new-school-trails for some guidance. I have more to say about this at another time.
  • Teeters are gone. If you are reading this and manage trails, remove your teeters. I work as a risk management consultant and do decent business doing risk assessments and risk plans for municipal trails (1 or 2 per year). I’ve been recommending against teeters since 2007, and my last couple of contracts I outright told the municipality to remove their teeters. They have proven indefensible (this is a story in itself).
  • Trails and skills parks are not the same thing. They need to be managed differently – this is very important for trail managers to wrap our collective heads around. Inherent risks of trail riding are established (and explicitly covered in the Occupier’s Liability Act) but TTFs and bike parks are outside of common understanding by today’s standards.
  • Contributory negligence – an anchor in risk based sports – somehow did not play here. I am genuinely surprised that the judge did not consider an experienced mountain biker as being able to observe and assess the hazard the teeter posed. I would like to read the court transcripts on this one. The judge’s finding essentially reasons that being a trail biker does not equip one to ride TTFs. This is not completely untrue, but was presented as absolute in this case.
  • Contributory negligence part 2: since 2013 there have been 3 judgements against municipalities where they were considered 100% at fault (according to Frank Cowan (municipal) insurance provider). What is going on here? Usually, especially with recreation/risk activities, the user is deemed to “willingly assumed all risks”. Is this a fundamental turn in the courts? These findings are contrary to the Occupier’s Liability Act (which is, obviously, open to interpretation by the courts). But, having said that, the NCC in Ottawa was given summary judgement (i.e. case dismissed) based on the OLA in a rec trail injury in 2014 (here). It’s not all doom and gloom, despite what insurance providers tell crowds (trust me, I’ve shared the stage with too many ins reps and their message is always the same – don’t do it or you’ll get sued)
What to do?
Remove teeters, some will be sorry to hear; manage your trails differently than your skills/progression areas; think about signage from the rider’s perspective; consider instituting a trail pass of sorts which will gain waiver coverage.
*This is a summary of ideas and not a thorough legal analysis. Any errors in fact I apologize and am open to correction