ATV Property Claims in Tennessee

ATVs RIDING ON YOUR PROPERTY

A Tennessee Court of Appeals case sheds light on the new law when someone is hurt riding ATVs on your property. Mr. McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Mr. Whitmore‘s property. Mr. Whitmore‘s property consists of approximately seven acres of land and a residence. With the exception of the residence, the property is largely undeveloped. Mr. McCaig and his family were attending a social gathering at Mr. Whitmore‘s home when the accident occurred. While riding Mr. Whitmore‘s ATV, Mr. McCaig flipped the vehicle, which landed on top of him. Mr. McCaig sustained significant injuries, including nerve damage to his spine, legs, feet, and hands that prevent him from walking unassisted.

In his lawsuit against Mr. Whitmore, the McCaigs allege that Mr. Whitmore is liable to them for negligence as a result of failing to properly instruct Mr. McCaig on how to operate the ATV and by failing to warn Mr. McCaig of dangerous and concealed conditions like bumps in the lawn, to avoid the edges of the concrete driveway, and to avoid steel guide wires, all of which he alleges were concealed to him, but known to Mr. Whitmore.

Mr. Whitmore’s homeowner’s insurance attorneys filed his answer, in which he denied any liability for Mr. McCaig‘s injuries and claimed that the recent Recreational Use Statute, TCA 70-7-104, bars any recovery by the McCaigs against Mr. Whitmore. Mr. Whitmore filed a motion for summary judgment alleging that he owed no duty to Mr. McCaig and the trial court agreed to throw out the case.

In this appeal, the Court stated that in order to bring a successful suit based on a claim of negligence, the plaintiff must establish: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. The first element that must be established is ―a duty of care owed by the defendant to the plaintiff-- the legal obligation of a defendant to conform to a reasonable person‘s standard of care in order to protect against unreasonable risks of harm. establish a negligence claim.
The new  Tennessee Recreational Use Statute codified at Tenn. Code Ann. §70-7-101 states that (a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as . . . off-road vehicle riding, . . . and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes…
There are exceptions to this law, but none were found to apply here. Therefore the land-owner, Mr. Whitmore, won the appeal as well.

Liability Insurance Ends Punkin Chunkin

NO PUNKIN’ CHUNKIN’

Since 1986, bored rednecks in Delaware have been tinkering with giant medieval trebuchet devices, catapults, giant slingshots, and even custom-built air cannons with enormously long barrels all to launch pumpkins staggering distances. 

The basic idea of this concept is to launch a pumpkin as high and far as possible. Then, trusted folks on ATVs ride out to measure the distance. Crowds often hit 20,000 in number. These events continued to grow in both the size of the crowds and the power of the machines, as the events were even featured on Myth-Busters and other programs.

But last year they cancelled the event. This year was cancelled, too. Why? The lack of a company willing to write the liability insurance policy ended the raining of pumpkins.

It seems that there was just one lawsuit regarding a serious ATV accident, and that was settled. However, liability insurance for this event had to be a stretch. As fun as “punkin chunkin’” sounds, and it seems like it would be great, insurance companies are not necessary in favor of too much “fun” if that fun will likely lead to injuries and lawsuits.

Liability insurance companies will tell you that numerous and serious claims involving death and serious injuries come from activities involving large, powerful machines, drunkenness, the presence of children and the use of motor vehicles.

Let’s analyze what they may be considering here:

·      Rednecks on ATVs in uneven fields? Check.

·      Large, powerful machines that swing counterweights that can kill? Check.

·      Giant, pressurized air cannons that can explode? Check.

·      Heavy pumpkins falling unpredictably from high in the sky? Check.

·      Is there a better than even chance that many of the yahoos involved in these admittedly fun activities are drinking or even totally drunk? Check.

It is rare for me to come down on the side of insurance companies since I feel like I sue at least one almost every week of my life, but I kind of see their point here. It is reinforced by the names and categories of record holders they list:

Adult Air Category:   American Chunker, Inc.       4694.68 ft.    

Okay, that is almost a mile! This Navy-sized pressured-air-gun shot a pumpkin almost a mile! But, notice that is only one category. In the “Adult Catapult” competition, the “Fibonacci Unlimited II” launched its gourd some 2862.28 ft., or about half a mile. Not to be out done, the “Adult Centrifugal” entry  “Bad to the Bone” hit 3245.58 ft.

Did you notice that there were “Adult” categories? So, yes, not only are children present, they actively compete. These future engineers enter youth categories that even include a “10 and under” class. Even the names they selected sound ominous: “Jersey Devil,” “The Plague,” “Stomach Virus,” and “Colossal Thunder.” (I will the “Snot Rocket” an honorable mention, as well).

So, insurance companies, who watch that profit margin very carefully, have effectively ended the reign--and the rain—of the pumpkins.