COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 470
(By Senators Kessler, Chafin, Plymale and Stollings)
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[Originating in the Committee on the Judiciary;
reported March 25, 2009.]
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A BILL to amend and reenact §20-15-1, §20-15-2, §20-15-3, §20-15-4,
§20-15-5 and §20-15-6 of the Code of West Virginia, 1931, as
amended, all relating to regulating all-terrain vehicles and
utility-terrain vehicles on the Hatfield-McCoy Trail;
standardizing the definition of "all-terrain vehicle";
defining and regulating "utility-terrain vehicle"; defining
and regulating "motorcycle"; and making stylistic and
technical corrections.
Be it enacted by the Legislature of West Virginia:
That §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20-15-5 and
§20-15-6 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 15. ATV, UTV AND MOTORCYCLE RESPONSIBILITY ACT.
§20-15-1. Legislative findings.
The West Virginia Legislature finds that trail-oriented
recreation for off-highway vehicle enthusiasts offered by the
Hatfield-McCoy Regional Recreation Authority 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
the Hatfield -
McCoy Regional Recreation Authority or its authorized outfitters or
licensees, 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.
The terms in this article have the following meaning, unless
the context clearly requires a different meaning:
(1) "All-terrain vehicle" or "ATV"
shall mean means any motor
vehicle
fifty-two inches or less in width, having an unladen weight
of eight hundred pounds or less, traveling on four or more low
pressure tires with a seat designed to be straddled by the rider,
designed for or capable of travel over unimproved terrain designed
for off-highway use and designed to travel on not less than three
low-pressure tires, having a seat designed to be straddled by the
operator and handlebars for steering control and intended by the manufacturer to be used by a single operator or by an operator and
no more than one passenger.
(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 "Authorized outfitter"
or "licensee" means a commercial outfitter, which is a person,
partnership, limited liability company ("LLC"), corporation, other
organization, or any combination thereof, licensed by the Hatfield-
McCoy Regional Recreation Authority, who operates from any
temporary or permanent camp, private or public lodge, or private
home, who provides guided tours or the rental of all-terrain
vehicles, utility-terrain vehicles or motorcycles for use on
assigned lands for monetary profit or gain.
(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, licensed by the Hatfield-McCoy Regional
Recreation Authority, who operate from any temporary or permanent
camp, private or public lodge, or private home, who provide guided
tours or the rental of all-terrain vehicles or motorcycles for use
on assigned lands for monetary profit or gain "Low-pressure tire"
means every tire in which twenty pounds per square inch or less of
compressed air is designed to support the load.
(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 "Motorcycle" means any motor vehicle manufactured with no more than two wheels
and having a seat or saddle for the use of the operator.
(5) "Participant" means any person using the services or
equipment of an authorized outfitter or licensee, including
passengers of an all-terrain vehicle, utility-terrain vehicle, or
motorcycles. facilities of the Hatfield-McCoy Regional Recreation
Authority.
(6) "Utility-terrain vehicle" or "UTV" means any motor vehicle
with four or more low-pressure tires designed for off-highway use
having bench or bucket seating for each occupant and a steering
wheel for control.
§20-15-3. Scope.
The provisions of This article shall only apply to
the
Hatfield-McCoy Regional Recreation Authority, authorized outfitters
or licensees licensed by the Hatfield-McCoy Regional Recreation
Authority and any participant as defined in section two of this
article.
§20-15-4. Duties of authorized outfitters or licensees.
(a) Every authorized outfitter or licensee shall:
(1) Mark for identification purposes all equipment and
vehicles used in the business;
(2) Maintain all equipment and vehicles used in the business
in such condition that the equipment and vehicles are safe to
operate or use as intended and recommended by the manufacturer;
(3) Provide facilities, equipment and services conforming to safety and other requirements established by the rules promulgated
by the Hatfield-McCoy Regional Recreation Authority;
(4) Provide facilities, equipment and services as advertised
or as agreed to by the authorized outfitter or licensee and the
participant;
(5) 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,
utility-terrain vehicles or motorcycles;
(6) Provide all-terrain vehicles or motorcycles
provided by
the authorized outfitter or licensee which are age and size
appropriate as recommended by the manufacturer;
(7) Make reasonable and prudent efforts to ensure that
participants
utilizing the facilities, equipment or services of the
authorized outfitter or licensee have received the safety training
required by the provisions of the legislative rule for the use of
the Hatfield-McCoy Regional Recreation Area;
(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 its equivalent and ATV safety training through the ATV Safety Institute;
(9) Make certain that employees carry first aid kits when
acting as guides; and
(10) Make known to any participant
utilizing the facilities,
equipment or services of the authorized outfitter or licensee any
dangerous condition as to trail lands, facilities or equipment to
be traversed or used which is known by the outfitter or licensee.
(b) An authorized outfitter or licensee may not rent or lease
an all-terrain vehicle or motorcycle to a 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:
(1) Any machine to be operated by the minor or his
or her
parent or guardian is of a model that is recommended by the
manufacturer as appropriate to the minor's age and size;
(2) 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
(3) Any minor under the age of sixteen will remain under the
supervision of and the sight of the parent or guardian at all
times.
(c)
An authorized outfitter or licensee shall provide a
participant with written notification of his or her duties as
prescribed in section five of this article, and the participant
shall sign the notification and shall be kept on file by the outfitter or licensee for not less than five years An authorized
outfitter or licensee may not rent or lease a utility-terrain
vehicle to any person who is not at least sixteen years of age and
in possession of a valid driver's license.
(d) An authorized outfitter or licensee shall provide a
participant utilizing the facilities, equipment or services of the
authorized outfitter or licensee with written notification of his
or her duties as prescribed in section five of this article. The
participant shall sign the notification prior to using the
equipment. The signed notification shall be kept on file by the
outfitter or licensee for not less than five years.
§20-15-5. Duties of participants.
(a) All participants:
(1) Shall comply with any requirements established by law,
including those in section one, article one, chapter seventeen-f of
this code which defines those acts prohibited by operators of
all-terrain vehicles
and utility-terrain vehicles;
(2) Shall comply with the rules or regulations established for
use of the Hatfield-McCoy Recreation Area;
(3) Shall, as to the
Hatfield-McCoy Regional Recreation
Authority, operator authorized outfitter or licensee, expressly
assume the risk of and legal responsibility for any injury, loss or
damage to person or property which results from participation in
operating an all-terrain vehicle,
utility-terrain vehicle or
motorcycle owned by the authorized outfitter or licensee, and
caused by any of the following:
(A) Variations in terrain, slope or angle of terrain;
(B) Surface or subsurface conditions including: Rocks, trees
or other forms of forest growth or debris;
(C) 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;
(D) Collisions with signs, markers, pipes, equipment, vehicles
or any component thereof used in natural resource maintenance,
development or extraction;
(E) Collisions with electrical transmission poles, towers,
lines, guy wires or any component thereof;
(4) Shall obey all rules or instructions announced by the
Hatfield-McCoy Regional Recreation Authority, authorized outfitter
or licensee, with regard to the operation of the all-terrain
vehicle or motorcycle he or she is operating; and
(5) Shall wear all safety equipment provided by the authorized
outfitter or licensee, or which might otherwise be required by law.
(b) Each participant shall have the sole individual
responsibility for:
(1) Knowing the range of his or her own ability to negotiate
any slope or trail;
(2) Operating the ATV,
UTV or motorcycle within the limits of
the participant's own ability;
(3) Maintaining reasonable control of speed and course at all
times;
(4) Heeding all posted warnings;
(5) Operating only on trails designated by the Hatfield-McCoy
Regional Recreation Authority; and
(6) Refraining from acting in a manner which may cause or
contribute to the injury of any person.
(c) If while riding an ATV,
UTV or motorcycle any participant
collides with any object or person, the responsibility for the
collision shall be solely that of the participant or participants
involved and not that of the
Hatfield-McCoy Regional Recreation
Authority, authorized outfitter or licensee unless the
Hatfield-
McCoy Regional Recreation Authority, authorized outfitter or
licensee or
his or her their agent caused the collision in a
tortious manner.
(d) After an accident, a participant may not leave the area
where the accident took place without:
(1) Leaving personal identification, including his or her name
and address;
(2) Notifying the proper authorities; and
(3) 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.
(e) 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,
utility-terrain vehicle or motorcycle of which he or she is a
passenger.
(f) 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.
(g) A participant may not make any alterations or tamper with
the all-terrain vehicle,
utility-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.
§20-15-6. 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 four 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 the authorized outfitter or
licensee.
(c) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused by a participant's violation of any
duty described in section five of this article.
(d) 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,
utility-terrain vehicle or motorcycle as described in section five of this article.
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(NOTE: The purpose of this bill is to standardize the
definition of an all-terrain vehicle, to provide a definition and
regulate a utility-terrain vehicle, and to extend duties and
liabilities to the Hatfield-McCoy Regional Recreation Authority.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)