H 3878 General Bill, By Simrill
 A BILL TO AMEND TITLE 56, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
 MOTOR VEHICLES BY ADDING CHAPTER 35 SO AS TO ESTABLISH IMMUNITY FROM LIABILITY
 FOR INJURIES OR DEATH TO A PERSON ENGAGED IN OFF ROAD VEHICLE ACTIVITY CAUSED
 BY THE INHERENT RISK OF OFF ROAD VEHICLE ACTIVITY, TO PROVIDE DEFINITIONS AND
 EXCEPTIONS TO THE IMMUNITY.

   04/05/01  House  Introduced and read first time HJ-11
   04/05/01  House  Referred to Committee on Judiciary HJ-11

TO AMEND TITLE 56, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MOTOR VEHICLES BY ADDING CHAPTER 35 SO AS TO ESTABLISH IMMUNITY FROM LIABILITY FOR INJURIES OR DEATH TO A PERSON ENGAGED IN OFF ROAD VEHICLE ACTIVITY CAUSED BY THE INHERENT RISK OF OFF ROAD VEHICLE ACTIVITY, TO PROVIDE DEFINITIONS AND EXCEPTIONS TO THE IMMUNITY.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Title 56 of the 1976 Code is amended by adding:

    Section    56-35-10.        As used in this chapter:

    (1)    'Engages in an OHV activity' means:

        (a)    riding or training on an OHV;

        (b)    assisting in riding or training on an OHV;

        (c)    being a passenger on an OHV; or

        (d)    being a spectator at an OHV activity.

    (2)    'Inherent risk of OHV activity' means the dangers or conditions which are an integral part of OHV activities including, but not limited to:

        (a)    the inherent tendency of an OHV to respond to inputs from its operator, placing upon the operator full responsibility to avoid operation in a manner which could result in injury, harm, or death to the operator or to persons around the OHV;

        (b)    certain hazards such as surface, subsurface conditions, and obstacles;

        (c)    collisions with other OHVs or objects; and

        (d)    the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control of the OHV or not acting within the participant's ability.

    (3)    'Obstacles' include, but are not limited to, ditches, jumps, fences, trees and other vegetation, uneven surfaces, mud, sand, hills, other OHVs, and discarded items that may be in the vicinity of the OHV activity.

    (4)    'Off road terrain' means areas not paved for purposes of transit including, but not limited to, forests, beach areas, mountains, and fields.

    (5)    'OHV' or off highway vehicle means a motor-driven vehicle of two or more wheels, whether licensed for street use or not, which is capable of or whose main design purpose is to negotiate off road terrain for purposes of recreation or competition use. This definition includes, but is not limited to, minibikes, go-carts, motorcycles, three, four, and six wheel, and tracked all terrain vehicles.

    (6)    'OHV activity' means:

        (a)    an OHV show, fair, competition, performance, event, or parade that includes a class of OHV and an OHV discipline including, but not limited to, trail riding, motocross, supercross, enduros, hare scrambles, poker runs, dual sport, hillclimb, dirt track, speedway, cross country, hunting, and basic transportation use;

        (b)    OHV teaching and training activities;

        (c)    storing OHVs;

        (d)    riding, inspecting, or evaluating an OHV belonging to another person, whether the owner has received monetary consideration or another thing of value for the use of the OHV, or is permitting a prospective purchaser of the OHV to ride, inspect, or evaluate the OHV;

        (e)    a ride, trip, hunt, or other OHV activity, however informal or impromptu, that is sponsored by an OHV activity sponsor, whether or not a fee is collected; and

        (f)    repairing, fixing, or maintaining an OHV.

    (7)    'OHV activity sponsor' means an individual, group, club, partnership, or corporation, whether the sponsor is operated for profit or nonprofit, which sponsors, organizes, or provides the facilities for an OHV activity. The definition includes, but is not limited to, an OHV club, hunt club, riding club, school and college sponsored class, program, and activity, and an operator, instructor, and promoter of an OHV facility.

    (8)    'OHV facility' includes, but is not limited to, a clubhouse, racecourse, fair, and an arena at which the activity is held.

    (9)    'OHV professional' means a person engaged for compensation in:

        (a)    instructing a participant or renting an OHV to a participant for the purpose of riding, driving, or being a passenger on the OHV;

        (b)    renting equipment to a participant; or

        (c)    examining or repairing an OHV in the capacity of a technician or mechanic.

    (10)    'Participant' means a person, amateur or professional, who engages in an OHV activity, whether or not a fee is paid to participate in the OHV activity.

    Section 56-35-20.    (A)    Except as provided in subsection (B), an OHV professional is not liable for an injury to or the death of a participant resulting from the inherent risk of OHV activity. No participant or participant's representative may make a claim against, maintain a motion against, or recover from an OHV activity sponsor or an OHV professional for injury, loss, damage, or death of the participant resulting from the inherent risk of OHV activity. Due to the inherent nature of OHV activity and operation, the sponsor or professional is not liable for injury, loss, damage, or death resulting from obstacles, whether the obstacles are natural or artificial, known to the sponsor or professional or not, or whether the sponsor or professional rents, owns, leases, or is otherwise in control of the land used for the OHV activity. It is the full responsibility of the OHV participant to determine if the participant's skills and equipment are suitable for traversing the obstacle.

    (B)    Nothing in subsection (A) prevents or limits the liability of an OHV activity sponsor or an OHV professional if the OHV activity sponsor or OHV professional:

        (1)(a)    provided the equipment and knew or should have known that the equipment was faulty, to the extent that the equipment caused the injury; or

            (b)    provided the OHV and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the OHV activity, based on the participant's representation of his ability;

        (2)    committed an act or omission that constitutes wilful or wanton disregard for the safety of the participant and that act or omission caused the injury; or

        (3)    intentionally injured the participant.

    (C)    Nothing in subsection (A) prevents or limits the liability of an OHV activity sponsor or an OHV professional under liability provisions as set forth in the product liability laws."

SECTION    2.    This act takes effect upon approval by the Governor and applies to causes of action arising on or after this act's effective date.