New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

Cotty v Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

Basically, in New York, injuries from the path or roadway, you assume the risk mountain biking, and you probably did not assume the risk

Military cyclists ride in a pace line as they ...

road biking.

The plaintiff was a member of a bicycle club and was on a club ride. The ride was a 72-mile ride, and she was part of the pace line. A pace line is a group of cyclists riding single file. When the lead cyclists starts to tire or slow that cyclists pulls out of the line and drifts to the rear, and the 2nd cyclists takes over the front spot. A pace line allows the cyclists to go faster easier because each is taking a turn at the front doing 100% of the work, and the cyclists in the back are conserving energy.

The cyclists in front of the plaintiff went down in a construction area when he was unable to negotiate the lip between paving areas. The plaintiff tried to avoid the downed cyclists slid into the roadway into a car.

The defendants were the construction company working on the road, the city that owned the road, other government entities and the cyclists who went down in front of the plaintiff.

The city defendant filed this motion for summary judgment arguing the plaintiff could not sue because of the doctrine of primary assumption of the risk. In New York, Primary Assumption of the Risk prevents suits in sporting or athletic events from “conduct or conditions that are inherent in the sport or activity.”

The trial court denied the motion, and this appeal followed. The appellate court looked at the issue as to whether the plaintiff was engaging in an activity that subjected her to the doctrine. That is, was the plaintiff when riding a bike in this manner engaging in a sporting event or athletic activity.

Appellate Court Analysis

The court did a thorough review of the issues in this case as they applied to the doctrine of primary assumption of the risk. The court defined the doctrine as:

English: An animation of a group of cyclists r...

English: An animation of a group of cyclists riding in a chain gang or pace line. (Photo credit: Wikipedia)

…a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity…. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.

The effect of a plaintiff consenting to the risk (even if the plaintiff is not voluntarily or knowingly consenting) is to relieve the defendant of the duty of care that would otherwise exist in the sport or activity.

Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence

The reason for the doctrine is to create free and vigorous participation in athletic activities. If the doctrine did not exist with regards to sporting events, players would not fully participate, not play hard for fear of legal liability for doing so. However, the doctrine does not apply to conduct on the part of a defendant who increases the risk of harm to the plaintiff.

The doctrine not only applies to the other players in the sport or activity; it has been applied to the playing surface, the field. “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies.”

The court then looked at the facts of the case to see if the plaintiff fell into the purview of the doctrine of assumption of the risk. The court first looked at what the doctrine did not apply to with regard to municipalities.

The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition [“the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises”]), and such a result does not become justifiable merely because the roadway in question happens to be in use by a person operating a bicycle, as opposed to some other means of transportation….

The court reviewed mountain biking cases first and found in three situations that other courts had applied the doctrine to issues with the trail. Mountain bikers striking an exposed tree root, riding into holes in the trail, or hitting potholes or ruts in the path where all found to be subject to the doctrine and barred suit by the plaintiff.

The court looked at road biking on streets and found the courts had held in those situations that the doctrine did not apply.

…plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, “cannot be said as a matter of law to have assumed risk of being injured as a result of a defective condition on a paved pathway merely because [they] participated in the activity of bicycling

Consequently, this court could not say that the plaintiff’s activities at the time of her injuries such that the doctrine of assumption of the risk would bar her suit.

…primary assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders

…riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road bicycle riding, can more readily be classified as sporting activity. Indeed, the irregular surface of an unimproved dirt-bike path is “presumably the very challenge that attracts dirt-bike riders as opposed to riding on a paved surface

One interesting point the court made was differentiating between the doctrine of primary assumption of the risk and comparative negligence which had incorporated simple assumption of the risk into it. The defendant had argued that the plaintiff assumed the risk for riding to closely behind the defendant who fell in front of her. The court held that was a comparative negligence issue for the jury, not an example of primary assumption of the risk.

Primary assumption of the risk is the play of the game, the sport or the surface. If the plaintiff’s injuries arise from how the plaintiff played the game than that is an issue of contributory negligence.

So Now What?

Whether or not a government entity would be liable for an injury on the roadway is going to be specific by state. New York has a reputation of allowing suits

English: Tour de Romandie 2009 - 3rd stage - t...

English: Tour de Romandie 2009 – 3rd stage – team time trial Français : Tour de Romandie 2009 – 3e étape – contre-la-montre par équipes (Photo credit: Wikipedia)

against municipalities for such things. As such most other state probably would not. However, that requires a state by state review which you should have conducted if needed in your state.

What comes from this lawsuit that you can do if you operate a cycling club or run a ride (such as a retailer) is to have all riders sign a release that protects the club and other riders. The defendant in this case who fell in front of the plaintiff was sued for falling down on a bicycle. That seem absurd to me.

If you run a club, event or rides, make sure that an injured party cannot come back and sue your or other riders for something that is a part of cycling. If you do not believe that cyclists fall, watch the first 10 days of the 2012 Tour de France!

What do you think? Leave a comment.

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2 Comments on “New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.”

  1. Daily Young says:

    I couldn’t agree more with the first comment. I can vaguely remember the last time that I went down a rode and didn’t see either construction, uneven lanes, potholes, or gravel. For a cyclist I would think they all would have to be aware of the risk they run riding on these surfaces, at high speeds. And to echo, if professionals fall often, it’s not ubsurd that amateur would have accidents just as often, if not more. This is clearly an assumption of risk.


  2. Jacob King says:

    This is an obvious assumption of risk. Like the end of the article says, watch the tour de France. Professional bikers fall during the biggest races so why wouldn’t we assume amateurs fall even more. When they get on the bike and ride on paved surfaces they should automatically go into the situtation knowing the roads have their imperfections and that road work is not uncommon.


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