Senate Bill No. 281
(By Senators McCabe, Bowman, Chafin, Helmick, Oliverio,
Plymale,
Prezioso, Unger, Facemyer, McKenzie, Minear, Jenkins and Deem)
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[Introduced January 26, 2006; referred to the Committee
on Transportation and Infrastructure; and then to the Committee
on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §20-15-1, §20-15-2,
§20-15-3, §20-15-4, §20-15-5 and §20-15-6, all relating to
creating the All-Terrain Vehicle Responsibility Act.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §20-15-1, §20-15-2,
§20-15-3, §20-15-4, §20-15-5 and §20-15-6, all to read as follows:
ARTICLE 15. ATV RESPONSIBILITY ACT.
§20-15-1. Legislative findings.
The West Virginia Legislature finds that trail-oriented
recreation for off-highway vehicle enthusiasts significantly
contributes to the economy of West Virginia and is enjoyed by a large and growing number of residents and nonresidents alike.
Since it is recognized that there are inherent risks in the
operation of such off-highway vehicles which should be understood
by each operator and which cannot be eliminated by authorized
outfitters, it is the purpose of this article to define the areas
of responsibility and affirmative acts which authorized outfitters
must perform or risk being liable for loss, damage or injury
suffered by participants, and to define the risk which the
participants expressly assume and for which there can be no
recovery.
§20-15-2. Definitions.
In this article, unless the context clearly requires a
different meaning, the terms used in this section have the
following meanings:
(1) "All-terrain vehicle" or "ATV" means any motor vehicle
designed for off-highway travel on three or more low pressure
tires.
(2) "Motorcycle" means any motor vehicle having a seat or
saddle for the use of the rider and designed to travel on not more
than two wheels in contact with the ground.
(3) "Authorized outfitter" or "licensee" means a commercial
outfitter, which is a person, partnership, limited liability
company ("LLC"), corporation, other organization, or any
combination thereof, who, operating from any temporary or permanent camp, private or public lodge, or private home within this state or
from without the state, provides for monetary profit or gain,
guided tours or the rental of all-terrain vehicles or motorcycles
for use on assigned lands and as authorized and licensed by the
Hatfield-McCoy Regional Recreation Authority.
(4) "Participant" means any person using the services or
equipment of an authorized outfitter or licensee, including
passengers of an all-terrain vehicle or motorcycle.
§20-15-3. Duties of authorized outfitters or licensees.
Every authorized outfitter or licensee shall:
(1) Mark and maintain all equipment and vehicles in his or her
possession in a condition as provided by the manufacturer such that
the equipment and vehicles are safe to operate or use as intended
and recommended by the manufacturer;
(2) Provide facilities, equipment and services, conforming to
safety and other requirements established by the rules promulgated
by the Hatfield-McCoy Regional Recreation Authority;
(3) Provide facilities, equipment and services as advertised
or as agreed to by the authorized outfitter or licensee and the
participant;
(4) Provide protective helmets which are size appropriate and
which meet the current performance specifications established by
the American National Standards Institute standard, z 90.1, the
United States Department of Transportation federal motor vehicle safety standard no. 218 or Snell safety standards for protective
headgear for vehicle users as defined by subdivision (5),
subsection (a), section one, article one, chapter seventeen-f of
this code, to all persons using all-terrain vehicles or
motorcycles;
(5) When rented by any person under the age of eighteen years,
all-terrain vehicles or motorcycles owned by the authorized
outfitter or licensee that are appropriate to the minor's age and
size as recommended by the manufacturer;
(6) Not rent or lease any all-terrain vehicles or motorcycles
to any person under the age of eighteen years or allow any
owner-operated all-terrain vehicle or motorcycle on any guided tour
when operated by any person under the age of eighteen years without
first obtaining a written statement, signed by the minor's parent
or guardian certifying that:
(A) Any machine owned and operated by the minor will be of a
model that is recommended by the manufacturer as appropriate to the
minor's age and size;
(B) All rules governing the use of the vehicle and the
Hatfield-McCoy Recreation Area have been explained to the minor in
sufficient detail to enable the minor to abide by the rules; and
(C) Any minor under the age of sixteen will remain under the
supervision of and the sight of the parent or guardian at all
times;
(7) Make reasonable and prudent efforts to inspect any
all-terrain vehicles or motorcycles owned by the authorized
outfitter or licensee, to assure that they are in proper working
condition and are safe for use; and
(8) Make certain that every guide offered to participants by
the authorized outfitter or licensee has a current standard first
aid training certificate and CPR certificate issued by the American
Red Cross or equivalent and ATV safety training through the ATV
Safety Institute.
§20-15-4. Duties of participants.
All participants:
(1) Shall comply with any requirements established by law,
including those in chapter seventeen-f, article one, section one of
this code which defines those acts prohibited by operators of
all-terrain vehicles, when operating such a vehicle or riding on
one as a passenger, and those rules or regulations established for
use of the Hatfield-McCoy Recreation Area;
(2) Shall expressly assume the risk of and legal
responsibility for any injury, loss or damage to person or property
which results from participation in operating any all-terrain
vehicle or motorcycle owned by the authorized outfitter or
licensee, and caused by any of the following: Variations in
terrain, slope or angle of terrain; surface or subsurface
conditions; rocks, trees or other forms of forest growth or debris; collisions with signs, markers, width restrictors, culverts,
bridges, pipes, equipment, vehicles or any other objects or
fixtures used in trail management, maintenance, construction or
development; collisions with signs, markers, pipes, equipment,
vehicles, or any component thereof used in natural resource
maintenance, development, or extraction; collisions with electrical
transmission poles, towers, lines, guy wires or any component
thereof. Each ATV and motorcycle rider shall have the sole
individual responsibility for knowing the range of his or her own
ability to negotiate any slope or trail, and it shall be the duty
of each ATV and motorcycle rider to operate within the limits of
the participant's own ability, to maintain reasonable control of
speed and course at all times, to heed all posted warnings, to
operate only on trails designated by the Hatfield-McCoy Regional
Recreation Authority and to refrain from acting in a manner which
may cause or contribute to the injury of any person. If while
actually riding an ATV or motorcycle, any participant collides with
any object or person, the responsibility for such collision shall
be solely that of the participant or participants involved and not
that of the authorized outfitter or licensee;
(3) Shall be solely responsible for knowing the range of his
or her own ability to operate and control a particular all-terrain
vehicle or motorcycle and act within the limits his or her own
ability;
(4) Shall maintain reasonable control of the all-terrain
vehicle or motorcycle he or she is operating at all times;
(5) Any person under the age of sixteen years shall remain
under the direct supervision and within sight of a parent or
guardian both of whom must otherwise comply with state or federal
laws and any rules or regulations promulgated thereunder;
(6) After an accident, may not leave the area where the
accident took place without leaving personal identification,
including his or her name and address, or without notifying the
proper authorities, or without obtaining assistance when he or she
knows or reasonably should know that any other person involved in
the accident is in need of medical or other assistance;
(7) Where a participant is a lawful passenger, that
participant may not distract or perform any act which might
interfere with the safe operation of the all-terrain vehicle or
motorcycle of which he or she is a passenger;
(8) May not make any alterations or tamper with the
all-terrain vehicle or motorcycle he or she is operating or of
which he or she is a passenger in any way which would interfere
with the continued safe operation of that machine;
(9) Shall obey any and all rules or instructions announced by
the authorized outfitter or licensee, with regard to the operation
of the all-terrain vehicle or motorcycle he or she is operating;
and
(10) Shall wear any and all safety equipment provided by the
authorized outfitter or licensee, or which might otherwise be
required by law.
§20-15-5. Liability of authorized outfitters and licensees.
(a) Any authorized outfitter or licensee is liable for injury,
loss or damage caused by failure to follow the duties set forth in
section three of this article where the violation of duty is
causally related to the injury, loss or damage suffered.
(b) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused by the negligence of any person who
is not an agent or employee of such operator, nor shall an
authorized outfitter or licensee be liable for any injury, loss or
damage caused by a participant's violation of any duty described in
section four of this article.
(c) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused solely by the participant's failure
to negotiate the terrain or environment over which or through which
the participant is operating his or her all-terrain vehicle or
motorcycle.
(d) Every authorized outfitter or licensee shall carry public
liability insurance in limits of not less than three hundred
thousand dollars per occurrence.
§20-15-6. Liability of participants.
Any participant is liable for injury, loss or damage resulting from violations of the duties established in section four of this
article where the violation of duty is causally related to the
injury, loss or damage suffered.
NOTE:
The purpose of the bill is to create the ATV
Responsibility Act.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This is an interim bill that was proposed for introduction in
the 2006 Legislative Session by the Joint Commission on Economic
Development.