Recreational Vehicle Negligence: Developing the Snowmobile Case
Written by Daniel G. Kagan
Maine’s vast expanse of undeveloped territory has long been a magnet for snowmobile enthusiasts. Not surprisingly, the rapid rise in the number of snowmobilers using Maine’s trail network has been accompanied by a surge in injury-causing snowmobile accidents. Representing riders injured in snowmobile accidents presents special challenges. This article discusses some things to consider when the next snowmobile case comes in your door.
I. Introduction to Recreational Vehicle Negligence
Maine’s vast expanse of undeveloped territory has long been a magnet for snowmobile enthusiasts. With its land area surpassing that of all other New England states combined, Maine presents an unequaled winter wilderness experience, located within an easy drive for a large percentage of the U.S. and Canadian populations.
During the last decade, factors including focused marketing, stable fuel prices, and good snowfall have resulted in dramatic growth in Maine’s snowmobile industry. Unofficial records from Maine’s Department of Inland Fisheries and Wildlife (IFW) show snowmobile registrations up over 40% from 1985 to 1995. Non-resident snowmobile registrations went from 2,332 to 8,771 over the same period, a rise of approximately 400%.
Not surprisingly, the rapid rise in the number of snowmobilers using Maine’s trail network has been accompanied by a surge in injury-causing snowmobile accidents. The past two winters in Maine have seen snowmobile riders injured in record numbers. In 1996 alone, there were 285 snowmobile accidents reported to IFW, including 11 fatalities. This contrasts dramatically with the statistics of a decade ago, when accidents averaged barely one hundred per year, with one or two fatalities annually.
Representing riders injured in snowmobile accidents presents special challenges. This article discusses some things to consider when the next snowmobile case comes in your door.
II. Developing your liability theory in the snowmobile case
Effective screening and development is critical to a successful tort practice.
As with any tort case, in a snowmobile accident case it is important to have a general understanding of snowmobiles and the various factors that go into their safe operation. The sooner you can uncover the pertinent details, the sooner you will be able to determine the viability of the case. Initial intake is critical. Your client is likely to have a great deal of information that will help you get started, particularly if he or she is an experienced snowmobiler.
While you may not be able to tell conclusively at that initial meeting whether there is a case to be pursued, you at least can make some preliminary observations and frame your investigation accordingly.
Many factors, separately or in combination, can hinder the safe operation of a snowmobile.
It is impossible to operate a vehicle safely if you cannot see, and on a snowmobile visibility is especially critical. For a sport that takes place outdoors, operating a snowmobile is a surprisingly sensory-depriving activity. Snowmobilers wear bulky clothing, thick mittens and boots, and full-faced, insulated helmets complete with plastic facial visors or goggles. The purpose, obviously, is to insulate the rider from the cold, wind and very loud noise that the machines themselves produce, as well as to provide head injury protection. This outfit, however, deprives the operator of much sensory input. The snowmobile’s engine noise, though muffled by the insulated helmet, drowns out virtually everything else. The helmet itself, while obviously a needed safety measure, limits peripheral visibility. With this in mind, identifying potential impediments to visibility can be critical to your case. Some questions to pursue regarding visibility:
What was weather like? Was it snowing? Snow can obviously reduce visibility. Was it raining? Was it foggy? Either can reduce visibility or cause moisture buildup on the operator’s visor or goggles.
What was the temperature? If it was relatively warm, a driver’s perspiration could fog the visor or goggles, impairing visibility. What was the driver wearing?
What were the snowmobiles doing at the time? When snowmobiles travel in a row, each sled may kick up a snow plume or “rooster tail” that limits the following sled’s visibility. For example, I had a case in which one snowmobile missed a ninety-degree curve and left the trail at a high rate of speed. Two sleds were following, focusing primarily on the snow plume kicked up by the first. As a result, like lemmings off a cliff, the two following sleds followed the first blindly off the trail, resulting in a multi-snowmobile collision.
At what time of day did the accident happen? In which direction(s) were the sleds heading? The sun’s glare can be even worse on a white snowy field than on a highway. Scratches on the driver’s visor or goggles can worsen the glare effect by refracting the sunlight. The wrong color visor can worsen the sun’s blinding effect.
Did the accident happen after dark? Snowmobile lighting can be critical and is mandated by statute (see below). Did the snowmobiles have proper illumination? Did they have operating low beams, high beams, taillights? Were their gauges properly illuminated? How about the driver’s visor and goggles, were they clear and of an appropriate color? A dark tinted visor, perfect for a sunny day, is absolutely the wrong thing for nighttime operation. Sometimes drivers will remove the visor for nighttime operation, leaving his or her eyes bare. This presents problems, too, as bare eyes tend to squint and tear as speed increases.
Were there perhaps other light sources that could have impaired visibility? A spotlight shining off a building, house or pole can blind a snowmobile driver heading in its direction, as can the high beams of an oncoming snowmobile (or automobile, if the accident occurred on or near a highway).
What is the topography and configuration of the collision area? Maine’s landscape is bumpy, irregular, and heavily treed, and its snowmobile trails mirror these characteristics. Unlike automobile highways, which are built in straight lines wherever possible, snowmobile trails wander up, over, and around such obstacles. While these trail characteristics present much of the challenge and enjoyment of snowmobiling, they also increase risks for (and impose greater safety obligations upon) snowmobile operators. Is there a hill or knoll that limits sight distances? Keep in mind that a seated snowmobile operator’s head is lower than the standing height of the average man, decreasing the sight distance. Is there a corner or curve that similarly decreases sight lines?
In an automobile liability case, it is often enough to know whether the roads were wet or dry, snowy or clear. With a snowmobile, however, more information about the snow surface is often necessary. Variability in snow conditions can affect handling and operation immensely. Keep in mind that the Eskimos have something like nineteen different words to describe snow depending upon its condition!
To appreciate how snow conditions can affect handling, it is important to understand how snowmobiles operate. A motorized, tank-like track propels the machine forward, while skis up front (sometimes one but most typically two) are the primary means of controlling direction. A hand operated lever on one side of the handlebars controls the throttle sending power to the track, a hand lever on the opposite side of the handlebars controls the sled’s braking ability by stopping the track, and turning the handlebars side to side moves the two skis simultaneously, controlling the sled’s direction.
The snow surface influences directly the amount of control the operator has over the snowmobile’s movement. Slick or icy conditions can impede initiating and maintaining forward momentum, because the track may spin before gaining purchase. Similarly, since the track acts as the mechanism for braking, slick conditions can increase stopping distances tremendously. It is the operator’s responsibility to take these conditions into account and adjust speed and following distances accordingly. Metal “spikes” for treads which can improve handling are available both from manufacturers and after-market suppliers. Not using such traction devices can be a factor in proving a liability case against a snowmobile operator, in much the same way as operating a vehicle in the middle of a Maine winter without snow (or at least all-season) tires.
The quality of the snow surface has a critical effect on steering. While the operator can impart some steering effect on a snowmobile through active weight-shifting, the primary steering mechanism is the forward movement of ski against snow.
When the skis are turned, the skis’ forward momentum quickly “plows” a buildup against the leading ski edge, imparting a force that causes the sled to turn away from the snow buildup. This steers the snowmobile. If the snow conditions are hard, icy, or bare, however, there will be no snowy buildup when the operator steers the skis, causing the sled to continue forward in a straight line even if the skis are turned.
Under poor snow conditions, the maximum speed at which a snowmobile can be operated safely drops dramatically. In a recent case in which an insurance carrier’s first response was no liability, we used evidence of poor snow condition to show that the insured’s speed was excessive for the conditions. Our client’s sled broke a belt and glided to a stop in a field just over the crest of a hill. A second sled crested the hill behind him and was unable to turn in time. The second driver admitted his speed to be approximately 45 miles per hour, which under normal circumstances may not have been excessive. Through photographic and eyewitness evidence, however, we showed that there was only about 1″ of snow covering the smooth, grass field. Because there was not enough snow to permit the skis to steer, the snowmobile continued in virtually a straight line and struck the sled. Through reconstruction, we showed that had the sled been operated at a proper speed for the conditions, it would have been able to turn and would have had no trouble avoiding the broken-down sled.
Another issue closely related to snow condition is ice on lakes and streams. We have all read of tragedies and near-tragedies caused when a snowmobile falls through the ice. There is ample literature telling when it is safe to venture out onto frozen bodies of water. Both the State and private snowmobile clubs issue advisories on the relative safety of the frozen surfaces. If a snowmobiler ignores this information and leads a novice rider onto hazardous surfaces, he or she may be liable for the injury or death that result.
The issue of product liability in snowmobile accidents is too broad a topic to take up here. Nonetheless, issues concerning a snowmobile’s condition and equipment should not be overlooked. For example, as stated above, snowmobiles should have functioning lights, and adequate steering and brakes.
Did mechanical problems divert the operator’s attention from the train ahead of him or her? Having to monitor gauges frequently or to remove one hand from the handlebars may be enough to impede safe operation.
Operator fatigue. Snowmobiles are capable of covering long distances. Increased reliability and operating range has made it possible for snowmobilers to ride for literally hours on end. And, while the comfort level of snowmobiles has improved greatly over the years, they still have a long way to go to match that of passenger cars.
The cumulative effect of physically controlling a heavy snowmobile, being bombarded with the engine’s steady drone and constant vibration, and fighting the cold can take a toll on the operator. Fatigue can slow reaction time and impair judgment, a point that a human factors expert (or, under the right circumstances, a medical doctor) can help you prove at trial.
How long was the offending operator on his or her sled? What stops did he or she make that day? What did he or she consume at these stops? How many miles were covered that day? For how many days had he or she been on the trail?
Temperature. The human body functions less efficiently at extremely cold temperatures, but many snowmobilers are loath to acknowledge their limits, heading out virtually without regard for the weather. Consider getting the weather records from NOAA for the week before and leading up to the accident date, which will reflect basic temperature ranges and give you a start on proving precipitation levels and patterns.
Alcohol and/or drug use. It is a sad fact that some choose to consume alcohol while operating a snowmobile. Proving that alcohol impairs one’s ability to operate a snowmobile safely is easy. Proving that the operator had, in fact, consumed alcohol and was impaired is more difficult. You are are much less likely to have an official report or testimony documenting the use of alcohol in a snowmobile case than in an automobile case. You may be left to pursue anecdotal evidence in an effort to uncover an alcohol “smoking gun.”
With whom was the operator traveling that day? Where had he or she stopped? What had he or she consumed? Did anyone smell liquor on his or her breath? What had he or she done the night before? Was there a party or a good night’s sleep?
The same questioning applies to recreational drugs, but don’t overlook those of the over-the-counter variety as well. Was the operator suffering from a winter cold? What medications was he or she taking? Do the instructions for the medication warn against operating machinery? It’s not hard to prove that cough medicine containing alcohol can cause drowsiness and impaired judgment.
Speed and competition. Many snowmobiles are fast, extremely fast. Anyone with money or decent credit can walk into a dealer and buy an average snowmobile capable of speeds in excess of 80 miles per hour. For many, the virtually unregulated speed is part of the sport’s attraction. It is also the cause of a great many accidents.
One of the best ways to establish a snowmobile’s speed is through eyewitness accounts, but you can build your case with other helpful facts as well. With whom was the offending operator riding at the time? Was he or she part of a pack that was racing and jockeying with one another? What type of snowmobile were the individuals in the pack operating? Do not underestimate the competitive spirit among the operators of these very dangerous toys.
Competence. How experienced was the driver that caused the accident? Was he or she familiar with the area where the accident occurred? How familiar was he or she with the snowmobile they were riding at the time of the collision?
III. The Investigation
Discussed above were examples of the types of issues to consider when evaluating the liability potential for your snowmobile case. A good investigation will be critical to nailing down your proof. Your client interview may give you some leads to pursue, but to large degree whether you can make your case will depend upon your investigative follow-through.
It is generally a good idea in tort cases to begin your investigation of the facts as soon as possible.
In addition to preserving the evidence that will be critical in proving your liability case, initiating an immediate investigation can help you determine earlier rather than later whether you have a case at all. This is especially true for snowmobile liability cases, which involve so many variable and fragile factors – weather, snow surface, visibility, mechanical problems, etc. – that can change very quickly.
Snow conditions change daily, sometimes even hourly. By the time you get the case, it is probably too late to duplicate the conditions present at the time. Even so, don’t overlook the obvious. Remember, often snowmobilers are out having fun with family and friends, sometimes on vacation. People out recreating take cameras and video recorders.
I am still amazed at how often I find out that someone took pictures of a snowmobile accident scene showing the relative positions of the involved machines at rest, the snow, weather and lighting conditions, and the configuration of the trail itself. For some reason, what would be considered a morbid exercise at the scene of an automobile accident can be acceptable behavior at a snowmobile accident scene.
Even if you can’t get photographs or videotape showing the accident scene, it is often possible to get photographs of the property damage to the sleds themselves. Photographs showing impressive amounts of damage to a snowmobile can carry emotional weight.
Just as importantly, the location and nature of the impact points can help in reconstruction. Don’t forget to find out if the government investigated. IFW and local police are often called upon to investigate, and investigations can include photographs. Getting copies of the photographs is worth the expense.
Another overlooked source of photographs are newspapers. Photographers are often dispatched to accident scenes, and free-lance photographers sometimes submit their work for publication. The fact that the newspaper didn’t happen to run a picture (or even an article) doesn’t mean that they don’t have pictures, and it’s worth a phone call to find out. Also, don’t call only the major dailies. There are numerous small newspapers around the state, with a limited geographic market, for whom such an event might be newsworthy enough to cover.
The importance of witnesses in proving liability is obvious.
How you go about finding witnesses is less obvious. After exhausting your client’s memory for potential witnesses, your next step is the official investigation report. Depending upon the investigating agency and officer, as well as the perceived seriousness of the accident, these reports can provide a useful starting point. The downside of this is that typically, these witnesses will already be committed to an account of what happened and you will for the most part have to live with this account.
Just because they have already given a statement, however, is no reason not to speak with these witnesses yourself. First, they may not have been asked to comment on facts that are important to you in proving your liability theory (see above). Second, you can expect that the other side will be talking with them (if they haven’t done so already), and you should know about this. Finally, and perhaps most importantly, you may learn of others who either saw the accident or who have knowledge that wasn’t recorded in the official report.
Remember all the potential sources of admissible evidence. Statements of the offending operator are admissible on numerous grounds. Many of us routinely request the medical records pertaining to our own clients, but how many remember to request those of other persons involved in the accident to see if they have given an account differing from his or her “official” position adopted later?
In the right case, you can expand your witness search beyond those present at the scene. The investigative report may establish the operator’s whereabouts that day leading up to the accident. Many establishments throughout the Maine wilderness cater especially to snowmobilers, and someone there might recall the offending operator “hoisting a few” earlier that day, perhaps more than he or she admits to the investigating officer.
3. Physical evidence
Don’t overlook the obvious – physical evidence, including if appropriate pieces of the snowmobile, can be used to great effect at trial. Preserving the damaged snowmobile can be used intellectually, to visualize how the collision occurred, as well as emotionally, to convey a sense of violence and impact to an otherwise sterile courtroom setting.
4. Reconstruction or re-enactment
Consider using an expert to reconstruct or reenact the event. An expert in a snowmobile case, by the way, need not be a highly credentialed physics professor or engineer. Remember, both the Federal and Maine Rules of Evidence permit an expert to testify if his or her qualifications arise by knowledge, skill, or experience as well as training or education. F.R. Civ. P 702; M.R. Civ. P. 702.
Consider using as an expert an articulate person who has hands-on experience riding or repairing snowmobiles. The theories and calculations that apply to automobile accident reconstruction can be adjusted or modified to fit the special circumstances in which snowmobiles are involved. Other automobile accident reconstruction techniques, such as looking for speedometer “slap” (where the force of impact freezes the speedometer at the vehicles speed at the moment of impact) or light filament inspection (in which a careful examination of the filaments contained in the vehicle’s lights can disclose whether they were illuminated at the moment of impact) can be applied in the snowmobile case.
A re-enactment of the accident circumstance can be extremely helpful. First, unlike a motor vehicle, not all of us are familiar with the handling and use of a snowmobile. Simply getting on a snowmobile may be an eye-opening experience for some of us. A lawyer who observes and participates in the the accident re-enactment can gain a much clearer understanding of how the collision occurred. You may gain insight into potentially significant factors such as closing speeds, sight lines, visibility, and the like. Be careful, however, that you don’t participate to the point of becoming a witness.
If you coordinate your re-enactment carefully, videotaping and keeping careful records of your results, you may be able to develop a useful demonstrative aid for use at trial. At the very least, you can create a powerful tool to use in your settlement discussions. The more factors you can duplicate in your re-enactment, the more powerful and useful the tool will be.
In a recent case in our office, we produced a re-enactment video in which we matched the topography, weather conditions, snow conditions, year and make of the machines involved, and weight and placement of the respective drivers and riders. By filming the snowmobiles operating at first lower and then higher speeds, we demonstrated that the offending operator simply could not control his machine at the speed he admitted traveling prior to the impact.
The expert who helped us stage the re-enactment was not a highly educated professor or engineer but rather someone who has sold, worked on and ridden snowmobiles for many years. The resulting videotape, edited to six minutes, led to a liability stipulation and a subsequent favorable settlement. This process, by the way, need not be exorbitantly expensive – our taped re-enactment cost less than $2000 to produce.
IV. Sources for Snowmobiling “Rules of the Road”
Statutory law. Just as with statutory rules of the road for cars, the violation of statutes governing operation of snowmobiles is evidence of negligence but not negligence per se. See, e.g., French v. Willman, 599 A.2d 1151 (Me. 1991). Operating a snowmobile recklessly, exposing others to risk of “serious bodily injury” is a crime. 12 M.R.S.A. § 7827(8). So is operating a snowmobile “to endanger any person or property.” 12 M.R.S.A. § 7827(11).
Other statutes can also prove useful to your case. It is unlawful to operate a snowmobile while intoxicated by liquor or drugs, and the blood alcohol limit is 0.08%, the same same as for motor vehicle operation. 12 M.R.S.A. § 7827(9). A snowmobile operator has an obligation to submit to the blood alcohol test, 12 M.R.S.A. § 7829(A), and operation of a snowmobile in Maine is taken as implied consent to submit. 12 M.R.S.A. § 7828. It is unlawful to operate a snowmobile on a controlled access highway, 12 M.R.S.A. § 7827(2), or, except under limited circumstances, on a plowed road or public way. 12 M.R.S.A. § 7827(3,4). Snowmobiles may operate on a public way for up to 300 yards in order to cross the way (500 yards to cross a bridge, overpass or underpass), 12 M.R.S.A. § 7827(23D[1,2]), but must use the public way for the shortest distance possible and remain to the extreme right at all times. Also, before entering a public way, a snowmobile must come to a complete stop and must yield the right of way at all times to motor vehicles. 12 M.R.S.A. § 7827(5,6).
Snowmobilers are required to have and use adequate lights. Every snowmobile must have at least one headlight in front capable of throwing a white beam at least 100 feet, 12 M.R.S.A. § 7827(16A), and red tail light in back visible from at least 100 feet, 12 M.R.S.A. § 7827(16B). Operators must use these from ½ hour after sunset to ½ hour before sunrise, and at any time when insufficient light, bad weather, or other obstructions prevent being able to see at least 500 feet ahead. 12 M.R.S.A. § 2827(17).
There may be age factors to consider in your case. It is unlawful for a person under age 14 to cross a public way operating a snowmobile. 12 M.R.S.A. § 2827(12). A person who permits a child under 10 to operate a snowmobile under any circumstances, unless the child is “accompanied by an adult,” is guilty of a crime. 12 M.R.S.A. § 2827(13). There is no license requirement to operate a snowmobile in Maine. 12 M.R.S.A. 7823. …/…
Other sources for safe operating guidelines. Because statutory authority may be of limited value in your case, you can look elsewhere to help establish a violation of safe snowmobiling practices. Maine Department of Conservation publishes a pamphlet of snowmobile laws which, in addition to the statutory authority cited above, includes safety tips, guidelines and trail ethics for snowmobilers. Snowmobile safety courses are offered throughout the state, often sponsored by or in conjunction with snowmobile clubs and organizations, large and small. While it may not be necessary to attend the courses, you can buy course materials that may be useful. Also, snowmobile clubs and organizations can be a good place to start if you need to find an expert witness.
Snowmobile’s owners manual. Another overlooked source of valuable information regarding safe operation and use is the snowmobile’s owners manual. In putting together the case involving the overloaded snowmobile I mentioned, a quick trip to the local Yamaha dealer yielded the owner’s manual for the snowmobile that caused the collision. For $10, I bought the smoking gun needed to win the case. The very first section of the owner’s manual, entitled “Safety Information,” stated in boldface letters, “This snowmobile is designed to carry an operator only – passengers prohibited. Carrying a passenger can cause loss of control.” Since the offending operator had a passenger with him and obviously lost control, that was the end of the liability case. Other, more generic warnings are also contained in these manuals and can prove useful. The manual can also give you the machine’s specifications, weight, engine size and capacity, and other information that may be useful in a reconstruction. Also, don’t overlook the snowmobile manufacturer’s promotional materials. If your case depends upon depicting the defendant as a snowmobile cowboy, see if the brochure emphasizes the machine’s speed and power.
V. Insurance Coverage for Snowmobile Accidents
As a practical matter, your promising snowmobile case may prove to be a dud if the offending operator has no insurance and is without sufficient assets to satisfy a judgment. There are two primary sources of coverage for snowmobile accidents – homeowner policies and snowmobile liability policies.
Homeowner liability policies typically exclude liability arising out of the use of recreational or all-terrain vehicles, and this would encompass snowmobiles. Depending upon the wording of the particular policy, however, homeowner coverage may still apply under certain circumstances.
If an insured is using his own sled on his own insured property, some homeowner policies will provide liability coverage so long as the negligence occurs on the insured property. If the insured is using someone else’s snowmobile, he may be covered, even if the liability arises off the insured premises. To determine whether there is coverage in any particular case, of course, it is critical to obtain and analyze the applicable policy language carefully.