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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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

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

[*1] Karen Cotty, plaintiff-respondent, v Town of Southampton, et al., defendants-appellants-respondents, Suffolk County Water Authority, defendant-appellant- respondent/fourth-party plaintiff-respondent, Elmore Associates Construction Corp., defendant third-party plaintiff, et al., defendant; Peter Deutch, third-party defendant/fourth-party defendant-appellant, et al., fourth-party defendant. (Index No. 20312/03)

2007-08536

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919

May 19, 2009, Decided

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL: Thomas C. Sledjeski, PLLC (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), for defendant-appellant-respondent Town of Southampton.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs and Jonathan A. Dachs of counsel), for defendant-appellant-respondent/fourth-party plaintiff-respondent Suffolk County Water Authority and defendant-appellant-respondent CAC Contracting Corp (one brief filed).

Loccisano & Larkin, Hauppauge, N.Y. (Robert X. Larkin of counsel), for third-party [*2] defendant/fourth-party defendant-appellant Peter Deutch.

Rosenberg & Gluck, LLP, Holtsville, N.Y. (Andrew Bokar of counsel), for plaintiff-respondent.

JUDGES: PETER B. SKELOS, J.P., MARK C. DILLON, FRED T. SANTUCCI, RUTH C. BALKIN, JJ. DILLON, SANTUCCI and BALKIN, JJ., concur.

OPINION BY: SKELOS

OPINION

[**252] [***658] APPEAL by the defendant Town of Southampton, in an action to recover damages for personal injuries, as limited by its brief, from so much of an order of the Supreme Court (Robert W. Doyle, J.), dated August 6, 2007, and entered in Suffolk County, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it; SEPARATE APPEAL by the defendants Suffolk County Water Authority and CAC Contracting Corp., as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them; and SEPARATE APPEAL by the fourth-party defendant Peter Deutch, as limited by his brief, from so much of the same order as denied that branch of his separate cross motion which was for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. Justice Dillon has been substituted for former Justice Lifson (see 22 NYCRR 670.1[c]).

OPINION & ORDER

SKELOS, J.P. [HN1] When a person voluntarily participates in certain sporting events or athletic activities, an action to recover damages for injuries resulting from conduct or conditions that are inherent in the sport or activity is barred by the doctrine of primary assumption of risk. In this case, where the plaintiff was injured while riding a bicycle on a paved public roadway, we confront the threshold question of whether the plaintiff was engaged in an activity that subjected her to the doctrine of primary assumption of risk.

Beginning on July 24, 2002, pursuant to a contract with the defendant Suffolk County Water Authority (hereinafter SCWA), the defendant CAC Contracting Corp. replaced the asphalt in a trench that had been dug along the edge of Deerfield Road in Southampton for the purpose of installing a conduit for a water [**253] main. Two layers of asphalt were to be laid to fill the trench and bring it level with the preexisting roadway, but at the time of the subject accident, only one layer of asphalt had been laid, leaving a “lip” approximately one inch deep, parallel to the length of the road, where the preexisting roadway and the newly paved section met. At the site of the accident, the lip was not marked by any barricades or traffic cones.

On July 27, 2002, the plaintiff, a member of a bicycle club which engaged in long-distance rides, was the last bicyclist in one of several groups of eight riders cycling on Deerfield Road during a 72-mile ride. The plaintiff testified at a deposition that the road “was not perfectly smooth,” and contained potholes. She had previously ridden on the subject road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction activity on various portions of the road. The road had no shoulder, and the plaintiff was riding approximately one to two feet from the edge of the road, and approximately 1 to 11/2 wheel lengths behind the fourth-party defendant, Peter Deutch, at a maximum speed of 17 to 18 miles per hour. The bicyclists in the front of the line began a “hopping” maneuver with their bicycles to avoid the “lip” in the road. Deutch unsuccessfully attempted the hopping maneuver, and fell in the plaintiff’s path. Seeking to avoid Deutch, the plaintiff swerved and slid into the road where she collided with an oncoming car, sustaining injuries.

The plaintiff commenced this personal injury action against, among others, the Town of Southampton, the SCWA, and CAC Contracting Corp. (hereinafter collectively the defendants), and the SCWA impleaded Deutch. The defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and Deutch cross-moved for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him. The defendants and Deutch (hereinafter collectively the appellants) contended, inter alia, that the plaintiff had assumed the risks commonly associated [***659] with bicycle riding. The Supreme Court denied the appellants’ motions.

[HN2] Under the doctrine of primary assumption of risk, 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 (see Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49). Risks inherent in a sporting [**254] activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d at 439). Because determining the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him by others” (Turcotte v Fell, 68 NY2d at 437), the [*3] plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist. 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” (id. at 438, quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).

The policy underlying the doctrine of primary assumption of risk is “to facilitate free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29). Without the doctrine, athletes may be reluctant to play aggressively, for fear of being sued by an opposing player. [HN3] As long as the defendant’s conduct does not unreasonably increase the risks assumed by the plaintiff, the defendant will be shielded by the doctrine of primary assumption of risk (see Morgan v State of New York, 90 NY2d at 485; Benitez v New York City Bd. of Educ., 73 NY2d at 658; Muniz v Warwick School Dist., 293 AD2d 724, 743 N.Y.S.2d 113).

[HN4] The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport (see Trevett v City of Little Falls, 6 NY3d 884, 849 N.E.2d 961, 816 N.Y.S.2d 738; Sykes v County of Erie, 94 NY2d 912, 728 N.E.2d 973, 707 N.Y.S.2d 374; Ribaudo v La Salle Inst., 45 AD3d 556, 846 N.Y.S.2d 209). 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 (see Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 N.E.2d 288, 739 N.Y.S.2d 85; Turcotte v Fell, 68 NY2d at 439; Rosenbaum v Bayis Ne’Emon, Inc., 32 AD3d 534, 820 N.Y.S.2d 326; Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526).

The Court of Appeals has had no occasion to expound upon the threshold question of what type of activity qualifies as participation in a sporting event for purposes of applying the doctrine of primary assumption of risk. In Turcotte v Fell, for [**255] example, the Court had little difficulty in concluding that the doctrine applied to the plaintiff, a professional jockey riding in [***660] a horse race at a track owned and operated by the New York Racing Association. Here, had the plaintiff been a professional athlete involved in a bicycle race on a track or a closed course, the doctrine of primary assumption of risk clearly would apply (cf. Morgan v State of New York, 90 NY2d at 486; Joseph v New York Racing Assn., 28 AD3d at 108-109). This case, however, presents different circumstances.

[HN5] In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred. In our view, it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. Such a broad application of the doctrine of primary assumption of risk would be completely disconnected from the rationale for its existence. The doctrine is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition (see Sykes v County of Erie, 94 NY2d at 913 [“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 (see Caraballo v City of Yonkers, 54 AD3d 796, 796-797, 865 N.Y.S.2d 229 [“the infant plaintiff cannot be said, as a matter of law, to have assumed risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity [*4] of recreational noncompetitive bicycling, and using the bicycle as a means of transportation”] [citations omitted]).

In prior decisions involving injuries sustained by bicycle riders, this Court has concluded that the doctrine of primary assumption of risk applies in some situations, but not in others. For example, in Calise v City of New York (239 AD2d 378, [**256] 657 N.Y.S.2d 430), the plaintiff was thrown from a mountain bike, which he was riding on an unpaved dirt and rock path in a park, when the bike struck an exposed tree root. This Court held that the plaintiff’s action was barred by the doctrine of primary assumption of risk, reasoning that “[a]n exposed tree root is a reasonably foreseeable hazard of the sport of biking on unpaved trails, and one that would be readily observable” (id. at 379; see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820-821, 839 N.Y.S.2d 183 [doctrine of primary assumption of risk applied to plaintiff who was injured when his bicycle struck a hole in a dirt trail located in a wooded area]; Restaino v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [doctrine of primary assumption of risk applied to plaintiff whose bicycle struck “a pothole or rut in the closed parking lot/driveway area of a public school”]; Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [doctrine of primary assumption of risk applied to plaintiff who was injured when her bicycle struck a hole in the [***661] ground as she rode on a dirt base path of a baseball field]).

By contrast, in both Vestal v County of Suffolk (7 AD3d 613, 776 N.Y.S.2d 491) and Moore v City of New York (29 AD3d 751, 816 N.Y.S.2d 131), this Court held that the 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’” (Moore v City of New York, 29 AD3d at 752, quoting Vestal v County of Suffolk, 7 AD3d at 614-615; see Caraballo v City of Yonkers, 54 AD3d at 796-797; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530 [defendant failed to establish, as a matter of law, that action by plaintiff, who was thrown from his bicycle when he hit a rut in a paved road, was barred by primary assumption of risk doctrine]). Significantly, this Court reached the same conclusion in Phillips v County of Nassau (50 AD3d 755, 856 N.Y.S.2d 172), holding that the doctrine of 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” (id. at 756).

These decisions recognize that [HN6] 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 [**257] 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” (Schiavone v Brinewood Rod & Gun Club, Inc., 283 AD2d 234, 237, 726 N.Y.S.2d 615).

Of course, the distinction between using a bicycle to engage in a sporting activity and using a bicycle for some other purpose will sometimes be elusive. It is important to draw that line, however, because “[e]xtensive and unrestricted application of the doctrine of primary assumption of risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiff’s own negligence barred recovery from the defendant'” (Trupia v Lake George Cent. School Dist., 62 A.D.3d 67, 875 N.Y.S.2d 298, 2009 NY Slip Op 01571, [3d Dept 2009], quoting Pelzer v Transel El. & Elec. Inc., 41 AD3d 379, 381, 839 N.Y.S.2d 84). That tendency is illustrated by the appellants’ briefs in this case, which repeatedly emphasize that the plaintiff was riding too closely behind Deutch. That argument is misplaced, since the issue of whether the plaintiff was following too closely, or otherwise acted negligently, is a matter of [HN7] comparative fault, which must be determined by the factfinder at trial and not as a matter of law at the summary judgment stage (see CPLR 1411; Roach v Szatko, 244 AD2d 470, 471, 664 N.Y.S.2d 101; Cohen v [*5] Heritage Motor Tours, 205 AD2d 105, 618 N.Y.S.2d 387).

In sum, [HN8] it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor. Adopting such a rule could have the arbitrary effect [***662] of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of risk so expansively.

For the foregoing reasons, the appellants failed to make a prima facie showing that the primary assumption of risk doctrine is applicable to the activity in which the plaintiff was engaged at the time of her accident. Thus, the Supreme Court properly denied the defendants’ motions for summary judgment dismissing the complaint and all cross claims insofar as asserted [**258] against them and Deutch’s cross motion for summary judgment dismissing the fourth-party complaint and all related cross claims insofar as asserted against him as barred by the doctrine of primary assumption of risk.

Moreover, the defendants failed to establish as a matter of law that the unbarricaded lip created by the road construction was not a “unique and . . . dangerous condition over and above the usual dangers that are inherent” (Owen v. R.J.S. Safety Equipment, Inc.., 79 N.Y.2d 967, 970, 591 N.E.2d 1184, 582 N.Y.S.2d 998) in the activity of bicycle riding on a paved roadway (see Vestal v County of Suffolk, 7 AD3d 613, 614, 776 N.Y.S.2d 491 [plaintiff did not assume risk of being injured while riding bicycle on defective paved pathway where there were “no signs, chains, or barriers” present “to indicate that it was not suitable for bicycling“]; see also Phillips v County of Nassau, 50 AD3d 755, 856 N.Y.S.2d 172; Berfas v Town of Oyster Bay, 286 AD2d 466, 729 N.Y.S.2d 530).

The appellants’ remaining contentions are without merit.

Accordingly, we affirm the order insofar as appealed from.

DILLON, SANTUCCI and BALKIN, JJ., concur.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.