Tuesday, June 26, 2012

Liability for DNV recreational trails?

DNV-sanctioned (and rebuilt) section of "Ladies Only" Trail 
on Mt. Fromme (NSMB.com files)

Liability for recreational trails

18 June 2012
Article by Dianne Saxe

In our December article for Municipal World, we wrote about municipal liability to cyclists for failing to maintain roads in a proper state of repair. Municipalities could similarly find themselves liable as the occupiers of recreational path systems, if the trails are not adequately maintained.
The standard a municipality must meet in ensuring the safety of recreational trail users varies by province. Where Occupiers’ Liability statutes exist, they may require the occupier to take “reasonable care” or may only require the same degree of care as must be shown to a trespasser, namely that it may not act with “reckless disregard” of that person’s presence on their property. The common law is in effect where there is no such statute...

...“Reckless Disregard”

To encourage the creation of recreational trails, the Occupiers’ Liability statutes of British Columbia, Manitoba, Ontario, Prince Edward Island, and Nova Scotia specifically restrict the duty owed by owners and occupiers to recreational trail users. Trail users are deemed to have willingly assumed the risks associated with the trails. The Ontario Court of Appeal described the rationale for this in Schneider v. St. Clair Region Conservation Authority. Thus, a municipality that maintains recreational trails in these provinces only have two duties: not to create a danger with the deliberate intent of doing harm and not to act with reckless disregard of the person’s presence....
Where does DNV liability stand in light of all their sanctioned "amusement park" structure building for mountain biking on our public forest trails? There are miles of wooden structures built: rollercoaster rides, teeter-totters, ladder bridges, jump ramp, wall rides, etc. In a rain forest wood tends to fall apart, with rungs missing or broken, quite frequently -- especially with the wear and tear from bikes constantly riding over them in all sorts of inclement weather?

DNV trail signage is not always clear to most folk, especially when you have contradictory signage on one stretch of trail, where it starts off as "Hiking Only" trail, then suddenly changes without warning into a "Multi-Use" (hiking and biking) trail. And what are the legal differences between a Mountain Biking "Only"; Mtn Biking "Primary"; and Multi-Use Trails? Signage, like waiver forms, do not always protect against liability, as we see time and time again. Discuss.


Mocrael said...

In particular: "What constitutes reckless disregard in trail maintenance and construction was considered by the Ontario Superior Court of Justice in Herbert (Litigation Guardian of) v. Brantford (City)...The City was held 40% responsible for the accident...
...municipalities must still take care to ensure that the trails are reasonable safe for use. This is particularly true where the municipality knows of a danger that trail users may be unaware of."

Anonymous said...

Great post!

The DNV doesn't care a RA about sustainability and all other environmental concerns.

All it cares about is $$$ and developers.

So sad.

Anonymous said...

Why doesn't somebody like David Suzuki come in and do a professional analysis of these trails?

Anonymous said...

District already had a professional analysis done to those trails in 2007 by a contracted company with vested mountain biking interests.

Anonymous said...

If you would believe the NSMBA and their partners at District Hall, these trails are maintained and are sustainable.

One has to ask, why does the NSMBA continually get accolades for this maintenance, when actually they are getting bored with current trails, because of ecological failure, and then they build new ones?

Anonymous said...

If there is an accident on these trails, we rate-payers in the district are on the hook for liability as pointed out.

Anonymous said...

With respect, Mocrael is not a lawyer, and I am sure the District knows what its legal responsibility is.

Anonymous said...

Do they? Really?

Anonymous said...

Look at what the DNV lawyers did with the mudslide in 2005.

Anonymous said...

The best thing that could happen is if some hell-bent mountainbiker kills himself.

And then his family tries to sue the DNV.

Wow! We can only wish.

Mocrael said...

That isn't going to happen any time soon, I'm afraid. There was a mountain biking death, last month, in West Vancouver's Cypress area. The jump ramp and trail are still considered unsanctioned by DWV. The family did not sue DWV, but supported the NSMBA.

Meanwhile, DWV seems to be going ahead with sanctioning mountain biking and trail building according to their "Parks Master Plan". The plan states that they may be following DNV's "innovative management model for mountain bike trails involving the North Shore Mountain Bike Association, with potential for application in West Vancouver."

Go figure?

John Sharpe said...

I still think there should be an independent environmental assessment on the trails and their affect on biodiversity and ecosystems. Each side (The DNV and the NSMBA)seems to think that the other should pay for this. This was evident at a regular council meeting I attended earlier this year. Clr .Alan Nixon and I think maybe Clr. MacKay-Dunn were the only councillors that leaned towards having this assessment.

Anonymous said...

I attended a meeting at Lynn Valley Library tonight about the densification of our community. Excellent presentation by someone who actually cares and knows about the environmental problems associated with increased traffic.

When I got home I received a phonecall from a friend who had attended the meeting at the Holiday Inn regarding the densification of Lower Lynn.

Relevant? Yes, why were these two meetings put on at the same time? By the DNV?

We can't be at both meetings.

The Lower Lynn escapade is frightening. They want 6000 new cars in there.

Point being that the DNV is pro development.

Anonymous said...

I should add that the mountainbikers and longboarders, just like the developers, are ruining our livability in the DNV.

There is no political will to stop these people.

Anonymous said...

We are continually getting screwed by the District. I'll bet that we do not even know the half of it. Sad thing. No more Ernie Crists on Council to expose the wheelings and dealings behind the scenes.

Anonymous said...

Excerpt from "Most dangerous sports on our trails (06/17/2012)"

In looking at statistics for the past ten years, the most dangerous sport or our trail users is bicycling. Horseback riding comes in about tenth.

The most common injury is a head and neck injury, regardless of helmet use. Helmets reduce the incidence of more serious injury or death.

Parents should be especially concerned about bike racing, where there is the highest incidence of sport injury, even over football.

There is a reason there are mt. bike speed limits on multi-use trails! Most people think the speed limits are there for the safety for other trail users, but many of the injuries reported is either a solo bike or two bikes running into each other at high speed.

The vehicle code and State Park rule states that the speed limit for bicycles on MULTI-USE trails is 15 MPH, unless encountering pedestrians or equestrians, or a blind curve or hill, then 5 MPH.

Mt. bikes are to yield to foot traffic, including hikers, runners, horses.

If these limits are observed on multi use trails, there is a greatly reduced chance of bike-related injuries.


Anonymous said...

I don't see too many horses in Lynn Valley.

Anonymous said...

John, why was the comment condemning Anon Wednesday, June 27, 2012 3:31:00 PM for wishing a mountain biker being killed removed? That is almost as offensive as the person wishing someone to die. I'm surprised and disappointed in you for allowing that shameful comment to remain. Are you running such a polarized blog that it's okay for one of your cheerleaders to wish another human being dead for merely participating in a legal activity which you and your friends disagree with? I'm sorry, but that's pretty low. You should be ashamed of yourself.

John Sharpe said...

Anon Thursday, June 28, 2012,

You are jumping to some big assumptions. I don't condone the comment of Anon, Wednesday, June 27, 2012 3:31:00 PM. Wishing harm on anyone is wrong.

I don't remember seeing the comment you are referring to. I did remove one of my own comments because of typos and then re-commented and MAY have removed that comment also in error, but if I did it was unintentional. I invite the anonymous blogger to re-comment.

I don't disagree with mountain biking. I do however have some concerns with regard to the environment as it relates to the activity of mountain biking.

Anonymous said...

I'm the one who made the comment that was deleted. The point is, why is the comment about wishing for the death of a cyclist allowed to stay? As for my assumptions, they aren't really. This blog is decidedly anti-anything in its slant. :/

Mocrael said...

If something does not fit in with a government's agenda, it does not matter whether what they do is the right or wrong thing to do. It matters that the off-road lobby has political clout with a lot of corporate support(both moto-heads and mountain bikers):

In Alberta:
A government-commissioned poll, obtained by CBC News, shows Albertans overwhelmingly support a helmet-safety law for all-terrain vehicle users.

But Alberta Transportation shelved the poll, and draft helmet-safety legislation, back in 2008 and has no plans to introduce legislation despite a mounting ATV injury and death toll.

The poll, conducted by Leger Marketing, found 84 per cent of Albertans supported a mandatory helmet-use law. Another 61 per cent supported a minimum age of 16 for ATV riders.

“This government covers up any information that doesn’t fit its agenda,” Calgary Liberal MLA Dr. David Swann said...(con't)


Government cover-up? No kidding! "Liability concerns" get shelved in order to appease the off-roaders. After all, the government has yours and my money to throw around. And that is where the lawyers come in to find all the loopholes the government can jump through. We can't expect fair play. That is my two cents worth.

Anonymous said...

Yes, and we all know what 2 cents is worth. This is your annual gripe, I guess the mountain bikers are starting to park on your street again for the summer season of riding. The local government has an agenda, as do you!

John Sharpe said...

The point is I believe in free speech. (I did not remove the comment) and the point is put the comment back if you feel it needs to be there to counter the "death of a cyclist" comment.

Anonymous said...

So you're passively condoning such comments on this blog? Really? As the blog owner, don't you think you have a responsibility to the tone of this blog? Now shouting for our opponents death is acceptable?

Mocrael said...

Copy and paste this Vimeo video to see how DNV and the NSMBA celebrated the past weekend on that same stretch of DNV-sanctioned, "sustainable" Ladies Only Trail:

I guess we can't legislate stupidity. There are just too many of "them". It doesn't look very intelligent, does it? Go figure?

John Sharpe said...

Not condoning just don't believe in censorship. It was a general reference. Although distasteful it was not defamatory, derogatory, attacked or targeted a person specifically, etc., Had it done so it would be off the blog.

Again, re-post your comment. It is welcome. Had your comment not been removed (mysteriously), we would would not be having this discussion.

Anonymous said...

The comment is in no way problematic. This whole thread deals with liability and liability issues are usually associated with injury or death.

Anonymous said...

Occupiers, Cyclists, and One-Eyed Jacks
February 13, 2007
David Hay

"But statutes, such as the Occupiers Liability Amendment Act, are simply an articulation of society's rules, not society's principles, and accordingly they are seldom, if ever, broad enough to encompass all conceivable situations. Therefore, cases involving claims by injured parties against occupiers almost always involve a consideration of common law principles - in the perilous world of occupiers liability, the common law is a mess...
...Assuming the North Shore Mountains fall within an immune category, unless you can demonstrate you were intentionally harmed, a most unlikely thing in my view, you will be completely on your own, and that's fine, as long as you know that, and as long as you expect that before going in. There will be no recovery in negligence, no duty to warn of hazards. There is no general obligation based on foreseeability. If you are seriously injured there is no "system" to look after you or your family beyond the basic healthcare, GF Strong, and an extremely modest indexed CPP benefit.

More at: http://www.rbs.ca/newsroom-publications-Wild-game-of-occupiers-liability.html

Anonymous said...

You didn't end your quotes.

We know this.

Anonymous said...

I'm sure you know all this. The point being that many self-serving politicians talk about things like "Ernie Crist is like a dog barking, after awhile you ignore it."

Many issues are being ignored. There is a sense of being inured to the problem.

Guess what! The issues don't go away. Only the public's ideation that they actually have a voice.

We have to do something about that and this blog is a good start.

John Sharpe said...

Also to Anon Thursday, June 28, 2012 6:21:00 PM,

"This blog is decidedly anti-anything in its slant. :/"

I invite you to become a poster so you can provide your slant on the issues of North Vancouver. All I need is an email address where I can send the invitation. This invitation goes out to anyone who is interested in posting their views and stories here on the little blog that was: northvancouverpolitics.com



Mocrael said...

Recent Study Takes Aim at Mountain Bike Injuries...Timely article

The Epidemiology of Mountain Bike Park Injuries at the Whistler Bike Park, British Columbia (BC), Canada
Wilderness & Environmental Medicine
(Volume 23, Issue 2 , Pages 140-145, June 2012)

"Mountain bikers incurred many injuries with significant morbidity while riding in the Whistler Mountain Bike Park in 2009. Although exposure information is unavailable, these findings demonstrate serious risks associated with this sport and highlight the need for continued research into appropriate safety equipment and risk avoidance measures."
No kidding? I believe that helmets and other "safety equipment" cannot help protect against extreme mountain biking antics(as tragically proven, earlier, on Cypress)

Anonymous said...

Mocreal, mountain biking can be dangerous just like many sports or occupations. If you don't like the risk, don't participate. You don't get to dictate what others do.

Mocrael said...

Anon 11:05 - What gives you the right to tell me what I can't "dictate"? When mountain bikers take over a public forest and build their amusement park structures on it, they have inconsiderately taken away other people's right to enjoyment of the same public forest.

As for risk -- I should not have to quit hiking the trails because I do not wish to risk being hit by a speeding mountain bike (having been hit once before, and too many close calls).

Even with all the injuries, mountain biking is best kept inside private recreational resorts like Whistler Bike Park, not sprawled across public forests and parks, like on the North Shore.

Simply put, mountain biking, "NSMBA-style", is a selfish sport.

Anonymous said...

So the whole forest is for your use only? You need to learn how to share the PUBLIC resource. There are plenty of trails that you can hike where mountain bikes aren't permitted. How entitled you must feel you are to feel you can dictate to others participating in a perfectly legal activity.

Anonymous said...

"When mountain bikers take over a public forest and build their amusement park structures on it, they have inconsiderately taken away other people's right to enjoyment of the same public forest."

Anonymous said...

So, the whole forest needs to be set aside for hikers? What part do you deem acceptable for other users to use? One area is being used by mountain bikers. There are plenty of other areas you can hike if you can't get along with the others who have just as much right to be there as you. Don't blame all mountain bikers with bad behaviour. There are plenty of hikers and equestrians who behave poorly. Once you stop feeling like you own the place and chill, you just might find you enjoy it a lot more. Stop looking for reasons to be upset. Life's too short.

Mocrael said...

Sound familiar?
MTB vs ATV - Quads destroy Bike trail(in the Woodlot, Mission, BC)
(these mountain bikers sound a lot like "whining hikers")

Who says what the ATVers were doing on those bike trails was wrong?

Everything is relative. Our public forest trails should become all-inclusive. May the biggest vehicle "win". Do you agree, Anon?

Would you like to see ATVs on Bobsled Trail, or Ladies Only Trail on Fromme? Why not? What would Digger, or DNV think? Where, then, do we draw the line? I think we have already crossed it. Adios!

Anonymous said...

Watched the http://youtu.be/W_L91CK7ChA...pretty stupid.... typical of the mountain bike mentality

Anonymous said...

What about the upgrade of Grant Connel? More tennis courts encroaching on environmentally sensitive areas? Why should we the taxpayers pay money for these special-interest groups at the expense of our livability and the future of our community where we own property?

Mocrael said...

There is a new "sport" in town,via mountain biking and road racing...

I call it the "STRAVA Effect"! Mountain Bikers (and road bikers) racing against themselves via GPS. How very narcissistic! But it is here in Metro Vancouver.

The introduction of GPS racing has given riders new motivation to break the rules, and ride illegal trails, or "cut" their own.

This IMBA article and comments should give you an idea of the monster unleashed by DNV's NS Overlord GPS Race venue in August (2nd year! FLAIK GPS, not STRAVA, but same idea):

The "STRAVA effect" encourages more scofflaw behaviour from riders. Imagine someone racing down a multi-use trail in order to beat his own, or another STRAVA poster's, record. Just because someone "invents" it, does it always mean we have to indulge it? DNV seems to think so...

Now we have to contend with dodging idiotic mountain bikers on our trails, along with those road racers dialed up in "GPS mode"?:

What is the liability in that?

Mocrael said...

Liability for DNV recreational trails?
"STRAVA Question"

An out of country visitor publishes his STRAVA data after bombing on the trails on Fromme. Is this the kind of "tourism" DNV wishes to promote?:

A family is suing STRAVA over wrongful death, in the USA -
(and an elderly pedestrian being run down and killed by a STRAVA-addled road racer)

So, why is DNV sanctioning GPS racing on its forest trails via the "NS Overlord GPS Race", once again, this year? Mayor Walton proudly rolled down Mtn. Hwy, as its official Parade Marshall last year.

Shall I continue...?

Anonymous said...

McConnell Tennis Court development is further proof that the District doesn't give a damn about wetland conservation.

Mocrael said...

Here is another issue surrounding mountain biking nobody ever thinks about...
North Shore Mountain Biking Forums
- The Shore
- - Trail building injuries (http://bb.nsmb.com/showthread.php?t=149543)

This is the conundrum as presented by mountain bikers on this forum:

Trail building injuries - 07-04-2012

"So, what about trail karma?
I have just injured my back while doing trail work and this is my 3rd injury in 18 months that has me off my bike from building trails. I think I'm ready to quit."

"Digger broke his wrist a while back from trail building..."

"The wife and I both got tennis elbow (Lateral epicondylitis) trail building and actually both did it on the same day. Sure took a fricken long time for it to heal...about 8 months."

"Fell on a freshly sharpened chainsaw bar while trail clearing. 17 stitches across my palm/index finger :cry:"
So, it seems that it is not only injuries from riding that keeps Lions Gate Hospital hopping...but the trail building, itself. DNV has sanctioned it because they cannot maintain the trails themselves. Quite a conundrum, mountain biking. Ride and Build?; Ride or Build?; Do neither...

Anonymous said...

Mocreal, your whining on this blog seems to be 'preaching to the choir', which is probably made up of half a dozen chronic complainers. Take it to the editorial pages of the local papers and see how much support you get on this obsession of yours. Yes, consider this a challenge.

Anonymous said...

She has taken it to the editorial pages and has been published many times.

Mocrael said...

Challenge, Anon? Now let's see: I've been published in local, national and international newspapers;interviewed on local and national televised news; and will be in an upcoming documentary...on our favourite subject. Is that challenging enough for you?

So what have you done, Anon, except to gripe about my "whining"? At least I have had the guts to go public with my concerns, and not hide behind an alias or "Anonymous". Now, why don't you man up and introduce yourself on this blog. Thank you.

--Monica Craver--(aka Mocrael--click on the link)
(PS. As I wrote this, I watched a mischief of mountain biking rugrats with some "MTB Kiddie Kamp" pour out of that park across my street, I have urged protection for, led by a couple mountain biking big rats. These young impressionable children do not understand the damage they are doing to the environment riding and building. They are being taken advantage of, as they will someday learn they have soiled their own nests -- the natural capital that becomes so expensive when damaged, because man can never mimic the perfection of nature. We need healthy and well-functioning forests for the future, especially with the advent of climate-change. The damage done by riding and trail building is selfishly taking that away from those children, grandchildren, and their future. Play today, pay tomorrow)

Anonymous said...

Published many times without getting your way. It would appear that you don't have enough support in your opinion to influence change. Maybe its time to focus your attention elsewhere. Would you be this concerned about the subject if bicyclists weren't parking on "your" street?

Anonymous said...

Why is Anon 12:23 afraid to identify himself herself?

John Sharpe said...

I agree why don't you 'man up' Anon. If your'e so confident with your argument, why don't you show your face? Mocrael is confident with hers and she's gone public.

Anonymous said...

Who is Anon Friday, July 06, 2012 4:58:00 PM?

I have no political aspirations and see no point in identifying myself. My opinion isn't any less valid because of this. My ego doesn't need the attention that others on here seem to thrive on.

By identifying herself, has mocreal really accomplished anything besides coming across as a fun sponge? If her view was the majority view, there would be no mountain bikes in those hills. However we do live in a democracy and until the majority speaks out against this activity, it will continue. Mocreals obsession with this issue is nothing but sour grapes because bike riders dare to use the trails adjacent her home.

Anonymous said...

Anon: Are you a lurker on this thread posting? You sound like one.

Mocrael said...

We have to applaud the collective ignorance of the BC (Mtn)Bike Race, as they rode through the muddy, water-logged trails in Campbell River like a herd of cattle. We have the same kind of mentality on the rain soaked North Shore trails. Isn't mudbogging considered a crime in BC? Tsk!

BC Bike race leaves mess of trails

Friday, July 6, 2012 - 10:34 AM
By Kelly Linehan
Campbell River

The BC Bike Race has come and gone but the muddy trails remain.

Five hundred riders from across the world took on the seven-day challenge that covers ground across the province...
While the event may have been a success, it has left the trails in a muddy state of disarray.
“The trails have really received a lot of damage and they’re in pretty tough shape right now,”...


Mocrael said...

The "Squamish Test of Metal" mountain bike race idiocy captured in a photo and on a blog:

"A heinous day of rain 13 deg celsius , MUDDDD and slippery trails. I rode to a 9th place overall women’s pro, just a test of willpower and ability to ride without being able to see.From the beginning the mud caked on my glasses and fog make it tough to rip at full speed, then my favorite Ryder Vela glass fell off into the mud… so it was a half blind race the entire way. Mud was in every crevice and yes we were really even muddier than this photo attests!
Imagine the dire conditions of the trails ridden roughshod by 800 fools?

Once again Mudbogging is illegal in BC, but it only applies to the motoheads, it seems. This law needs to be extended to mountain biking, also. There seems to be a blind spot when it comes down to the mass of ecological damage being done by mountain bike races such as these.

Mocrael said...

Little children are honest:
Bella complained about the rocks in the trail. Obviously this is no place to learn how to ride a bike.

This video says it all:
Bella on Empress Bypass (on Seymour) June 6, 2012

And one last word. Bikes/mountain bikes are considered to be vehicles according to the Motor Vehicle Act, and should be treated as such. Extreme mountain bikers become indignant when anybody compares them to the motoheads, but even International Mountain Bike Association (IMBA) will align themselves with both the hikers, or the motoheads, depending on what side of the coin they are playing with. The simple fact is mechanized mountain bikes are akin to motorized dirt bikes.

I guess it will have to get a whole lot worse before it gets better. But our chidren, like little "Bella" will be paying for the sins of more than a few mountain bikers and motoheads in our forests and wetlands. Now that is a liability.

Anonymous said...

I can't wait for my next trip to Vancouver so that I can ride the trails on the shore once again. However, after reading this blog, it sounds like the residents of North Van don't really want cyclists in their city. On this trip, I'll make sure to get a hotel in Vancouver or Burnaby. Probably even pick up my breakfast and morning coffee there too. Maybe bag a lunch and then have dinner on the other side of the bridge as well. I know there are some great places to eat in North Van but I remember there being some really great restaurants on Hastings. Rather than shop at any of the bike shops while I'm there, I'll be sure to buy any extra parts I may need online and bring them with me. Too bad because I'd really like to spend my hard earned money as close as possible to where the trails are. It would be nice to be able to put some money back into a community that has such a world class trail system and welcomes cyclists.

Vanessa Bailey said...

The city should just hand the trails over to a private enterprise. Problem(s) solved.