Besides riding a BMX course before it is open is not smart.
Plaintiff: Bradley J. R. Cottom and Melissa Cottom
Defendant: USA Cycling, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: the danger which injured the plaintiff was Open and Obvious
Holding: for the defendant on its motion for summary judgment
In this Federal District Court case from Michigan, the court discusses the open and obvious rule applied to a mountain biker on someone else’s land. In this case, the plaintiff entered upon 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 a dirt track being built and went over to investigate. He saw construction workers as well as cyclists on the track. Talking to one construction worker, he as assured the track was safe. He rode around the track once without incident. On the second lap, he fell when he hit a rock or slipped on loose gravel and hyperextended his knee and broke his leg.
Summary of the case
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 other two categories describing people on another’s land are trespasser and invitee. A trespasser is there without any benefit for the land owner generally, and an invitee is one who is there for the benefit to the landowner and at the bequest of the landowner.
The defense is whether the danger that injured the plaintiff was hidden or open and obvious.
USA Cycling [defendant] argues that because the condition of the track was open and obvious, it did not owe Cottom [plaintiff] a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident.
To prove the danger that injured the plaintiff was not open and obvious the plaintiff must complete a two-step test. Plaintiff must prove that the defendant should have known of the potentially dangerous condition and that 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.
…there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning. A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.”
The plaintiff’s experience, visual review of the track and one lap without incident defeated his claim.
Cottom, an experienced BMX cyclist, was able to casually 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 tip over.
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 was able to inspect the track himself, had seen other bikers on the track and ridden the track once before falling on this second lap the plaintiff had a chance to see any dangers. The danger that cased the injury, therefore, was open and obvious and the defendant did not owe any greater duty to the defendant licensee.
Once this burden was met by the defendant the only option left to the plaintiff was to argue the danger was unreasonable. Whether there were special aspects of the danger that created or differentiated the risk. The court explained the differences this way.
For example, a pothole in a parking lot presents an open and obvious risk for which the premise’s owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury.
The plaintiff was unable to argue that a rock on a dirt track was an unreasonable danger.
Thousands of people ride bikes everyday, 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.
The risks of the track were ordinary, not an unguarded deep pit. Nor was he able to prove the person who gave him the assurance that the track was safe was an employee of the defendant or that the person providing the warning had any greater knowledge about the track than the plaintiff.
The court granted the defendants motion for summary judgment.
So Now What?
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.
If you are a land owner offering your land to someone, you should review your risks with an attorney specializing in real estate. You have multiple defenses available to you so you can allow people the opportunity to recreate. The first is all states have a statute that provides indemnity for landowners who allow others to recreate for free. These laws are called Recreational Use statutes. They differ wildly from state to state and the amount of protections they provide. Make sure you understand what you must and must not do to qualify for this protection.
What do you think? Leave a comment.
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Bradley J. R. Cottom and Melissa Cottom, Plaintiffs, v. USA Cycling, Inc., Defendant.
Case No. 1:01-CV-474
United States District Court for the Western District of Michigan, Southern Division
2002 U.S. Dist. LEXIS 6745
April 11, 2002, Decided
April 11, 2002, Filed
Counsel: For BRADLEY J.R. COTTOM, MELISSA COTTOM, plaintiffs: Michael J. Cronkright, Michael J. Cronkright, PC, Lansing, MI.
For USA CYCLING INC, defendant: John J. Hoffman, Thomas, DeGrood, Witenoff & Hoffman, Southfield, MI.
Judges: GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.
Opinion By: GORDON J. QUIST
Plaintiffs, Bradley Cottom (“Cottom”) and his wife Melissa, filed this premises liability action against Defendant, USA Cycling, Inc. (“USA Cycling“), in state court after Cottom suffered injuries in a bicycling accident. USA Cycling removed the action to this Court based on diversity jurisdiction, and the matter is now before the Court on USA Cycling’s motion for summary judgment. Oral argument on the Motion was heard on April 9, 2002.
Cottom, an avid dirt bicycle rider, participated in competitive BMX bicycle racing from age 14 to 20. (Cottom Dep. at 4-5, Pl.’s Br. Resp. Ex. A.) Since that time, he has primarily restricted himself to recreational riding on streets and bike trails. n1 (Id. at 10-11, 20.) At approximately 5 p.m. on July 12, 2000, Cottom took his high performance Diamondback Reactor BMX bicycle to Gier Park in Lansing, Michigan. (Id. at 6, 15.) USA Cycling was constructing a dirt bike race track at the park, and Cottom went to investigate the progress of the track construction. (Id. at 6-7.) Cottom had been to the park approximately one month before and had seen a bulldozer working at the site. (Id. at 7-9.) At that time, he observed approximately 12 riders using the track. (Id. at 9.) When Cottom arrived at the park on July 12, he saw a bulldozer and men who appeared to be construction workers, but they were not working on the track at the time. (Id. at 47, 103.) Other people present at the park were picking up rocks and removing them from the track. (Id. at 93, 103.) There was no fence or other barricade around the track, and no warning or construction signs were posted. (Compl. PP 8-9, 19f.) Other riders were using the dirt track, and Cottom retrieved his bike from his truck in order to join them on the track. (Cottom Dep. at 26-28.) The track was dry, and it was still daylight when he began to ride. (Id. at 26.)
n1 Cottom was 36 years old at the time of his deposition in November 2001. (Cottom Dep. at 4.)
Cottom rode his bike around the track one time without incident. (Id. at 29.) Plaintiffs allege in the Complaint that Cottom stopped to discuss the track conditions with a worker at the track and that the worker assured him that the track was safe. (Compl. P 10.) Plaintiffs have not presented evidence regarding the identity of this person. It is unknown whether the person was an employee or agent of USA Cycling, a construction worker employed by an independent contractor, or merely a bystander, a passerby, or a volunteer picking up rocks. There is nothing in the record to indicate that the person had any more experience on the track or knowledge of the track conditions than Cottom had.
On his second lap around the track, Cottom was riding through a banked turn and heading toward a jump when he lost control of his bike. (Cottom Dep. at 61.) He hyperextended his knee while attempting to recover control and fell to the ground, injuring his leg. (Id. at 32-34, 40.) Cottom testified at his deposition that he was not sure exactly what caused his accident, but he surmised that his tire may have hit a rock or a rut or sank into loose, gravelly dirt. (Id. at 30-32, 92-93.) According to Cottom, his bike was functioning properly and he was “taking it easy” by traveling between 5-10 miles per hour at the time, so neither the condition of his bike nor his speed caused him to lose control. (Id. at 41, 91-92.) Cottom’s wife was present at the park at the time, but she did not see the fall. (Id. at 42.)
Cottom was taken to a hospital where he was admitted for four days. (Compl. P 13.) He fractured his lower left leg in the fall and has undergone three corrective surgeries on his leg and knee since the accident. n2 (Medical Records, Pl.’s Br. Resp. Ex. B.)
n2 The Complaint states that Cottom injured his right leg, but at his deposition, Cottom testified that it was his left leg that was injured. (Compl. PP 11, 23; Cottom Dep. at 33.) Cottom’s medical records confirm that it was his left leg that was fractured. (Medical Records, Pls.’ Br. Resp. Ex. B.)
[HN1] Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S. Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S. Ct. at 2511 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)).
[HN2] A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with “concrete evidence” that there is a genuine issue of material fact for trial. Id.; Frank v. D’Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992)(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
The parties agree that Michigan law governs the substantive issues of this case because all of the events occurred in Michigan, the forum state. (Def.’s Br. Supp. at 8-9; Pls.’ Br. Resp. at 4.) See Haque Travel Agency, Inc. v. Travel Agents Int’l, Inc., 808 F. Supp. 569, 572 (E.D. Mich. 1992).
USA Cycling makes several arguments as to why it is entitled to summary judgment. Because the Court believes that the “open and obvious” argument is dispositive, the Court will address only that argument.
USA Cycling argues that because the condition of the track was open and obvious, it did not owe Cottom a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident. The Court agrees.
For the purposes of this motion, the parties agree that Cottom entered USA Cycling’s premises as a licensee. (Def.’s Br. Supp. at 10; Pls.’ Br. Resp. at 8-9.) The Michigan Supreme Court has defined licensee status and explained the duty owed to a licensee by a premises owner:
[HN3] A “licensee” 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.
Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-97, 614 N.W.2d 88, 91-92 (2000)(citation omitted).
Plaintiffs contend that USA Cycling knew of the dangers presented by an unfinished dirt track, and they submit as evidence publications from USA Cycling regarding safety guidelines and its recommendations concerning BMX track conditions that discuss the dangers of unpacked, loose dirt tracks. (Insurance Guidelines and Safety Manual, Pls.’ Br. Resp. Ex. F; Building the Track – Suggestions, Pls.’ Br. Resp. Ex. E.) Even assuming that USA Cycling knew of the dangers presented by the track at Gier Park, this assertion only gets Plaintiffs halfway over their burden of proof. In order to hold USA Cycling liable for Cottom’s accident, Plaintiffs must not only show that USA Cycling knew or should have known of the potential danger on the premises but also that Cottom did not know about it. This is because [HN4] there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning.” Pippin v. Atallah, 245 Mich. App. 136, 143, 626 N.W.2d 911, 914 (2001). A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.'” Abke v. Vandenberg, 239 Mich. App. 359, 361-62, 608 N.W.2d 73, 75 (2000) (per curiam) (alteration in original) (quoting Novotney v. Burger King Corp., 198 Mich. App. 470, 475, 499 N.W.2d 379, 381 (1993)). The test is an objective one, asking whether a reasonable person in the position of the plaintiff would foresee the danger. Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 11, 574 N.W.2d 691, 696 (1997).
Cottom, an experienced BMX cyclist, was able to casually 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 tip over. Therefore, USA Cycling is absolved of potential liability unless Plaintiffs can show that the condition of the track posed “an unreasonable risk of harm.” Abke, 239 Mich. App. at 361, 608 N.W.2d at 75 (citing Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich. App. 490, 498-99, 595 N.W.2d 152, 156-57 (1999)). Michigan courts have explained that “special aspects of a condition [might] make even an open and obvious risk unreasonably dangerous.” Lugo v. Ameritech Corp., 464 Mich. 512, 517, 629 N.W.2d 384, 386 (2001). In Lugo, the Michigan Supreme Court discussed the “special aspect” exception to the open and obvious doctrine:
[HN5] With regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.
. . . .
. . . In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.
Id. at 517-19, 629 N.W.2d at 387-88. For example, a pothole in a parking lot presents an open and obvious risk for which the premises owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury. Id. at 520, 629 N.W.2d at 388.
Cottom has failed to present a genuine issue of material fact about whether the unfinished condition of the track made it unreasonably dangerous. 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 everyday, 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. The track at Gier Park presented these same types of dangers, making it more like an ordinary pothole and less like a deep, unguarded pit. Finally, Cottom has failed to support with any evidence the allegation that an employee or agent working on the track assured him that it was safe for use. There is no indication in the record that this person was actually an employee or agent of USA Cycling rather than a passerby or bystander who came to watch people ride on the track. Moreover, there is nothing to demonstrate that he or she was any more knowledgeable about the safety of the track conditions than was Cottom. In fact, Cottom had the benefit of riding around the track one time and experiencing the track conditions firsthand, and he himself concluded that the track was suitable for riding. (Cottom Dep. at 48-49.)
USA Cycling is entitled to summary judgment because the dangers presented by the track were open and obvious and Plaintiffs have failed to show that there were special aspects of the track making it unreasonably dangerous.
For the foregoing reasons, the Court will grant USA Cycling’s motion for summary judgment.
An Order consistent with this Opinion will be entered.
Dated: APR 11 2002
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
For the reasons stated in the Opinion filed this date,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (docket no. 24) is GRANTED.
This case is closed.
Dated: APR 11 2002
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE