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Cyclists looking for more insurance sought to prove he was employed at the time, court rules he was not. Therefore, he will defend a negligent homicide claim on his own.

By bringing a party to a lawsuit with more insurance or money, many times the defendant can escape with fewer damages. This can happen by the defendant’s actions or sometimes when the plaintiff and the defendant work together to create liability for a third party.

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603 

State: New York

Plaintiff: Randall Fein, etc.,

Defendant: Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent

Plaintiff Claims: Negligence

Defendant Defenses: Was working for his employer at the time of the accident 

Holding: Not working for his employer and not covered by his employer’s Insurance

Year: 2017

Summary 

The plaintiff and/or defendant attempted to bring the defendant’s employer into the lawsuit as a way to bring more money to the settlement table. The defendant while riding a bicycle killed a pedestrian in a crosswalk in Central Park, New York.

The attempt failed because there was no indication the defendant was under the supervision and control of the employer at the time of the accident. 

Facts 

The defendant was riding his bicycle when he struck and killed a pedestrian in the crosswalk.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side. 

Defendant cyclists attempted to bring into the case his employer where he worked as a bicycle coach. His employer, Asphalt Green, Inc. (AGI), would have more insurance, more resources to pay off the plaintiff and possibly allow the defendant to escape damages he could never pay.

This decision was based on a motion for summary judgment filed by the Defendant/Respondent alleged employer AGI.

It cannot be determined from the decision if the employer AGI was brought in by the plaintiff or the defendant. Nor was it developed that the plaintiff and defendant had agreed to some type of reduction in damages against the defendant if the employee was found to be working for the defendant at the time, making the employer also liable.

Analysis: making sense of the law based on these facts.

Under New York law, to be working at the time the employer had to be exercising some control over the employee/defendant at the time of the accident. The court did not find any facts to support that allegation and found “there is no indication that AGI was exercising any control over Cook at the time of the accident.”

Nor was the employer separately liable for a claim of negligent hiring and retention of the defendant. To be liable under that theory the employee had to be working for the employer at the time of the accident and the employer had to have known of the employee’s propensity to ride dangerously in Central Park, where the accident happened.

There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention.

The alleged employer was dismissed from the case.

So Now What?

This was a simple way to bring a lot more money to the table for the plaintiff. It might have been done so with the defendant’s help and/or consent. By agreeing to this the defendant might have been able to negotiate with the plaintiff a reduction in the damages he might owe or be completely dismissed from the case upon settlement with the alleged employer.

Although a scary set of facts, you actually see agreements like this often in litigation as the plaintiff’s attempt to get more money than the defendant might have or ever have and the defendant willing to throw his employer under the buss to save his own jersey.

Probably, the defendant already was terminated from his job. You would not want to employ a cycling coach who had killed someone while riding a bike.

What do you think? Leave a comment. 

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#OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw, Cycling, Bicycling, Crosswalk,
Central Park, Fatality, Employee, Employer, Supervision and Control, Vicarious
Liability, Vicariously Liable, Scope of Employment, Propensity, Riding
Dangerously, Exercise of Control, Excising Control, Negligent Hiring, Negligent
Retention,


 

 

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Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

Fein, etc., v. Cook, 2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

Randall Fein, etc., Plaintiff-Appellant, v Neil L. Cook, Defendant, Asphalt Green, Inc., Defendant-Respondent.

4478, 110902/10

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2017 N.Y. App. Div. LEXIS 6607; 2017 NY Slip Op 06603

September 26, 2017, Decided

September 26, 2017, Entered

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: [*1] Clyde & Co., New York (Jeffrey J. Ellis of counsel), for appellant.

Rutherford & Christie, LLP, New York (Michael C. Becker of counsel), for respondent.

JUDGES: Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.

OPINION

Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 22, 2016, which granted defendant Asphalt Green, Inc.’s (AGI) motion for summary judgment, to the extent of dismissing the amended complaint as against it, unanimously affirmed, without costs.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.

The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI (see Riviello v Waldron, 47 NY2d 297, 391 N.E.2d 1278, 418 N.Y.S.2d 300 [1979]; Weimer v Food Merchants, 284 AD2d 190, 726 N.Y.S.2d 423 [1st Dept 2001]).

Cook’s unsupported belief, as set forth in an [*2] affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action (see Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 476 N.Y.S.2d 895 [1st Dept 1984]), do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in Aycardi v Robinson (128 AD3d 541, 9 N.Y.S.3d 262 [1st Dept 2015]), relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident (see Lundberg v State of New York, 25 NY2d 467, 255 N.E.2d 177, 306 N.Y.S.2d 947 [1969]).

The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention (see White v Hampton Mgt. Co. L.L.C., 35 AD3d 243, 244, 827 N.Y.S.2d 120 [1st Dept 2006]), and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment (see Richardson v New York Univ., 202 AD2d 295, 296-297, 609 N.Y.S.2d 180 [1st Dept 1994]).

We have considered plaintiff’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017


VeloSwap is coming Up Fast, November 4, 2017

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Saturday, November 4, 2017
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VeloSwap is for Everyone!!

Buy Tickets Here
If you like biking, you belong at VeloSwap. Every year, every one is invited to the world’s largest consumer bike swap and expo.
Mark your calendar for Denver’s fall tradition: This one-day-only cycling marketplace and festival happens Saturday, Nov. 4, 2017.
VISIT THE WEBSITE
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Purchase Tickets at Performance Bicycle
All front range Performance Bicycle retailers are selling discounted VeloSwap tickets. Find a shop near you here!
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Happenings On Site!

You’ve come to shop and found that killer deal, now what?

  • Demo a bike
  • Visit Bikes Together Educational area
  • Hang out in the VeloLounge
  • Visit with supplier and reps to discuss what the 2018 lines will look like.
  • More…
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Plan Your Day!

Not sure how best to maximize your VeloSwap day? Visit our Plan You Day section and get some best practice tips!

#VeloSwap
Copyright © 2017 VeloSwap, All rights reserved.
You are receiving this e-mail as you have requested information about VeloSwap.Our mailing address is:

VeloSwap

3002 Sterling Circle

Boulder, CO 80301

Add us to your address book

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Virus-free. www.avast.com

VeloSwap Online Registration Up 35%, See you there

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Saturday, November 4, 2017
Online Consumer Ticket Sales Tracking 35% above Last Year!
RESERVE A BOOTH
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Vendor/exhibitor set-up:

Friday, Nov 3, Noon to 7:30 p.m.; Saturday, Nov 4, 6 a.m. to 8:30 a.m.; “Swappers Corner” vendors set up Saturday, Oct. 22 at 8:30 a.m. More infor here: Load-In Information

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IMPORTANT LINKS

There’s no more captive audience for unloading anything and everything related to bikes and sports gear than at VeloSwap—the world’s largest consumer bike swap and expo.

But its more…Its the perfect opportunity to collaborate and showcase not only your retail storefront and brands, but to work with the supplier reps to tell the complete story of the brands you carry and the knowledge of your staff. Help your existing customers and, potential new customers, make the best buying decisions for that coveted new ride, be that purchase this year or next.

#VeloSwap
Copyright © 2017 VeloSwap, All rights reserved.
You are receiving this e-mail as you have been a vendor at VeloSwap in the past.Our mailing address is:VeloSwap

PO Box 818

Woodstock, VT 05071

Add us to your address book

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2017 Cycling Pro Tour Announced, includes a race in Colorado!

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2017 Pro Road Tour schedule announced

(Oct. 20, 2016) – USA Cycling announced Thursday the 2017 Pro Road Tour (PRT) calendar, which features a tighter and more geographically convenient lineup of events since the 2016 merger of the National Racing Calendar (NRC) and National Criterium Calendar (NCC).

“We have had input from the Pro Road Committee and various teams, athletes and race directors, including a sit-down meeting in May, and we feel that this lineup of events is an excellent step in the second year of the Pro Road Tour,” said Micah Rice, Vice President of Events, USA Cycling. “We had a great first year of the PRT last year, and we feel that 2017 will allow for some excellent racing.”

2017 Pro Road Tour:

Date

Event

Location

Classification

March 30-April 2

Joe Martin Stage Race

Fayetteville, Ark.

UCI 2.2 M/W

April 8-9

Sunny King Omnium

Anniston, Ala.

M/W

April 19-23

Tour of the Gila

Silver City, N.M.

UCI 2.2 M/W

April 30

Dana Point Grand Prix of Cycling

Dana Point, Calif.

M/W

May 3-7

Redlands Bicycle Classic

Redlands, Calif.

M/W

May 28

Winston-Salem Classic Criterium

Winston-Salem, N.C.

M/W

May 29

Winston-Salem Road Race

Winston-Salem, N.C.

UCI 1.1 M/W

June 4

Philadelphia International Cycling Classic

Philadelphia, Pa.

UCI 1.1 Men

June 9-11

Saint Francis Tulsa Tough

Tulsa, Okla.

M/W

June 14-18

North Star Grand Prix

Minneapolis, Minn.

M/W

July 14

Chrono Kristin Armstrong Time Trial

Boise, Idaho

UCI 1.2 M/W

July 15

ASWB Twilight Criterium

Boise, Idaho

M/W

July 19-23

Cascade Classic

Bend, Ore.

UCI 2.2 M/W

July 31-Aug. 6

Larry H. Miller Tour of Utah

Utah

UCI 2.HC Men

Aug. 10-13

Tour of Colorado

Colorado

UCI 2.HC Men

Aug. 19

Rochester Twilight Criterium

Rochester, N.Y.

M/W

Aug. 24-27

Tour of the Commonwealth

Virginia

UCI 2.1 Men

Sept. 1-4

Gateway Cup

St. Louis, Mo.

M/W

Sept. 9

Reading 120

Reading, Pa.

UCI 1.2 Men

Sept. 10

Doylestown Criterium

Doylestown, Pa.

M/W

Sept. 16

Mayor’s Cup Boston

Boston, Mass.

M/W

The revamp of the 2017 calendar aims to eliminate weekends with multiple events and make racing more geographically convenient for teams, allowing them to compete as much as possible from March to September. Given the order and timing of the 2017 PRT, teams can get to a greater amount of races relative to the overall schedule in a more cost-effective manner.

In the event that two or more events fell on the same weekend when creating the 2017 calendar, USA Cycling looked at a number of factors printed as selection criteria in the published bid packet. Size of event, media market/footprint, level of event production, popularity among riders and teams, spectator count—including on-site, broadcast and social media engagement, event history and other criteria were taken into account.

For questions, please contact Rice at mrice@usacycling.org.

 

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Fox Factory Recalls Mountain Bike Shock Absorbers Due to Fall and Injury Hazards

Hazard: The bicycle’s rear shock absorber outer sleeve can rupture, allowing the sleeve to come in contact with other bicycle parts or the rider, posing a fall and injury hazard.

Remedy: Repair

Consumers should immediately stop using bicycles with the recalled rear shock absorbers and return them to the place of purchase for a free repair. Consumers unable to return their bicycles should contact Fox for instructions on receiving a free repair. 

Name of Product: Mountain bike rear shock absorbers

Consumer Contact: Fox toll-free at 855-360-3488 from 8 a.m. to 5 p.m. PT Monday through Friday, email at recall@ridefox.com or online at http://ridefox.com/recall and click on the recall link for more information.

Pictures available here: https://cpsc.gov/Recalls/2017/Fox-Factory-Recalls-Mountain-Bike-Shock-Absorbers-Due-to-Fall-and-Injury-Hazards

Units: About 6,100 (in addition, about 1,200 were sold in Canada)

Description: This  recall involves all model year 2016 and some 2017 FLOAT X2 bicycle rear shock absorbers sold both individually and installed on YT, Giant, Pivot, Intense, Ibis, Scott, Trek, GT, Knolly, Norco, Rocky Mountain, Diamondback, Morpheus, Foes Racing, Orbea and Canyon full-suspension mountain bikes and frames. The solid black or black and gold FLOAT X2 shocks have an air sleeve construction. FLOAT X2 is printed on the external reservoir connected to the blue compression and red rebound adjusters that have X2 and RVS laser etched on them. Recalled shocks do not have a “250 psi max” label directly under the air fill boss on the outer sleeve of the shock.  Recalled shocks and bike models can be identified at http://ridefox.com/recall. 

Incidents/Injuries: The firm has received seven reports of the shock absorber outer sleeve rupturing. No injuries have been reported.

Sold at: Independent bike stores nationwide, online at Jenson USA, Pro Bike Supply, Universal Cycles, Go-ride.com and other online bike retailers from March 2015 through September 2016. The shocks were installed as original equipment on full-suspension mountain bikes and frames sold for between about $2,700 to $10,000 and sold individually as an aftermarket accessory for about $600.

Manufacturer: Fox Factory, Watsonville, Calif.

Manufactured in: United States

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

What do you think? Leave a comment.

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Email: Rec-law@recreation-law.com

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2017 National Championships calendar announced

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2017 National Championships calendar announced

(Sept. 30, 2016) – USA Cycling announced its 2017 National Championships calendar rundown on Friday, which includes dates and locations of 14 events over 10 months next year.

“The 2017 calendar of national championship events pairs our top annual races with very worthy host cities,” said USA Cycling CEO Derek Bouchard-Hall. “Our events range from coast to coast, north to south and everywhere in between. We are thrilled to bring our national championships to cycling fans in nearly every corner of the country.”

The 2017 National Championship calendar includes events in cyclocross, mountain bike, road and track. BMX events will be announced at a later date.

2017 USA Cycling National Championships calendar:

Date Event Location
January 3-8 Cyclocross Hartford, Conn.
January 28 Fat Bike Grand Rapids, Mich.
May 4-7 Collegiate & Para-Cycling Road Grand Junction, Colo.
May 7 Marathon Mountain Bike Arkadelphia, Ark.
June 1-4 Volkswagen Masters Road Columbia County, Ga.
June 20-25 (tentative) Masters Track Rock Hill, S.C.
June 23-25 Volkswagen Pro Road & TT Knoxville, Tenn.
June 29-July 2 Amateur Road presented by Papa John’s Louisville, Ky.
June 29-July 2 Volkswagen Pro Crit & Team Time Trial Louisville, Ky.
July 19-23 Volkswagen Mountain Bike Snowshoe, W. Va.
July 31-August 6 Elite & Junior Track Carson, Calif.
August 12 Hill Climb Colorado Springs, Colo.
September 14-16 Collegiate Track Indianapolis, Ind.
October 20-22 Collegiate Mountain Bike Missoula, Mont.

Collaborating closely with partners in Winston-Salem, USA Cycling and Winston-Salem have mutually agreed to move Masters Road National Championships to Columbia County, Ga., and Para-Cycling Road National Championships to Grand Junction, Colo., to be run with Collegiate Road National Championships. This move will allow Winston-Salem to focus on continuing to build its exciting UCI 1.1 Winston-Salem Cycling Classic while ensuring that USA Cycling delivers an excellent customer experience for our important Master and Para-Cycling athletes. Para-Cycling Road National Championships will run May 4-7, while Masters Road National Championships will be June 1-4 and will feature the iconic Fort Gordon Hills Road Race course and the time trial at Clarks Hill Lake.

The Volkswagen Professional Criterium and Team Time Trial National Championships will join Amateur Road National Championships in Louisville, Ky. June 29-July 2 after the Blue Grass State hosted a successful 2016 Amateur Road National Championships over the summer.

For questions, please contact National Events Vice President Micah Rice at mrice.

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