HB5350 H ECON AM #1
Wilkinson 3909
The Committee on Economic Development and Tourism moved to amend the bill on page 1, by striking everything after the enacting clause and inserting in lieu thereof the following:
Unless the context used clearly requires a different meaning, as used in this article:
"Agricultural purposes" means the raising, cultivation, drying, harvesting, marketing, production, or storage of agricultural products, including both crops and livestock, for sale or use in agriculture or agricultural production, or the storage of machinery or equipment used in support of agricultural production;
"Charge" means (A) For purposes of limiting liability for recreational or wildlife propagation purposes set forth in §19-25-2 of this code, the amount of money asked in return for an invitation to enter or go upon the land, including a one-time fee for a particular event, amusement, occurrence, adventure, incident, experience, or occasion which may not exceed $50 a year per recreational participant: Provided, That the monetary cap on charges imposed pursuant to this article does not apply to the provisions of §20-14-1 et seq. of this code pertaining to the Hatfield-McCoy Regional Recreation Authority or activities sponsored on the Hatfield-McCoy regional recreational authority; (B) For purposes of limiting liability for military, law enforcement, or homeland-defense training set forth in §19-25-6 of this code, the amount of money asked in return for an invitation to enter or go upon the land;
"Land" includes, but is not limited to, roads, water, watercourses, rocks, boulders, caves, private ways, and buildings, structures, and machinery or equipment, when attached to the realty;
"Noncommercial recreational activity" does not include any activity for which there is any charge which exceeds $50 per year per participant;
"Owner includes, but is not limited to, a tenant, lessee, occupant, or person in control of the premises;
"Recreational purposes" includes but is not limited to, any one or any combination of the following noncommercial recreational activities: Hunting, fishing, swimming, boating, camping, picnicking, hiking, rock climbing, bouldering, caving, rappelling, slacklining pleasure driving, motorcycle or all-terrain vehicle riding, bicycling, mountain biking, horseback riding, spelunking, nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, aircraft or ultralight operations on private airstrips or farms or otherwise using land for purposes of the user;
"Wildlife propagation purposes" applies to and includes all ponds, sediment control structures, permanent water impoundments, or any other similar structure created in connection with surface mining activities as governed by §22-3-1 et seq. of this code or from the use of surface in the conduct of underground coal mining as governed by that article and any rules promulgated because of the article, which ponds, structures, or impoundments are designated and certified in writing by the director of the Division of Environmental Protection and the owner to be necessary and vital to the growth and propagation of wildlife, animals, birds, fish, or other forms of aquatic life and finds and determines that the premises have the potential of being actually used by the wildlife for those purposes and that the premises are no longer used or necessary for mining reclamation purposes. The certification shall be in form satisfactory to the director and shall provide that the designated ponds, structures, or impoundments may not be removed without the joint consent of the director and the owner; and
"Military, law enforcement, or homeland-defense training" includes, but is not limited to, training, encampments, instruction, overflight by military aircraft, parachute drops of personnel or equipment, or other use of land by a member of the Army National Guard or Air National Guard, a member of a reserve unit of the armed forces of the United States, a person on active duty in the armed forces of the United States, a state or federal law-enforcement officer, a federal agency or service employee, a West Virginia military authority employee or a civilian contractor supporting the military and/or government employees acting in that capacity.
ARTICLE 19. MOUNTAIN BIKE RESPONSIBILITY ACT.
§20-19-1. Legislative findings and purpose.
The West Virginia Legislature finds that our natural resources and topography provide world class opportunities to attract both resident and nonresident mountain bicyclists to this state to enjoy the sport of mountain biking, thereby significantly contributing to the economy of West Virginia. Since it is recognized that there are inherent risks in the sport of mountain bicycling which should be understood by each mountain bicyclist, and which are essentially impossible to eliminate by the trail system operator, it is the purpose of this article to define those areas of responsibility and affirmative acts for which a trail system operator may be liable for loss, damage, or injury, and to define those risks that the mountain bicyclist expressly assumes and for which there can be no recovery. Nothing in this article shall impact other defenses that may be raised by trail system operators against claims asserted by mountain bicyclists .
§20-19-2. Definitions.
The terms in this article have the following meaning, unless the context clearly requires a different meaning:
(1) "Aerial passenger tramway" means any device operated by a trail system operator used to transport passengers by single or double reversable tramway; chairlift or gondola lift; T-bar lift, J-bar lift, platter lift, or similar device; a fiber rope or wire rope tow, or a conveyor.
(2) "Mountain Bicyclist" means any person present at a trail system area under the control of a trail system operator for the purpose of engaging in activities, including, without limitation, bicycling downhill or uphill, jumping on a bicycle, or any other cycling device. "Mountain Bicyclist" does not include a person using an aerial passenger tramway.
(3) "Trail system area" means the property owned, leased, or authorized under a special use permit, and under the control of the trail system operator.
(4) "Trail system operator" means any person, partnership, corporation, or other commercial entity, and its agents, officers, employees, or representatives, who, as part of a commercial, private, or for-profit endeavor, operational responsibility for mountain bicycling activities at any trail system area and the use of an aerial passenger tramway for such purpose. Trail system operator does not include any public or non-profit corporation, and its agents, officers, employees, or representatives, who has operational responsibility of mountain bicycling activities at any trail system area.
(5) "Passenger" means any person who is lawfully using an aerial passenger tramway or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.
(6) “Mountain Bike trails” means all mountain bike trails designated by the trail system operator to be used by mountain bicyclists for the purpose of participating in the sport of mountain biking including but not limited to downhill trails, cross-country trails, free ride trails, pump tracks, and skills areas.
§20-19-3. Duties of trail system operators with respect to trail system areas.
Every trail system operator shall:
(a) Maintain a trail board at a prominent location at the trail system area displaying that
area’s network of mountain bike trails.
(b) Designate and mark conspicuously all mountain bike trails with a name and color or symbol recognized in the mountain biking industry reflecting the relative degree of difficulty of the
mountain bike trail. Such designation shall be at or near the top or entrance of the mountain bike trail. Any mountain bike trail which is closed shall be so marked at the trailhead.
(c) Follow published operational industry standards and guidelines.
(d) Provide internal trained and dedicated emergency response personnel, or enter into an adequate emergency response plan with a local fire or EMS agency, or post at the trail board maintained under paragraph (a) of this section instructions on how to contact emergency response personnel.
(e) Maintain the mountain bike trails in a reasonably safe condition, except that such trail system operator shall not be responsible for any injury, loss or damage caused by the following: uneven or slippery rail and feature conditions; varying slopes and terrain; bumps; stumps; trees; roots; forest growth; cliffs; rock and rock drops; loose gravel and dirt; wet surfaces; holes and potholes; downed timber; debris; depressions; other bicyclists; dark tunnels; jumps; bridges; dirt or wood features/jumps; elevated features; and other constructed features; lift loading and unloading; padded and nonpadded barriers; paved surfaces; collisions with vehicles, pedestrians, wildlife, heavy equipment, or other similar objects; and mechanical or other failure of rental or personal equipment.
(f) Post at the trail board maintained under paragraph (a) of this section the following language:
“WARNING – ASSUMPTION OF RISKS: Under West Virginia law, every mountain bicyclist is considered to have accepted and to have knowledge of the risk of injury (including death) to the mountain bicyclist, as well as damage to property of the mountain bicyclist. Under West Virginia law, every mountain bicyclist has the duty to take the precautions that are necessary to avoid injury or death, as well as damage to property. West Virginia law sets forth certain limitations on the liability of trail system operators for injury or death to a bicyclist, as well as damage to property.
(g) Post a sign at all aerial passenger tramways that advises the passengers to seek advice if not familiar with riding the aerial passenger tramway; and
36 (h) Construct, operate, maintain, and repair any aerial passenger tramway in accordance with relevant and published national standards and safety requirements for such machinery.
§20-19-4. Duties of passengers.
No passenger shall:
(a) Board or embark upon or disembark from an aerial passenger tramway except at an
area designated for such purpose;
(b) Drop, throw, or expel any object from an aerial passenger tramway;
(c) Perform any act that interferes with the running or operation of an aerial passenger tramway;
(d) Use any aerial passenger tramway if the passenger does not have the ability to use it
safely without instruction, until the passenger has received sufficient instruction to permit safe usage; and
(e) Embark on an aerial passenger tramway without engaging such safety or restraining
devices as may be provided.
(f) Embark on an aerial passenger tramway without the authority, expressed or implied, of the trail system operator.
(g) Embark on an aerial passenger tramway while impaired by alcohol or drugs.
§20-19-5. Duties of mountain bicyclists.
(a) It is expressly recognized that mountain bicycling as a recreational sport is hazardous,
regardless of all feasible safety measures which can be taken.
(b) Each mountain bicyclist expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in the sport of mountain bicycling including, but not limited to, any injury, loss or damage caused by the following: uneven or slippery trail and feature conditions; varying slopes and terrain; bumps, stumps; trees; roots; forest growth; cliffs; rock and rock drops; loose gravel and dirt; wet surfaces; holes and potholes; downed timber; debris; depressions; other bicyclists; dark tunnels; jumps; bridges; dirt or wood features/jumps; elevated features and other constructed features; lift loading and unloading; padded and nonpadded barriers; paved surfaces; collisions with vehicles, pedestrians, wildlife, heavy equipment or other similar objects; and mechanical or other failure of rental or personal equipment.
(c) Each mountain bicyclist shall have the sole individual responsibility for knowing the range of his or her own ability to negotiate any trail. Further, it shall be the duty of each mountain bicyclist to ride within the limits of the mountain bicyclist’s own ability; to maintain reasonable control of speed and course at all times while mountain bicycling; to heed all posted warnings; to mountain bicycle only on a bike trail area designated by the trail system operator; to assess the difficulty of mountain bike trails; to be able to stop or avoid other individuals and objects; and to refrain from acting in a manner which may cause or contribute to the injury of anyone.
(d) If involved in a collision with another individual that results in injury, it shall be the duty
of a mountain bicyclist to remain in the vicinity of the collision until giving his or her name and current address to a representative of the trail system operator or to all other parties to the collision except to secure aid for a person injured in a collision. A mountain bicyclist who leaves the vicinity to secure aid shall provide his or her name and current address after securing the aid.
(e) If while mountain bicycling any mountain bicyclist collides with any object or person, except an obviously intoxicated person of whom the trail system operator is aware, the responsibility for such collision shall be solely that of the mountain bicyclist or mountain bicyclists involved and not that of the trail system operator.
§20-19-6. Liability of trail system operator.
(a) A trail system operator may be liable for injury, loss, or damage caused by its 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) A trail system operator 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 trail system operator.
(c) A trail system operator is not liable for any injury, loss, or damage caused by a mountain bicyclist or passenger's violation of any duty described in this article.
(d) Every trail system operator shall carry public liability insurance in limits of no less than $100,000 per person, $300,000 per occurrence, and $10,000 for property damage.
§20-19-7. Liability of passengers.
Any passenger may be 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.
§20-19-8. Liability of mountain bicyclist.
Any mountain bicyclist may be liable for injury, loss, or damage resulting from violations of the duties established in section five of this article where the violation of duty is causally related to the injury, loss, or damage suffered.
Adopted
Rejected