Backyard dirt jump liability
I have a set of jumps that I built on my parents land behind their house. I built the jumps so that I could share them with the local kids and riders, who I have met riding my local skatepark. I am trying to promote and build a positive bike scene. The jumps are beginning to get popular and my parents have expressed concern about someone getting hurt. I know you are not a lawyer, but I need to know how I can protect my parents and myself from any lawsuits.
Also thanks for the advice on a DJ bike (20 vs 24 vs 26 for BMX riding) that I wrote to you about, I have the 09 Fit cruiser complete on order
Calabasas dirt jumps in San Jose, CA, 2004. This craziness did not follow industry best practices (see Are your dirt jumps safety certified?). A kid got hurt soon after this, and the park was closed. Calabasas has since been rebuilt and re-opened as an official municipal dirt jump park.
This is a tough one.
Disclaimer: I am not a lawyer. For actual legal advice, consult one of those guys.
OK, here are some thoughts:
Reality: If someone wants to sue you, they will sue you. It doesn’t matter what they signed or how nice they were before Junior got hurt. They can file a suit. Even if your state laws don’t let the suit go far, the ordeal will be stressful.
Quality: I got this from an actual lawyer, because I do a fair amount of track design. When a city installs a playground, they must follow “industry best practices,” meaning the swing set is as safe as it can be — at least as safe as the industry deems necessary.
These standards don’t exist widely for dirt jumps and pump tracks (I am working to change that), but you should design the jumps as safe as you can. When you’re in court because Johnny clipped a steep landing mound, you’ll need to justify the way you built it. “Uh, I dunno …” will cost you a lot of money.
This is another reason pump tracks are so great. They are made for safety, and you can say you followed the guidelines in the ebook Welcome to Pump track Nation, which is currently as close to industry standard as you can get. (BTW: I have a draft of a dirt jump book, with detailed standards for dirt jumps, but that’s on the bottom of the to-do pile.)
Attractive nuisance: This is also from the lawyer. Basically, if your dirt jumps are out there for all to see, and they are easy for anyone to access, you are responsible for whatever happens. It’s like the city leaving a huge, unmarked hole in the middle of a road. You don’t see them doing that, do you? Your jumps should ideally be hidden, and their access should be restricted. A chain and sign will go a long way in explaining yourself in court — and they might keep out the riff-raff.
Junior Pump Track Worlds at my old house. 2006. These guys were on The Fix Junior Racing Team, and their parents signed waivers.
Signs: More and more cities are building dirt jump parks — which is awesome! They all have signs like you’d find at a skate park or public pool.
These signs outline all possible risks and stipulate that, by participating in the activity, you are accepting all risks. This sign should be situated so every rider must pass it and see it. At Lory State Park, we worked the warning sign into the turnstile.
Waivers: If you encounter a vengeful parent, a waiver is worth as much as the paper and printer ink, but waivers do a great job of establishing expectations and filtering out people who are least likely to accept responsibility.
Definitely have every adult and parent sign a waiver, and keep them all on file. When Mark Weir built his pump track, he had a lawyer craft a waiver, all kids must have their parents sign it. Welcome to Pump track Nation contains a waiver. That’s a lot of value for 10 bucks. Use it!!!
Insurance: It is very hard to insure private dirt jumps. The best option I can think of is to form an IMBA club — everyone who signs the waiver becomes a member. McKay Insurance insures IMBA clubs. I talked to him, and he seemed very cool.
Charge: Charging money will help defray costs, and it will keep the ridership to a committed minimum, but that isn’t exactly spreading the love.
I totally admire your intentions here, but providing a free-for-all at your parents’ house is asking for trouble. You can take this as far as you want, but I suggest at least:
1. Make sure the jumps/pumps are built safe.
2. Restrict access.
3. Use a waiver.
This advise is worth as much as the electrons zooming around your computer screen.
Have fun and keep spreading the love!
I have thought about this a bit myself. I am considering buying a vacation home soon that will become a retirement home later. I want some land so I could let my son build a pump track and maybe some jumps. If I build it he will come (and visit his old man a little more often than he does now).
Besides Lee’s excellent suggestions I have two more to throw out on the table:
1. I don’t think charging money is a good idea because that might make it a business that might require commercial insurance. The homeowner’s insurance *MAY* no longer apply. However, donations to the kegerator fund would be accepted.
2. In my situation, I would be tempted to require that anyone that my son brings with him must have at least an expert license. Anyone that has a lower level license has no business jumping anything that my son would want to build. At least I could argue in court that they should have known what they were doing.
3. Beside having a fence around it to keep out strangers, also consider sinking some posts in concrete so you can install a chain with padlock across the big jumps.
Great point on charging for admission. it might also affect your liability.
The Fix charges these days, but that’s a biz.
Chris, try filters. MTB parks such as Northstar and Whistler (and this practice is preached by IMBA) put a ‘stunt’ that is similar to what is expected on the rest of the trail at the very beginning of the trail (often fenced/blocked either side so punters can’t bypass it). Anyone who can’t do the first stunt shouldn’t be on the rest of the trail.
So here’s how that works for you. Say you build a 16 foot set of doubles with only a straight sprint in front of it, ANYONE can hit it. Which means ANYONE can hurt themselves on it. But if you precede it with a coupla rollers, a eight foot gap that kicks the rider high, a roller, and then a 12 foot low trajectory gap that needs the kajeebers pumped out of it to get up to Warp Factor 9, and then the big gap, then, my friend, only people who really know what they are doing are gonna get anywhere near enough speed to hit it.
Progressive jumps are the way to go, but make ’em work for their gaps. And if you are rocking a hardtail, then a must-pump lead-in will keep those types who think their DH bike is gonna save their butt from having a go.
Someone will get hurt and some will sue. That’s a fact.
I know we all want to share but that’s bad idea.
Treat it like a backyard swmimming pool. Keep it secured. You don’t let neighbors come in and swim everyday or every weekend. If neighbors start hassling to come in tell them the lawyers said no.
I know someone who has a foam pit in his backyard. Do you think it’s a jump fest there all the time? No way.
I think Lee is dead on with his last three recommendations. The fourth I would add is to include some sort of signage. I’m not a lawyer (so consult one), but in my experience and “action park” case law, signage is at least as powerful as a waiver in avoiding liability should a lawsuit occur. And no matter what, don’t charge for access to the jumps unless you are ready to buy the appropriate insurance. Charging a fee will restrict your protection under your state’s recreation use statutes.
Be sure to read up on your state’s recreational use statutes so that you know specifically how you are protected. Some RUSs only cover the hook and bullit crowd, some provide bulletproof protection for land owners in your situation. Either way, knowledge is power.
And good on ya’ for trying to build your community!
Calabasas is a good example of a city messing something up. I have no idea what they were like pre-rebuild but the way they are now sucks big time. Only a few sets feel good and flow. Everything else is terrible. It’s built well, but the shape and spacing of the jumps is way off.
I rode Calabasas early this year, and you’re right: The jumps have funny flow. I won’t complain because — heck — there is a public dirt jump spot in San Jose.
But good-flowing dirt jumps require considerable knowledge and/or experience. When cities put these contracts out for bid, they seldom get experienced dirt-jump builders.
My wife adds this idea:
She says when you have a swimming pool you need extra homeowner’s insurance to cover the “what-if” scenarios. This idea would likely apply to pump tracks and dirt jumps as well.
I’ll add two more thoughts.
I agree on the extra insurance. I added an umbrella liability policy when we built the swimming pool in 1989. It may no longer be high enough, but no one ever sneaks into our yard to use the pool because a lot of the houses around here have pools. Sneaking in to use something is more likely when there is only one around, like a pump track or jumps.
Since the jumps are home built, what happens if only active builders are allowed to ride. You could try to argue that the guy that got hurt was injured because he built it wrong.
As a rider who’s also a lawyer with lots of insurance experience, I’ll say the following.
1) Don’t try to create a public-ish jump facility at your own house. That’s just asking for trouble.
2) Try requiring people to sign a waiver, see where it takes you.
3) Make the waiver one that must be signed by the rider’s parents.
4) Make the waiver read in plain English. If you ask a lawyer to write it up for you, tell the lawyer it needs to be understood by a 10-year-old child. Most lawyers write as if the whole world were lawyers who enjoy reading poorly written English.
The waiver serves some great purposes. Most importantly, it will tell you who is serious about not wanting to hold you liable. Those who wouldn’t in a million years want to sue you, they won’t mind the waiver.
And re insurance — you’re not going to find many homeowners insurance carriers who are going to stand behind you if someone gets hurt here. Homeowners carriers treat homes differently than recreation parks. Homes aren’t where people gather in bunches to try daring things. Parks are (or can be). If you plan to get insurance for this, talk to an insurance broker, don’t just expect that your homeowner’s insurance will cover it.
The comments to date contain some good advice. The best two pieces of advice are 1.) see a lawyer in your town/state, and 2.) do not charge money. Besides insurance issues, if you charge money the level of the duty you owe to those folks who pay you is likely to jump significantly. In my state at least, the difference between a mere social guest and business invitee is significant.
Treat the jumps like a backyard pool is a good way to think about it. That’s how we treat the pumptrack we built on my in-laws property.
I would encourage you to use your enthusiasm for the sport and youth to champion some municipality sponsored bike specific features in your city. In my state, government entities are well protected by statute, in addition to their common law immunities, for recreational features such as bike trails and skate parks (we have a good skate park for our size and location because of it and the counsil desire to spend money in a certain area of town). It can be a hassle to deal with the city from a timing standpoint but you’ll be doing a good service where you succeed. I am about to dive into a pumptrack “drive” for some empty space next to the skate park. And I expect it to take a while even though I am good friends with an influential councilman.
My perception, at least in my town, is that you shouldn’t try to get space and help to build at a park in the swankier part of town. Target an area that is considered lower income/less desirable or somewhere in between. City councils are looking for good reasons to invest in those areas of town, for altruistic reasons and to answer comments that they aren’t paying attention to these areas. And you might create opportnuities to evangalize the sport to those that might not think its accessible to them.
Justin reminded me of a story…
I used to I live in an Australian town nicknamed ‘Struggletown’. There was a perfect area that already a ultra basic ‘track’ with some very poor ‘jumps’. It was waay to close to my house for me not to do anything about it. I approached the council, they were stoked. I ended up with the key to the gate. Dirt was coming from a local cemetary (they were paying to get rid of their dirt and it was the best DJ dirt in the world). I’d meet the dump truck and tell them EXACTLY where to dump. Basically, all systems go. You couldn’t dream it was so good and the front end loader was coming soon to do some landscaping to my directions. It was too good too be true…
The front-end loader could not fit through the gate. So I asked the council to make a double gate. All of a sudden the council wouldn’t help me. An X-games DJ event was held in town at a different venue and the council wouldn’t let me have the dirt. All help from the council ceased. I got no answers. Nothing.
Some months later I was talking to a counciller that did not know who I was and found out that my work had made the jumps TOO popular with the kids. They were there earlier in the morning, later at night and they got ONE complaint from a house nearby. Goodbye paradise.
Why can’t you just put up sigs that say No Trespassing, Violators Will Be Prosecuted. All around the jump. You don’t have to enforce the signs and if someone does get hurt, they were trespassing. I guess.
I’ve heard different things on that. I hope Sean the lawyer will weigh in .
The no trespassing signs and fences are not enough this is due to the attractive nuisance line lee speaks about. Example Construction company has a crane on site with fences and signs kid climbs then falls parent sues company pays. Why because the kid is not 18 and competant thus can’t be judge by the “implied contract”(I made that term up but context clues should lead you to the answer).
Anyway the point is put up a sign it will defend you from people that respect them. Then put up a fence it will protect you from the people that respect them. Then do what Chris above says and build techy jumps that require a great deal of skill to get into the line this will keep out the illerate fence jumpers. And finally you’re building a private club treat it as such make people make an effort to get to know you before you let them ride at your house. Anyone that has been in the game a while knows this and won’t be bothered by force people to be courteous and polite by making them ask, it will do the whole world a favor. And for the love of god make the kids dig teach them love of the art that is trail building.
Trespassing is treated differently in each state. I don’t know Colorado’s practices on enforcing trespass laws. I live in Montana where all you have to do is paint some orange on your fence, or on trees, and that means “no trespassing.”
Will merely putting up a sign work? I doubt it. Every law student in America has likely covered the subject of “attractive nuisance,” where there were no trespassing signs posted on a tall fence, and yet someone climbed the fence and got injured, and the property owner was successfully found liable. Such cases are rare, but they do exist for a reason — some communities think that you need to do more than just tell people to stay away.
I would not even consider myself exonerated by posting signs. Not a chance. But that’s just me. If anyone wants to try to find out how greedy and litigious their neighbors are, well they should try the post-a-sign-and-leave-it-be route. My guess is in that most American neighborhoods, **some** kids will ignore the signs, and once a few do, there goes your cascade of kids ignoring the signs as peer-followers.
Kids don’t approach the world like adults. Kids don’t think of property rights, kids don’t think of liabilities, kids don’t think of the cost of medical care, kids don’t think of litigation. It’s the parents you have to worry about, parents who get angry when their kids get hurt.
AFAIK, Sean’s last point was what happened at Calabasas a while ago, sort of. I saw posts written by the young man who hurt himself and it was his father that was suing while his son was pleading with him not to. The son says he didn’t even live with his father and the father was just after cash. I wish I could remember where I read the entire story. I believe it was the incident that got the closed down last time.
Some friends and I built a great set of trails on public land once (in Australia). I lost count of the amount of broken bones those jumps caused (rider error each time). They were finally dozed because the authorities thought they had the potential to hurt people (ignorant that the potential had already been realised). Not a single one of the dozen people (mid-teens to late 30s) injured took any action. But I agree with Sean, its the parents that have the greater potential to sue.
I am reluctant to add this, but:
– If the rider incurs major expenses, his insurance company might spearhead a suit.
– If a rider becomes long-term disabled, the costs wil monstrous and long-term. The rider and his family might have no choice other than to try to find some money. That happened at Snow Summit. … Long term disability is another big can of worms …
Lee — that’s a very important observation. Insurance companies will pursue what is known as “subrogation” lawsuits, where they try to recover money from the party that they think was truly liable for their insured’s injuries. So even if the kid’s parent doesn’t think he/she needs to sue the owner of the DJs, that parent’s med benefits insurer may decide to conduct a lawsuit to recover money.
And I agree completely, sometimes parents aren’t suing out of greed, but out of necessity. Medical care is expensive, and many medical plans will leave coverage gaps that cause bills to fall partly on the parents’ shoulders.
Lee, your comment about insurance companies spearheading a lawsuit is true. I used to work for an ATV tour company and we did have waivers, rules, warnings(signage and verbal), rider instruction and the whole 9 yards.
We did have both minor and very serious injuries on our tours. Lawsuits were actually pretty rare but guaranteed whenever someone needed medical attention for something serious. This is because the customer’s medical insurance company will always seek payment for treatment from whoever they can hold liable-which is always the property owner and activity operator.
In one particular case a rider sustained serious injuries and actually apologized to us for not riding properly. He even sent us a letter of apology. However, his Medical insurance company initiated a lawsuit despite this. Insurance companies don’t care about who we blame for our injuries. If there is any possibilty for them to make someone else pay for medical care they will pursue it to the fullest.
I think the bottom line here is that if you do decide to build your track, know that eventually you will pay for someone else’s stupidity in some way.
I am planning to build a pump track in my backyard but with the experience I have had with people getting hurt I am limiting the use of my track to myself, my kids when they are off training wheels, and Lee if he ever comes to Kauai after I’m done building it.