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ATV Liability Issues

Vermont ATV Sportsmen's Association (VASA) aims to create a huge statewide network of ATV trails, much like Vermont Association of Snow Travelers' (VAST's) snowmachine trails. But the ATV group is encountering a difficult problem: even landowners that allow VAST trails on their land in winter balk at the idea of hundreds of heavy, knobby-tired ATVs racing across their land without the protection of snow cover. VASA's "solution" is to use Vermont's unpaved roads to fill in the many missing links in their hoped-for trail system. As a result, Selectboards in increasing numbers of towns are being asked by local VASA chapters to open their roads to ATVs. When the question of the town's potential liability arises (as it surely should), the likely response is that "VASA now has liability insurance."

Not so fast. VASA's insurance policy, it appears, does not adequately protect towns, nor does it protect landowners who allow ATV trails on their land.

The following is excerpted from a 6/22/04 letter from Jeff Williams, Marketplace Insurance Center, one of two companies that currently provide liability insurance to Vermont towns. The letter was sent to a Vermont Town Selectboard, in response to questions about the town's liability if its roads are opened to ATVs. The letter also addresses the liability of private landowners who allow ATVs on their land.

If your Selectboard is asked to open town roads to ATVs, be sure to bring up the issues described below.


Questions To Ask

What kind of risk exposure would a Town take on if it allowed ATVs to use Town roads as part of a trail system? "There are still only two insurers providing cover for the unique liability issues facing our municipalities. Our school districts have two or three. Our sheriffs and other law enforcement, one. For that reason, I almost always suggest that engaging in any new or continuing risk activity be avoided. Jeopardizing insurance coverage that is difficult and much more expensive to replace is very risky in Vermont."

What kind of wording should the ATV club's insurance policy contain that would protect the Town? "The only certificate wording I would recommend to the Board would contain the following wording, "As an additional named insured the Town of [ ], all of its citizens, heirs, successors, public officials, or assignees..." ".

Would VASA's insurance coverage protect the Town from being sued? "In the presence of such a certificate [of insurance], the Town will still be sued. [But] At least there is a layer of liability coverage between the Town cover and the bad event."

What about the private landowner? If a landowner allows an ATV trail to cross his or her property, do they open themselves up for any liability? "We have been made aware of a new developing liability related to the increasingly aggressive water and air quality issues in our state and others. Simply put, rutting of roads caused by aggressive operation on wet surfaces is resulting in siltation of streams and run off motor fuels and lubricants. The shared liabilities of the landowner (private or municipal) and the ATV operator are just developing. Vermont is in the fray along with several other states. This one is really scaring us. Once the damage is done and discovered -- left holding the bag is landowner or public entity since the bad guys are long gone."

Jeff Williams
Marketplace Insurance Center
Essex Jct., VT 05452


Additional Considerations

Sovereign Immunity

The protection offered to towns through the doctrine of sovereign immunity is questionable. VASA claims towns cannot be sued because they are protected by sovereign immunity. Sovereign immunity provides protection from liability as it applies to "traditional governmental function" such as the building and maintenance of municipal highways. There is no case law to determine whether towns can be found liable for injury and property damage caused by ATV traffic, but - according to the Vermont Water Quality Division - towns can be held liable for restoration and fines if damage caused to waterways can be related to the town's express permission to use town roads and trails.

Statutory Limitations

Vermont State Statute protects the town or any private property owner from being sued by an ATV rider if they are injured. (No…landowner shall be liable for any property damage or personal injury sustained by any person operating or riding as a passenger on an all-terrain vehicle…23 V.S.A. 3506(c)). But is the town protected from a liability suit if a person is injured who is not the ATV driver or a passenger on the ATV? Here's a scenario that has not been settled by case law: A citizen is driving down a town road. At a trail crossing or along a stretch of road that is part of the trail, an ATV darts out in front of the citizen, the citizen swerves to avoid a collision, tumbles down an embankment or slams into a tree, and is seriously injured. The ATV is long gone and cannot be identified. Who is liable for the damages and injury?

Too many unknowns. The legislature may have exempted the town or a private landowner from liability for injury sustained by the ATV rider, but it does not appear to exempt the town - or its citizens - from a myriad of other liabilities. ATVs crossing or traveling along town roads can cause accidents that injure others. ATVs can cause environmental damage on private property or town property that violates State water protection statutes, which can result in huge fines. ATVs can cause unreasonable interference with the use and enjoyment of property - which is grounds for a lawsuit - and because the town is facilitating this activity, the town can be sued right along with the ATV club. Does your town want to bear the cost of a law suit and/or increased insurance rates?