INTRODUCED BILL FORM

H. B. 4119

(By Delegates Cann, Kominar, Michael, H. White, Browning,
Craig, Stalnaker, Poling, G. White and Azinger)
[Introduced January 26, 2006; referred to the
Committee on Government Organization then the Judiciary.]

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 ATV 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.