As West Virginians, we are blessed to be surrounded by beautiful scenery and terrain. It comes as no surprise that ATV and four wheeler riding is a common part of our heritage in the “Mountain State”. ATVs, or all-terrain vehicles, and four wheelers, sometimes known as “quads”, are popular for both utility and recreational purposes. Many landowners, farmers and hunters require these vehicles for farming, overland transportation and to access terrain that is often not accessible by regular vehicles. Additionally, these vehicles are popular for recreational trail riding. ATV and four wheeler riding involves a great deal of care and awareness, and most riders operate their vehicles responsibly. However, accidents do occur and when they do, they can inflict severe injuries on drivers as well as passengers.What Makes ATV and Four Wheeler Accidents Unique?
ATVs and four wheelers are heavy machines, with narrow wheel bases, that can operate at speeds up to 65 miles per hour. ATV and four wheeler accidents are unique because the injuries sustained in accidents involving these machines tend to be severe. In February of 2020, the United States Consumer Product Safety Commission released the 2018 Annual Report of ATV-Related Deaths and Injuries. According to the report, there were an estimated 81,800 ATV-related emergency department-treated injuries in the United States. Furthermore:
- Of the 81,800 ATV-related emergency department-treated injuries, an estimated 26% of those injuries involved children under the age of 16.
- West Virginia ranks 3rd in the nation for total ATV-related deaths, behind Texas (number 1) and Pennsylvania (number 2).
- From 2015-2017, West Virginia ranked number 1 in total ATV-related deaths.
- In 2018, 29% of all ATV-related emergency department-treated injuries involved head and neck injuries.
Additionally, the question of liability in an ATV or four wheeler incident is an important consideration, one that should be evaluated by experienced attorneys. Depending on the situation, the liable party could be the:
- ATV operator.
- ATV owner.
- ATV rental company.
- Owner or operator of another ATV.
- Manufacturer of safety equipment.
For example, due to the intoxication of an ATV operator, his reckless and negligent driving caused the ATV to collide with a tree, injuring himself and his passenger.
For example, the owner of an ATV allows you and a friend to borrow it for the afternoon. However, the owner did not disclose to you that he has recently experienced break failure on the ATV. While you are operating the ATV, the breaks fail, causing a collision with an embankment and injuries to yourself and your passenger.
For example, you rent a four wheeler from an equipment rental company. The rental company was aware that the four wheeler was previously wrecked by another customer, causing damage to the steering column, however the rental company failed to properly repair the damage. The steering column fails while you are operating the four wheeler, causing a wreck.
For example, you are trail riding on your ATV. An intoxicated ATV operator is coming toward you at high speed and loses control, causing a collision.
For example, you are driving your ATV responsibly and implementing the use of all proper safety equipment, such as wearing a helmet. Due to no fault of your own, a small landslide causes the trail to slip out from under your ATV, causing a rollover. You experience blunt force trauma to your head and sustain a serious head injury. Although you are wearing a helmet which meets Department of Transportation safety standards, you sustain a serious head injury. Upon further inspection, it is determined that the helmet was defective and did not provide the necessary level of protection as guaranteed. In this instance, you may have a product liability claim against the helmet manufacturer.
When you contact attorneys Gary Rich and Matthew Gutta, we can evaluate the nature of your ATV or four wheeler incident to determine the viability of a potential claim. The success of a claim is dependent upon the extent to which the injuries, harm, or death was caused by the negligence of others. There are four elements of a negligence claim. Remember, the “Plaintiff” in a lawsuit is the injured party who is filing an action, or claim, against the Defendant. The “Defendant”, sometimes referred to as the “Respondent”, is the party accused of causing the harm. The four elements of a negligence claim are:
Duty: The Plaintiff must show that the Defendant owed a certain duty of care in the specific situation. The extent of the duty of care varies based upon the circumstances of each situation.
For example, ATV and four wheeler operators have a duty to operate their vehicles within the limits of the capabilities of that vehicle.
Breach: The Plaintiff must show that the Defendant breached the duty of care that was required in that specific situation.
For example, most ATV and four wheelers have passenger number and weight limitation that must be abided by to ensure safe and proper operation. If an ATV operator allowed three passengers to ride in an ATV that was rated to carry only one passenger, the ATV operator will have likely breached his duty of care.
Causation: The third element of a negligence claim is causation. The Plaintiff must prove that the Defendant’s breach of duty actually and proximately caused the Plaintiff’s damages, harm, injuries or loss. Evaluating actual and proximate causation can be a complicated task which requires the skills and knowledge of experienced attorneys.
Actual cause is sometimes referred to as cause-in-fact. Actual cause exists when the Defendant’s actions, or inactions, directly cause the Plaintiff’s harm. In determining actual cause, attorneys must implement the “but for” test: “But for (without) the Defendant’s actions, would the Plaintiff have been injured?” In other words, if the Defendant did not do what he did, would the Plaintiff have suffered the harm that was suffered? If the Plaintiff wouldn’t have suffered the harm without the Defendant’s actions, then actual cause has been established.
For example, if an ATV operator allowed three passengers to ride in an ATV that was rated to only accommodate one passenger, and if it is proven that the additional passenger weight in the ATV caused it to roll over, injuring the passengers, the ATV operator’s actions were the actual cause of your harm. Using the “but for” test, ask the following question: “But for (without) the ATV operator allowing three passengers on an ATV that was rated for only one passenger, would the rollover have occurred?” If the answer is that the rollover wouldn’t have happened if the ATV operator hadn’t overloaded the ATV, then we have established actual cause.
When determining proximate cause, courts will consider whether the Plaintiff’s injuries were foreseeable to the Defendant. If the Defendant’s actions set forth a chain of unforeseeable events that resulted in harm to the Plaintiff, then it may be established that the Defendant did not proximately cause the Plaintiff’s injuries.
Damages: The fourth element of a negligence claim is damages. The Plaintiff must have suffered damages, harm, injuries or loss as a result of the Defendant’s actions. If the Defendant breached a duty of care without causing any damages, harm, injuries, or loss to the Plaintiff, then the Plaintiff has no claim.What Types of Damages/Compensation are Available?
If you are harmed, or if a loved one is killed or harmed in an ATV or four wheeler accident, and if you have a viable claim, attorneys Gary Rich and Matthew Gutta may seek multiple categories of damages to provide the compensation that you may be entitled to:
Compensatory Damages: Compensatory damages are intended to compensate the victim for the cost of the injury or harm. Furthermore, there are two different types of compensatory damages, actual and general.
Actual compensatory damages can include property damage, lost income, lost employment wages, and medical expenses such as hospital bills, rehabilitation treatment, physical therapy, medical equipment, nursing home care, in-home care and prescription drug costs.
General compensatory damages can include pain and suffering, mental anguish, loss of consortium and future losses as a result of lower earning capacity and future medical care.
Punitive Damages: Although punitive damages will only be awarded in specific instances, punitive damages serve as a punishment to the Defendant. Furthermore, awarding such damages sends a message to others in society and in that respect, punitive damages serve as a deterrent for such negligent behavior. Although there is a high burden on the Plaintiff to prove punitive damages, such awards can be substantial in comparison to compensatory damages.Steps to Take if You or a Loved One is Involved in an ATV or Four Wheeler Accident
- Contact 911 immediately and seek assistance and medical treatment for all involved.
- Insofar as you are safely able to do so, identify the other parties involved and exchange information. Take as many photographs of the scene as possible. Take photographs from various angles. Photograph surrounding area, debris and damage.
- Do not speak with an insurance company or provide any written statement to an insurance company without first talking to Rich & Gutta, PLLC.
- Call Rich & Gutta, PLLC, as soon as possible.
Regardless of whether you sustain severe injuries or minor injuries, it is imperative that you seek medical treatment immediately after your accident. A doctor will properly evaluate your condition and check for internal injuries that might not be immediately apparent to you. Your doctor will then provide a medical report that will be essential in building your case.Why You Should Call Rich & Gutta, PLLC Immediately
Preservation of evidence is paramount which means that time is of the essence. You need an experienced legal team to ensure that, among other things, witnesses are identified, medical and police records are obtained and other evidence is properly gathered. If you or a loved one were involved in an ATV or four wheeler accident, call Rich & Gutta, PLLC at (304) 924-7001.Tips For Safe ATV and Four Wheeler Riding
- If you are riding alone or in a small group, always notify a friend or family member of your plans and location.
- Ensure that cell phones are adequately charged for emergency communication.
- Be cognizant of whether or not you will be out of cell service in any of the areas you plan to travel. If so, ensure that you have a radio with proper radio contact for emergencies.
- Have a properly stocked first aid kit on hand.
- Whether you are an ATV operator or passenger, always engage in a safety check to familiarize yourself with the safety equipment such as safety straps, seatbelts, proper helmet use and location of first aid kits.
- Always be cognizant of the age and experience of fellow operators.
- Always shut off your engine when refueling.
- Please enjoy alcohol responsibly.