Land Owner of cycling track not liable for those dangers you can see.

Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745 

In this Federal District Court case from Michigan, the court discusses the open and obvious rule applied to people on another’s land. In this case, the plaintiff entered an unfinished BMX or dirt bike track being built by USA Cycling, Inc., and was injured in loose dirt. Because the condition of the track was open and obvious he could not recover from the defendant.

The plaintiff was a fairly experienced BMX rider. He had seen the dirt track being built and went over to investigate. He saw construction workers as well as cyclists on the track. He rode around the track once without incident. On the second lap, he fell when he hit a rock or slipped on loose gravel hyperextended his knee, and broke his leg.

Under Michigan’s law, the plaintiff was identified as a licensee. A licensee is someone who:

…is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.

The issue is whether the danger that injured the plaintiff was hidden or open and obvious. To prove the danger that injured the plaintiff was not open and obvious the plaintiff must complete a two-step test.

1. The plaintiff must prove that the defendant should have known of the potentially dangerous condition; and,
2. The plaintiff did not know about the dangerous condition.

The court stated the plaintiff failed to prove the second part of the test because there is no requirement to safeguard licensees from dangers that are open and obvious because those dangers come with their own warnings. The open and obvious test is an objective one, whether a reasonable person in the position of the plaintiff would have foreseen the danger.

Cottom, an experienced BMX cyclist, was able to inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to lose traction and fall.

First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes every day, and many of them fall while riding their bikes on sidewalks, bike paths, tracks, or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case.

Because the plaintiff could inspect the track himself, had seen other bikers on the track, and had ridden the track once before falling on this second lap the plaintiff had a chance to see any dangers. The danger that caused the injury, therefore, was open and obvious and the defendant did not owe any greater duty to the defendant licensee for the danger.

So?
 
This decision besides explaining the landowner’s duty for hidden dangers and the defense of open and obvious danger has great language in it for any cycling decision. The court sets forth facts that falling is a part of cycling. “Bumps, bruises, and scrapes or occasionally broken bones or more serious injures” are normal for bike riders. If you are a land owner, bike rental company, or cycling retailer this is important language to keep available or even incorporate into your release.

What do you think? Leave a comment.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk

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To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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