By David Peel
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 landowner, Mr. Whitmore, won the appeal as well.
Peel seeks justice for those injured in car accidents, medical malpractice, and nursing homes. He often addresses churches, clubs and groups without charge. Peel may be reached through PeelLawFirm.com wherein other articles may be accessed.
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