Off-road vehicle operators and passengers frequently suffer serious injuries in crashes, even at lower speeds than in a car or truck. There is typically little to no protection for occupants depending on the type of off-road vehicle. These vehicles are often referred to as all-terrain vehicles or ATVs. The Consumer Product Safety Commission (CPSC) reported 13,043 ATV deaths between 1982 and 2013. Almost one in four of those deaths involved a child under 16-years-old. About one in three people injured suffered a head or neck injury. Statistics show one in four people injured will break at least one bone. These vehicles are typically unregistered so anyone can operate one without being trained or licensed. A common challenge in ATV injury cases is the lack of applicable liability insurance covering the operators of these off-road vehicles. There typically is no requirement to insure these vehicles and coverage exclusions exist in various automobile and homeowners insurance policies. This case involved a Kubota utility vehicle (UTV) pictured here which is larger than a typical ATV as it seats two persons side by side. It functions as a mini-dump truck with a hydraulic cargo bed. It is used to transport and unload cargo and has a top speed of 25 mph.
A teenager attends an annual party at a farm with over 100 people. The farm owners make the UTV available to guests to drive from the main house on a dirt road through the woods to the outer reaches of the farm. The farm owners, hosts of the party, simply leave the keys in it for anyone to use without any further warning or instruction. Adults and children are seen being transported in the hydraulic cargo bed. Carrying passengers in the cargo bed is expressly forbidden in the owner’s manual and in stickers on the UTV. The teenage passenger is being driven in the UTV by a 22-year-old friend. The farm owners knew safe operation of the UTV on the dirt road through the woods required it be driven at no more than half throttle and to only drive it on the middle of the dirt road to avoid the uneven sides. They provided no such warning or other instructions to the 22-year-old friend. The teenage passenger is tall resulting in his knees being up against the UTV’s dashboard. They transport guests in the cargo bed and drop them off out at the farm. The UTV is seen driving very fast as it enters the dirt road into the woods. On the way back through the woods the driver’s side front tire of the UTV goes off the dirt road. It goes over a bump on the edge of the woods. The UTV veers sharply to the right across the dirt road. The front right corner is destroyed as the UTV crashes into a tree. The force of the impact pushes on the teenage passenger’s right knee, driving his femur back through the socket of his hip. The top of the hip socket fractures. The teenage passenger has surgery to reconstruct the hip socket. The broken piece is reattached with a metal plate and screws. There is a long and painful recovery. A hip specialist predicts he will require two to three hip replacements during his lifetime.
The farm owners deny any responsibility. They blame it entirely on the friend. I filed a lawsuit against both the farm owners and friend. I located liability insurance coverage on the friend’s parents’ homeowner’s insurance policy. Despite the expected exclusion from coverage, I knew a typical homeowner’s policy often provides liability coverage when the off-road vehicle being operated by a household member is not owned by anyone in the household. In this case the farm owned it. I also located the farm owner’s policy. It is a combination policy, which provides liability coverage for farm activities and homeowner’s personal liability coverage for the farm owners. The farm owners deny the use of the UTV was a farm related activity as it was a party, which did not have anything to do with the farm business. Their hope was I would drop the case since there was no insurance available. Unable to prove the Kubota UTV was made available during a “farm activity”, during depositions I proved the owners who hosted the party personally failed to properly supervise the operation of the Kubota UTV. This made the homeowner’s portion of their farm policy applicable. The case then settled during a mediation providing the young passenger much needed compensation for his medical expenses, pain and suffering and expected future hip replacements.
– Steven M. Ballin, Esq.
