Attorneys navigate increase in challenging UTV & ATV crashes 

In recent years, accidents and deaths involving all-terrain vehicles and utility task vehicles have skyrocketed. Personal injury and product liability attorneys are facing unique challenges when litigating these cases as insurance hasn’t caught up to the growing industry.

A report by the Consumer Product Safety Commission found that North Carolina ranks 12^th in the nation for the most off-road vehicle crash deaths. South Carolina ranks 20^th.

The use of these recreational and sometimes work-related vehicles has surged in recent years, with some attributing the trend to boredom during the COVID-19 pandemic. Market forecasts predict the industry isn’t slowing down and that UTV and ATV purchases will grow from an $8.53 billion market in 2024, to $16 billion by 2033.

UTVs and ATVs are particularly popular in rural areas for both recreational use and forestry and farm work.

Rather than being litigated in the same fashion as motor vehicle collisions, these cases present unique challenges to attorneys who often have a difficult time justifying the costs of the case given insurance policies that fail to cover UTV and ATV drivers and passengers.

Across the Carolinas, a few experts in this emerging field shared their advice on navigating insurance, negligence and product liability claims.

Personal injury

Douglas Jennings remembers his first ATV case with startling clarity. A 7-year-old girl was driving an ATV when it rolled over. The handlebar punctured her skull, killing her.

Jennings, an attorney with Yarborough Applegate in Charleston, said the trauma of the case has stuck with him. It’s an especially poignant warning he confronts in his work as his daughter is now the same age as the girl.

That initial ATV case was about 10 or 12 years ago, he said. Now he and his firm are working on another tragic death case out of Spartanburg that is set to go to trial in September.

“The driver of that side-by-side was drunk and rolled it over and killed our client who was a well-known star baseball player up in the area,” Jennings said. “It’s another tragedy that occurred on one of those machines.”

A side-by-side is another term used to refer to UTVs. The most common injuries Jennings sees in these cases are a result of rollovers caused by a combination of speed and terrain.

While manufacturers place rollover warnings on the dashboards of UTVs and ATVs, encouraging drivers to wear helmets, many fail to heed those warnings and modify their vehicles to bypass internal safety measures.

“The main one seems to be bypassing the seat belt speed inhibitor function. Basically, these machines will have a governor on them, and they’ll only go 10 to 13 miles an hour if the seat belt is not engaged,” Jennings said. “And so, people in the past have purchased little fake seat belt pieces that go into the seat belt latch, and it tricks the machine into thinking that the operator is wearing their seat belt.”

Jeremy Maddox, an attorney with the Law Offices of James Scott Farrin in Charlotte, said he has seen a substantial increase in UTV and ATV popularity—and cases—in the last few years.

“But I also don’t think that people view them the same as they do a regular car or other vehicle,” Maddox said, “and so people are generally a bit more reckless when riding one of these vehicles.”

Brennan Delaney, a partner with Langdon & Emison in Lexington, Missouri, said it is important to correctly identify the vehicle involved in a crash.

“An ATV is like a motorcycle,” he said. “It’s got the handlebars, there’s no rollover protection structure, (…) there’s no seat belts.”

UTVs are enclosed, have a steering wheel and seatbelts, and feature an occupant space more like that of a car or truck.

Maddox cautions attorneys that there is “a whole lot more to these cases” than a standard auto case. Because there are multiple avenues to pursue these cases, it’s hard to determine exactly how many settle and how many go to trial.

“Some of the personal injury negligence cases can settle—they do still require a lot of work beforehand, but a good amount of those will require litigation,” Maddox said. “I’d say most product liability and premises cases are going to require litigation.”

Gaps and exceptions in insurance policies can harm the financial viability of the cases and make it difficult to recover damages. Maddox said ATV and UTV insurance is generally excluded from most standard auto policies in North Carolina because they are not considered motor vehicles.

“So, you cannot register an ATV and most UTVs with the DMV,” Maddox said. “Therefore, you cannot get insurance, auto insurance, on most of them.”

Many homeowners’ insurance policies also exclude UTVs, Jennings said, noting that a thorough investigation regarding who was operating a vehicle and where is necessary to determine what led to a particular incident.

“And very importantly, had there been any modifications done to the side-by-side or UTV?” Jennings added, noting that many outfitters will lift the vehicles or install larger tires than the manufacture intended, increasing the likelihood of a roll-over.

While most ATVs and UTVs don’t qualify for auto-insurance coverage, attorneys may be able to seek recovery from uninsured or underinsured motorist coverage that often contains more liberal wording to the insured’s benefit, Maddox said, adding that most homeowners’ policies have an exception that allows for recreational use on public roads if it’s owned by the insured and used at the insured’s location.

Attorneys struggling to find insurance coverage for their clients should also look at product liability, specifically for occupant retention and rollover defects, Maddox said. Sometimes, the cases can also be tried under premises liability.

Negligence and product liability

Cases tried in North Carolina are much more difficult than those in South Carolina because of the state’s contributory negligence laws.

Joe Sandefur, an attorney with Morgan & Morgan based in South Carolina, said from a contributory standpoint, an injured party in North Carolina found to be even 1 percent at fault is barred from recovery.

“South Carolina, we have comparative, meaning that as long as you are not more at fault than the defendant, whether it’s the defendant driver or the manufacturer, you can still recover,” Sandefur said.

Joshua Moore, a product liability attorney with Morgan & Morgan based in Orlando, added that societal bias—the idea that most ATV and UTV riders are thrill-seekers—is the most difficult aspect of litigating these cases.

Sandefur agreed, likening this mentality to the bias some juries have against motorcycle riders.

“I mean (if) someone gets hit on a motorcycle, there’s a lot of people who are going to say, ‘Well, that’s what you get. You shouldn’t have been on it in the first place,’” Sandefur said.

In addition to wrongful deaths that attorneys like Jennings have litigated, attorneys in this practice area are seeing traumatic brain injuries, orthopedic and spinal injuries. Many of these are caused by rollovers, leading to a swath of product liability cases that primarily involve UTVs.

The rollover structure on top of UTVs is just one of the safety features on the vehicles which also typically contain either harnesses or seatbelts and speed-limiting features.

Moore, who handles mostly product liability cases, said UTVs make up most of the cases they litigate because there are more out there than there are ATVs. His advice to attorneys trying cases against the manufacturers is to avoid trying the case like a simple coefficient of friction rollover.

“Recognize they’re going to roll over … the real defect in our practice is occupant retention,” Moore said. “So, they do very little testing and they do almost no dynamic testing to say, if it rolls over in the real world, here’s what’s going to happen.”

Part of the problem with the industry is that although these vehicles are becoming increasingly similar to cars and other motor vehicles, they are not being regulated in the same manner.

“The manufacturers are the ones who write the regulations. There’s no third party. There’s no government body,” Moore said. “If you’re going to make these a passenger vehicle, then we better have some equivalent, probably government or at least third-party verification of the regulations.”

Currently, the heads of some of the top brands making the vehicles make up the Recreational Off-Highway Vehicle Association which sets safety standards for the industry.

“So that’s a little bit like letting the fox write the rules as to how to guard the hen house,” Moore said. “It’s just not working. It’s clear it’s not working. We need a better system.”

An issue Moore frequently sees in his cases with some manufacturers is a failure to warn. He noted that many riders do not understand how dangerous the vehicles can be and that while he and his children have ridden together, his line of work is a daily reminder that caution is paramount.

“And that’s simply because now I know,” Moore said. “So, I think, to me, the warning—really, really, getting the word out there, not watering it down—is probably the biggest change we need.”

Sandefur said that as the off-road vehicles become more like passenger vehicles, states should require insurance coverage for them. Currently, insurance coverage of any kind is not a requirement to own an ATV or UTV.

Chandler’s Law, a safety act passed in 2011 governing ATVs in South Carolina, was enacted before UTVs became as popular and only pertains to ATVs, said Jennings, who  is monitoring a bill currently before the state legislature that would create safety regulations for UTVs and regulate their use on public roadways.

The expense of litigation

These cases are exceptionally expensive, especially when they involve product liability. Delaney said this is partly due to the number of experts needed to litigate the case.

Maddox added that the cost barriers are especially high because of the amount of work and the number of expert witnesses it takes to try them.

“It’s tough, because there’s a lot of work that goes into these, especially early on, getting out and inspecting the vehicle, inspecting the site,” Maddox said. “So, oftentimes unfortunately, it has to be a pretty substantial injury. When you’re looking at hiring an accident reconstructionist, if you’ve got kind of a soft tissue muscular injury, the expenses may outweigh the potential benefit.”

Sandefur added that where there is no insurance—and there usually isn’t—an injured party is unlikely to recover anything unless the defendant has significant assets.

“If there’s no insurance most of the time, you can get a verdict, and it can be a sizable verdict, because these people are so badly hurt, but it’s not collectible,” he said. “So, the injured party is out of luck on it.”

Moore said that while seeing the human cost of these cases can be heartbreaking, attorneys must often be selective of the cases they take on.

“I think your natural inclination is to try to help everyone, but sometimes, as tragic as it may be, you just can’t,” Moore said. “That can be as hard to deliver as it is to hear, but that’s what I would advise the most, because it’s really easy to spend a lot of money especially on a product case.”