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The safety precautions undertaken by the defendant in this mountain bike race were sufficient to defeat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality.

Tour of the Canyonlands was an 18-mile mountain bike race near Moab, Utah. Six miles of the course were on roads. The course was an open course meaning, there might be automobile traffic on the roads; the roads would not be closed to traffic.
Two plaintiffs’ struck a truck on the road, killing one of the mountain bikers.

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

State: Utah, United States Court of Appeals for the Tenth Circuit

Plaintiff: Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall,

Defendant: USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc.,

Plaintiff Claims: negligence, gross negligence, and wrongful death

Defendant Defenses: release, failure to state a claim to prove gross negligence

Holding: For the Defendant

Year: 2009

This is an attempt to recover damages by parents for the injuries they suffer when a son is hurt or dies. It probably involves as many emotional issues as it does legal ones such as how and why did my son die, why didn’t they do more to keep my son alive and possibly even some desire to protect others from the same
fate.

Two mountain bikers entered the Tour of the Canyonlands mountain bike race. Both had entered the race before and were classified as expert racers. They both signed a release prior to the race and had been told the first six miles of the course would be an open course.

An “open course” is one that is not closed to automobile traffic. Cycling on an “open course,” whether on a mountain bike or road bike, you will be encountering cars and be passed by cars. Approximately 25% of all mountain bike races are open course and a majority of road bike races in the US.

The race organizers had put up signs before the racing telling motorists that there was going to be a race. The organizers had volunteers along the route and first aid people to assist riders. They had made the effort to notify all campers on the race route about the race. The defendant driving the truck involved in the collision stated he was not notified about the race, but other people camping with him stated they had been notified.

The accident occurred when one racer attempted to pass another racer on the open part of the course while passing the automobile coming from the opposite direction. The automobile was a Ford Excursion pulling a 30’ trailer. The mountain bikers tangled, and one of the plaintiffs’s crashed into the truck.

Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

The release stopped the claims based on simple negligence and wrongful death of the plaintiffs. That left the claims for gross negligence. The Federal District Court (trial court) dismissed the plaintiff’s claims because the plaintiff had not pled any facts to prove their claim of gross negligence.

On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, they were not grossly negligent.

There was also an issue of the plaintiff’s expert witness whom the trial court had prevented from testifying because the trial court found him to not have any experience as a mountain bike race expert.

The plaintiff’s appealed the trial court’s decision.

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

The appellate court had a long discussion on the courts process to dismiss cases based on motions for summary judgment. The court then started into the analysis of the facts in this case and how they applied to the law.

Gross negligence in Utah is a failure on the part of the defendant to observe even slight care. “Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” The plaintiff to prove the defendant was grossly negligent must proof “conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”

The facts argued by the plaintiff can then only be interpreted in one way for a court to determine gross negligence cannot be proved. However, even if there are different ways of viewing the facts, gross negligence claims can be beat if there is evidence the defendant did show care or was not lacking care.

However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants took precautionary measures and did not ignore known and obvious risks.

In this case, the court could point out numerous instances where the defendant was not careless. “… the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

The court also looked at the knowledge of the racers and the fact they assumed the risk of the sport and injuries they encountered.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they
were grossly negligent.

Although the issue of assumption of the risk was reviewed by the court and it obviously factored into the court’s analysis, it was not stated by the court as a reason for its decision.

The plaintiff argued the driver’s statements showed the defendant not done anything. However, the court seemed to discount the driver’s statements and found everyone else did know about the race. A defendant in the case looking not to lose a lawsuit would be more inclined to state he had not been notified.

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of fact with regard to gross
negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

Utah requires a high disregard of safety issues to constitute gross negligence. Since automobile accidents were rare in mountain bike racing, this being the only one in the ten years of running this event, automobile accidents were not considered a serious threat to the participants. The issues were brought up by the plaintiff’s expert witness whom the court dismissed in one paragraph.

Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to gross negligence in light of the other safety steps taken by the organizers of this race.

Nor is gross negligence proved by 20/20 hindsight.

An examination of cases in other jurisdictions shows that courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hind-sight might counsel.

The court found the plaintiff’s had not presented evidence that could prove to a jury that the race organizers were grossly negligent and the actions of the race organizers in attending to the safety issues discounted or eliminated the plaintiff’s gross negligence claim.

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude that the race organizers were grossly negligent.

The court then went on to support the trial courts exclusion of the plaintiff’s expert witness because the expert witness did not have sufficient experience in mountain bike racing. 

There was a concurring opinion in this case. A concurring opinion is one where a justice sitting on the appeal agrees with the outcome of the decision but for a different reason than the majority of the justices. In this case, the concurring judge felt the plaintiff’s expert witness statements were enough to beat the gross negligence claim.

In this case, he would have excluded the plaintiff’s expert witness testimony, but would have used his testimony where he stated the defendants exercised some degree of care for the participants as a reason to dismiss the gross negligence claim.

The dismissal of the claims of the plaintiff by the trial court was upheld.

So Now What?

I am seeing case after case where gross negligence claims are made to defeat a release. Twenty years ago, few cases pleaded a claim for gross negligence, and now every case does. As such part of your preparation for any activity, trip or program is to make sure you do not do anything that could support a gross negligence claim.

Gross negligence claims rarely proved at trial, extremely rare. As such their main reason they are pled is to get passed the motion for summary judgment, which increases the cost of continuing the case substantially. Therefore, any settlement offer will be increased significantly. A gross negligence claim hanging over the head of a defendant is also a real threat as some insurance companies will not pay to defend such a claim judgment based on gross negligence are not dischargeable in Bankruptcy.

Planning what safety precautions you should undertake should first start with understanding what your industry does. Know how other races are put on and what precaution to take is the first step. Then looking at your course, your participants or your ability to respond, you should modify the safety program to meet those differences. 

Finally, have a release and fully inform every one of the risks. Most importantly inform them of all risks, maybe even repeatedly, that are different from everyone else or that substantially increase the risk. Assumption of the Risk is the second most-used defense to negligence claims in recreation cases after a release. Always use both.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall, Plaintiffs-Appellants, v. USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc., a Colorado Corporation; Eric Jean, an individual, Defendants-Appellees.

No. 07-4247

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

575 F.3d 1120; 2009 U.S. App. LEXIS 17822

August 10, 2009, Filed

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the District of Utah. (D.C. No. 2:05-CV-00675-TS).

Milne v. USA Cycling, Inc., 489 F. Supp. 2d 1283, 2007 U.S. Dist. LEXIS 42579 (D. Utah, 2007)

COUNSEL: Steve Russell (Jordan Kendall with him on the briefs) of Eisenberg & Gilchrist, Salt Lake City, Utah, for Plaintiffs-Appellants.

Allan L. Larson (Richard A. Vazquez with him on the briefs) of Snow, Christensen, & Martineau, Salt Lake City, Utah, for Defendants-Appellees.

JUDGES: Before McCONNELL, EBEL, and GORSUCH, Circuit Judges. GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

OPINION BY: EBEL

OPINION

[*1122] EBEL, Circuit Judge.

This diversity jurisdiction case involves Utah state law claims of negligence, gross negligence, and wrongful death based on a tragic accident that occurred during a bicycle race called the “Tour of Canyonlands” near Moab, Utah. During the race, one or more of the racers collided with an SUV and trailer driving in the opposite direction. One racer was killed, and another was badly injured. The injured rider and the decedent’s mother–in her own capacity and on behalf of her son’s estate–filed suit against the race’s organizers and the entities responsible for promoting and overseeing the race.

The district court granted defendants’ motion to strike plaintiffs’ expert’s second [**2] affidavit, and granted summary judgment for the defendants on all claims. On appeal, the plaintiffs only challenge the district court’s decision to exclude their expert’s opinion and to grant summary judgment for the defendants on the plaintiffs’ claims of gross negligence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND 1

1 Because this case comes to us on defendants’ motion for summary judgment, we construe all facts in plaintiffs’ favor. See Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) ( [HN1] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 (10th Cir. 2007)) (ellipses in original).

The “Tour of the Canyonlands” (“TOC”) is a cross-country mountain bike race [*1123] through the canyons outside Moab, Utah. The race begins on six miles of an “open course” dirt road, where racers share the road with automobile traffic, and continues for another nineteen miles on rugged off-road paths. On April 25, 2005, two racers–Samuel B. Hall and Robert J. Milne–were racing the TOC when they [**3] struck a Ford Excursion SUV, and the trailer it was pulling, on the six-mile open course portion of the race. Mr. Hall died at the scene from severe head trauma. Mr. Milne was seriously injured, but survived the accident.

Following the accident, Plaintiff-Appellant Timothy Sorrow brought negligence, gross negligence, and wrongful deaths claims personally and on behalf of the estate of her deceased son, Mr. Hall, against the people and entities responsible for organizing the race. Plaintiff-Appellant Robert J. Milne brought claims of negligence and gross negligence on his own behalf against the same defendants.

The three Defendants-Appellees were responsible for organizing, promoting, and overseeing the TOC race on April 25, 2005. U.S.A. Cycling Inc., d/b/a the National Off-Road Bicycle Association (“NORBA”), oversaw the race and drafted the rules governing the race, Cycle Cyndicate organized and promoted the race, and Eric Jean–the president and CEO of Cycle Cyndicate–played a large role in administering and supervising the race.

A. Open Course Mountain Bike Racing

Although a portion of this race took place on an open road, the race was governed exclusively by the mountain bike racing [**4] rules developed by NORBA. These rules differ significantly from road racing rules. For example, road racers must obey a “center-line rule,” and may be disqualified if they cross over the line painted in the middle of the road. Mountain bike racers, on the other hand, will not be disqualified for crossing the center-line. This distinction is based at least in part on the fact that, unlike the roads used for road racing, open-course mountain bike races often take place on dirt roads that do not have a clearly marked center line. Thus, a center-line rule would be difficult, if not impossible, to enforce.

Despite the fact that a mountain bike racer may not be disqualified for crossing the center line, there was evidence that the race organizers told the racers to obey a center-line rule. Even where no center-line rule is in effect, however, racers are expected to be aware of their surroundings, and to veer right if they see oncoming traffic.

Open-course bicycle races are apparently not uncommon in the mountain bike racing world and are especially common in Utah. Mr. Milne testified that about 25% of the mountain bike races he participated in were “open course” races. The TOC itself has taken [**5] place in part on an open course since at least 1998.

Automobile-bicycle accidents are very uncommon at TOC. Mr. Jean stated that throughout the more than ten-year history of the race, with races in many of those years having nearly 500 participants, he is aware of only one accident involving a bicyclist and an automobile–the accident that led to this case. Perhaps because of the low frequency of vehicular accidents, NORBA has no rules dictating that race organizers must regulate traffic on open-course trails to avoid automobile-bicycle [*1124] collisions. There was some evidence that, despite the fact that NORBA has no such requirement, Mr. Jean requested permission to close the road to traffic on the day of the race. Whether or not he made those efforts, it is clear that the permit obtained for the race stated that the race could not stop traffic for more than 15 minutes at a time. 2

2 The race organizers obtained a permit from the Bureau of Land Management (“BLM”) for [**6] the race. However, the record indicates that there was a conflict at the time between the BLM and some of the County governments regarding who had control over the roads in the area. This court expresses no opinion on that conflict.

B. The Racers

Both Mr. Hall and Mr. Milne were classified as “expert” racers, and had extensive mountain bike racing experience. They had raced the TOC before, and were familiar with the course. Before each of these races, they knowingly signed liability release forms, which provided that the parties had waived all claims against the race organizers, including claims premised on the organizers’ negligence. The releases also specifically mentioned that racers were assuming the risk of collision with vehicles. Those warnings, in combination with the race organizers’ pre-race announcements that the first six miles would be on an open course shared with other vehicles, make it clear that Mr. Hall and Mr. Milne knew they could encounter vehicles during their race.

C. Safety Precautions Taken by the Race Organizers

The race organizers took a number of safety precautions both before and during the race. For example, the race organizers posted a sign warning people [**7] in the area of the upcoming race, although that sign had been knocked down at least once during the week the leading up to the race.

On the day of the race, the organizers posted, about a mile and half from the starting line, some attendants whose job it was to warn drivers that a race was taking place, that they might encounter some temporary road closures, and that they would be sharing the road with hundreds of cyclists. Some race organizers also testified that they approached people camped in the area to warn them that a race would be taking place that day. Mr. Konitshek, the driver of the SUV involved in the accident, testified that no one ever came to his campground to warn of the race that morning, despite the fact that his campground was clearly visible from the road. However, the other members of his party testified that the race organizers warned them about the race as they drove away from their campground.

The race organizers also arranged for 25 “course marshals” to help supervise the race. Some of those marshals were posted near intersections or sharp turns in order to mitigate some of the risks associated with the automobile traffic the racers might encounter. However, [**8] no one was assigned to the area right near the accident site, which was relatively straight and wide. Further, even though some course marshals had been assigned to areas between the starting line and the place of the accident, some witnesses testified that they did not notice anyone directing traffic in that area. In addition to the course marshals, Mr. Jean had a few people available to administer first aid to injured riders. Mr. Jean himself also carried a backpack with some medical equipment.

Finally, the race organizers made significant efforts to inform the racers that they might encounter vehicles during the race. In order to ride, race participants had to sign a liability release waiver that specifically mentioned the potential for vehicular [*1125] accidents. Further, before the race began, the race organizers announced that the TOC was an open course race, and that racers might encounter automobile traffic.

D. The Accident

Mr. Konitshek was driving a 2001 Ford Excursion with a 30-foot trailer about five miles from the starting line when he noticed that a group of bikers were approaching his car from the opposite direction. The bikers were spread out too wide for their lane of travel. [**9] That portion of the road was relatively wide, open, and fast. The visibility there was also relatively good. Although the view was partially blocked by some rocks, Mr. Konitshek’s SUV and trailer were visible to racers from at least 150 feet away. Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. 3 He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

3 There was conflicting evidence on whether Mr. Konitshek or the racers had crossed the center line of the road. Mr. Konitshek was adamant that he had remained on his side. However, one of the riders witnessing the accident testified that the riders remained on their side of the road, although he then recanted his testimony to some extent, stating that it was hard to tell whether the riders and/or the truck had remained on their respective sides of the road. Another rider testified at his deposition that he was certain that Mr. Konitshek’s SUV extended beyond the center line. Still another testified that the SUV certainly remained [**10] on its side of the road the entire time. For purposes of this appeal, we will assume the facts most favorable to Plaintiffs’ argument.

Casey Byrd, a rider who was just behind Mr. Hall and Mr. Milne when the accident occurred, testified that right before the accident, Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

E. The District Court’s Decision

The district court granted summary judgment for the defendants on all claims. On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, [**11] they were not grossly negligent. The district court also struck plaintiffs’ expert’s second affidavit, finding that plaintiffs’ witness was not qualified to testify as an expert on mountain bike races. This appeal, challenging the district court’s grant of summary judgment on plaintiffs’ gross negligence claims and the court’s decision to strike plaintiffs’ expert, timely followed.

II. Discussion

A. Federal Law Dictates Summary Judgment Standard

Before turning to the facts of this case, this court must address whether Utah’s summary judgment rules preclude this court from upholding the district court’s grant of summary judgment. [HN2] Under federal law, a defendant may be granted summary judgment whenever plaintiffs fail adequately to “support one of the elements of [*1126] their claim upon which they ha[ve] the burden of proof.” Jensen v. Kimble, 1 F.3d 1073, 1079 (10th Cir. 1993).

[HN3] Utah’s approach to summary judgment is generally parallel to the federal courts’ approach. See, e.g., Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418-20 (Utah Ct. App. 1994) (affirming summary judgment for defendants because plaintiff failed to bring evidence supporting one of the elements regarding which it had the burden [**12] of proof). However, Utah has a special rule for summary judgment in negligence cases that differs significantly from federal law. Under Utah law, “[s]ummary judgment in negligence cases, including gross negligence cases, is inappropriate unless the applicable standard of care is fixed by law.” Pearce v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (emphasis added) (internal quotation omitted). In other words, Utah courts would prevent either party to a negligence dispute from obtaining summary judgment where the standard of care applicable to that dispute has not been “fixed by law.” See Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (explaining that Utah courts will not grant summary judgment in a gross negligence case where the applicable standard of care has not been fixed by law because “[i]dentification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care–the core test in any claim of gross negligence”); but see RJW Media, Inc. v. CIT Group/Consumer Finance, Inc., 202 P.3d 291, 296, 2008 UT App 476 (Utah Ct. App. 2008) (affirming grant of summary judgment for defendant in a [**13] negligence case where the standard of care had not been “fixed by law” but the defendant had presented uncontested evidence of the appropriate standard of care).

In Pearce, 2008 UT 13, 179 P.3d 760, the most recent Utah Supreme Court case to consider this issue, the plaintiff brought gross negligence claims arising out of injuries that occurred during a bobsled ride. The Utah court reversed the lower court’s grant of summary judgment for the defendants, concluding that summary judgment was inappropriate because the applicable standard of care had not been “fixed by law.” The court held that the generally applicable “reasonably prudent person” standard was insufficiently specific to constitute a standard of care “fixed by law.” Id. at 768 n.2. Rather, for the standard of care in that case to be “fixed by law,” a statute or judicial precedent must articulate “specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride.” Id.; see also Berry, 171 P.3d at 449 (denying motion for summary judgment in negligence case involving a skiercross course because the applicable standard of care was not “fixed by law”); Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah. Ct. App. 1989) [**14] (stating that “the applicable standard of care in a given case may be established, as a matter of law, by legislative enactment or prior judicial decision”). Since no statute or precedent provided a standard of care for bobsled rides, the Utah court denied the defendants’ motion for summary judgment. Pearce, 179 P.3d at 768.

Applying Utah law to this case would probably require that we reverse the district court’s grant of summary judgment. It is undisputed that no Utah precedent or legislative enactment specifically establishes the standard of care for running mixed-course bicycle races. Thus, under Utah law, the standard of care in this case is not “fixed by law,” and summary judgment would be inappropriate.

[HN4] Under federal law, on the other hand, a defendant need not establish that the standard of care specific to the factual [*1127] context of the case has been “fixed by law” in order to be granted summary judgment. See Gans v. Mundy, 762 F.2d 338, 342 (3rd Cir. 1985) (holding that defendant moving for summary judgment in a legal malpractice claim need not present expert testimony establishing a standard of care even though a plaintiff in that position would need to do so, because the case [**15] law establishing the plaintiff’s duty to provide expert testimony “cannot fairly be characterized as applying to a defendant’s motion under Rule 56″) (emphasis in original); see also id. at 343 (“[T]he party moving for summary judgment has the ultimate burden of showing the absence of a genuine issue as to any material fact. But once the appellees averred facts and alleged that their conduct was not negligent, a burden of production shifted to the appellant to proffer evidence that would create a genuine issue of material fact as to the standard of care.”) (citations omitted); see generally Young v. United Auto. Workers Labor Employment and Training Corp., 95 F.3d 992, 996 (10th Cir. 1996) (“A party who moves for summary judgment under Rule 56 is not required to provide evidence negating an opponent’s claim. Rather, the burden is on the nonmovant, who must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”) (citations and quotations omitted).

On the contrary, [HN5] federal courts will sometimes grant summary judgment to defendants on negligence claims precisely because of the plaintiff’s failure to present evidence establishing a standard of [**16] care as part of its burden of proof on an element of plaintiff’s case. See, e.g., Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 841, 375 U.S. App. D.C. 343 (D.C. Cir. 2007) (affirming grant of summary judgment for defendants on a negligence claim where plaintiff, who under state law had the burden to provide expert testimony on the standard of care, failed to “offer creditable evidence sufficient to establish a controlling standard of care”); Keller v. Albright, 1 F. Supp. 2d 1279, 1281-82 (D. Utah 1997) (granting defendant’s motion for summary judgment on plaintiff’s legal malpractice claim asserted under Utah law because the plaintiff failed to provide expert testimony regarding the standard of care, and the case did not involve circumstances “within the common knowledge and experience of lay jurors”) (citation and quotation omitted), aff’d, No. 97-4205, 1998 U.S. App. LEXIS 7134, 1998 WL 163363 (10th Cir. Apr. 8, 1998) (unpublished) (affirming “for substantially those reasons set out in the district court’s [opinion]”). Thus, even when Utah substantive law was involved, the federal district court of Utah and the Tenth Circuit have held that the federal courts may grant a defendant summary judgment on a negligence [**17] claim even if the parameters of the standard of care in the relevant industry have not been previously established by precedent or statute. 4 See also Noel v. Martin, No. 00-1532, 21 Fed. Appx. 828, 836 *7 (10th Cir. Oct. 19, 2001) (unpublished) (upholding summary judgment for defendants in a legal malpractice case where the district court properly dismissed plaintiff’s only expert on the issue of the standard of care).

4 Admittedly, there is no indication in Keller v. Albright, 1 F. Supp. 2d 1279, that the plaintiff there argued that the Utah standard for granting summary judgment in a negligence claim should apply.

In Foster v. Alliedsignal, Inc., 293 F.3d 1187 (10th Cir. 2002), this court addressed a closely analogous set of facts involving a conflict between federal and state law standards for granting summary judgment. Foster involved a retaliatory discharge case brought pursuant to Kansas law. Id. at 1190-91. Under Kansas law, a plaintiff can prevail at trial if she establishes [*1128] her case with “clear and convincing evidence.” Id. at 1194 (internal quotation omitted). However, Kansas law provides that “a plaintiff in a retaliation case . . . . can successfully oppose a motion for summary [**18] judgment by a preponderance of the evidence.” Id. at 1194 (internal quotation and citation omitted). In Foster, this court rejected the plaintiff’s efforts to have that lower evidentiary standard apply at the summary judgment stage in federal court. Id. at 1194-95. Instead, this court held that the Supreme Court’s opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), [HN6] required that courts “view the evidence through the prism of the substantive evidentiary burden.” Id. at 254; see also Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, 1454-55 (10th Cir. 1985) (stating, in the context of a motion for judgment notwithstanding the verdict, that “the question of the sufficiency of the evidence needed to go to the jury in a diversity case is a matter of federal law”); Bank of Cali., N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981) (“[F]ederal law alone governs whether evidence is sufficient to raise a question for the trier-of-fact.”). Applying that standard to the case before it, this court in Foster held that, at summary judgment, the plaintiff “must set forth evidence of a clear and convincing nature that, if believed by the ultimate factfinder, would establish that plaintiff was [**19] more likely than not the victim of illegal retaliation by her employer.” Foster, 293 F.3d at 1195. See also Conrad v. Bd. of Johnson County Comm’rs, 237 F. Supp. 2d 1204, 1266-67 (D. Kan. 2002) (holding that, for state law retaliatory discharge claims, the “clear and convincing standard is applied at the summary judgment stage–at least when the claim is brought in a federal court sitting in diversity”). Thus, although the state law dictated that a plaintiff alleging retaliatory discharge could avoid summary judgment under a preponderance of the evidence standard, [HN7] federal law required that the substantive standard applied at trial (i.e., clear and convincing evidence) governs summary judgment determinations. See Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990) (“Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.”); 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 2712 (3d ed. 1998) (“[I]n diversity-of-citizenship [**20] actions questions relating to the availability of summary judgment, such as whether there is a disputed issue of fact that is sufficient to defeat the motion, are procedural and therefore governed by Rule 56, rather than by state law.”).

The circumstances of this case are very similar to what we addressed in Foster. Like the evidentiary rule in Foster, [HN8] Utah’s rule foreclosing summary judgment in cases where the standard of care has not been fixed by law applies exclusively at summary judgment. This is clear because Utah law provides that, at trial, the plaintiff has the burden of demonstrating the appropriate standard of care. See Webb v. Univ. of Utah, 2005 UT 80, 125 P.3d 906, 909 (Utah 2005) (“To establish a claim of negligence, the plaintiff must establish . . . that the defendant owed the plaintiff a duty [and] that the defendant breached that duty . . . .”) (citations and quotations omitted); Sohm v. Dixie Eye Ctr., 166 P.3d 614, 619, 2007 UT App 235 (Utah Ct. App. 2007) (“To sustain a medical malpractice action, a plaintiff must demonstrate . . . the standard of care by which the [physician’s] conduct is to be measured . . . .” (quoting Jensen v. IHC Hosps., Inc., [*1129] 2003 UT 51, 82 P.3d 1076, 1095-96 (Utah 2003)) (alteration [**21] in original)); see also Model Utah Jury Instructions, Second Edition, CV301B (2009), http://www.utcourts.gov/resources/muji/ (stating that “to establish medical malpractice” a plaintiff “has the burden of proving,” inter alia, “what the standard of care is”); id. at CV302 (putting the same burden of proof on a plaintiff attempting to prove nursing negligence). By allowing the plaintiff to avoid summary judgment in cases where the standard of care has not been fixed by law, Utah has created a rule very similar to Kansas’s rule allowing plaintiffs to avoid summary judgment under a lesser standard of proof than they would carry at trial. We are, therefore, bound to treat Utah’s unique summary judgment rule in the same way that we treated the rule in Foster, and conclude that, although we will look to Utah law to determine what elements the plaintiffs must prove at trial to prevail on their claims, see Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) (stating that “in a diversity action we examine the evidence in terms of the underlying burden of proof as dictated by state law”), we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence [**22] on each of those elements to withstand summary judgment. 5 As we discuss in the following section, this approach leads us to concur with the district court’s decision granting summary judgment for the defendants.

5 Even if the defendants have some burden to establish that the race was run in accordance with the standard of care in order to be granted summary judgment, they have met that burden controlling. The defendants put on evidence from a number of experienced biking participants that this race was carefully run in accordance with the standard of care they have come to expect in mountain-bike races. Once the testimony of plaintiffs’ expert Sean Collinsworth is excluded, as we hold later was appropriate, plaintiffs put on no conflicting evidence from any witness qualified to articulate a proper standard of care for a mountain bike race. Further, under Utah law, it would probably be unnecessary for defendants to present expert testimony to establish compliance with the standard of care in this case. Compare Collins v. Utah State Dev. Ctr., 992 P.2d 492, 494-95, 1999 UT App 336 (Utah Ct. App. 1999) (holding that expert testimony was not necessary in case involving claim that a center working with the [**23] developmentally disabled was negligent for allowing a resident to ride a swing without any safety devices designed to ensure that she would not fall off), and Schreiter v. Wasatch Manor, Inc., 871 P.2d 570, 574-75 (Utah Ct. App. 1994) (holding that expert testimony was not necessary in a case involving allegations that a senior living center was negligent for failing to install a fire sprinkler system), with Macintosh v. Staker Paving and Const. Co., 2009 UT App 96, 2009 WL 953712, *1 (Utah Ct. App. 2009) (unpublished) (holding that expert testimony was needed to establish the standard of care in a case involving traffic control at a construction site because of the complex rules governing traffic control in that context); see generally Preston & Chambers, P.C. v. Koller, 943 P.2d 260, 263 (Utah Ct. App. 1997) (“Expert testimony is required where the average person has little understanding of the duties owed by particular trades or professions, as in cases involving medical doctors, architects, and engineers.”) (citations and quotations omitted). In any event, plaintiffs have cited no law establishing that Utah would require an expert in this case, and have not addressed this question in their [**24] briefs, so this issue is not before us on appeal. Thus, even if the defendants have the burden at summary judgment to establish that there is no genuine dispute of fact that their conduct satisfied the applicable standard of care, we hold that on this summary judgment record, defendants satisfied that burden.

B. Plaintiffs Failed to Provide Evidence of Gross Negligence

1. Standard of Review

[HN9] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 [*1130] (10th Cir. 2007)) (ellipses in original). “Summary judgment is appropriate if the record evidence shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1255 (10th Cir. 2005) (citing Fed. R. Civ. P. 56(c)). This court will grant summary judgment for a defendant if the plaintiff fails adequately “to support one of the elements of their claim upon which they ha[ve] the burden of proof.” Jensen, 1 F.3d at 1079. [**25] A plaintiff “cannot avoid summary judgment merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that a reasonable jury could find in her favor.” Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (citation omitted).

2. Analysis

The parties agree that, under Utah law, the liability releases signed by Mr. Milne and Mr. Hall preclude the plaintiffs from bringing ordinary negligence claims against the defendants. See Pearce, 179 P.3d at 765 (stating that [HN10] “people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others”); see also id. at 766 (holding that “recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception”). However, the plaintiffs argue–and, on appeal, the defendants do not contest–that, under Utah law, a liability release will not prevent a plaintiff from bringing claims of gross negligence. Cf. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1065 (Utah 2001) (stating in dicta that a liability release “is always invalid if it applies to harm [**26] wilfully inflicted or caused by gross or wanton negligence”) (quoting 6A Arthur L. Corbin, Corbin on Contracts, § 1472, at 596-97 (1962)). Thus, the only merits issue raised on appeal is whether plaintiffs have offered enough evidence in support of their claims of gross negligence to withstand a motion for summary judgment. 6

6 Aside from her negligence and gross negligence claims, Plaintiff Sorrow also brought wrongful death claims relating to Mr. Hall’s death. However, the appellants have not adequately addressed those claims on appeal, so they will be deemed to have been waived. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) ( [HN11] “The failure to raise an issue in an opening brief waives that issue.”).

[HN12] Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Moon Lake Elec. Ass’n, Inc. v. Ultrasystems W. Constructors, Inc., 767 P.2d 125, 129 (Utah Ct. App. 1988) (quoting Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)) (emphasis added); see also Pearce, 179 P.3d at 767 (same). Thus, “the task [**27] confronting a plaintiff who claims injury due to a defendant’s gross negligence is markedly greater than that of a plaintiff who traces his injury to ordinary negligence. Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Berry, 171 P.3d at 449.

[HN13] “Whether an actor’s conduct constitutes negligence is generally a factual question left to a jury. The question should only be answered by the court in rare cases where the evidence is susceptible to only one possible inference.” Roberts v. Printup, 422 F.3d 1211, 1218 (10th Cir. 2005) (citations and quotations omitted). However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants [*1131] took precautionary measures and did not ignore known and obvious risks. Cf. Milligan v. Big Valley Corp., 754 P.2d 1063, 1069 (Wyo. 1988) (affirming summary judgment for defendants on “willful and wanton misconduct” claim, holding that the defendants “did not act in utter disregard of” plaintiffs’ safety in organizing a ski race where the race organizers had taken a number of safety precautions, [**28] plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, 857 N.E.2d 1255, 1262-63 (Ohio Ct. App. 2006) (affirming directed verdict on claim of recklessness arising from an ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards).

Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. In this case, the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they were grossly negligent.

As discussed above, the undisputed evidence [**29] shows that the race organizers took a number of steps to warn of, and protect against, the risk of an automobile accident during the race. The race organizers posted a sign warning people in the area of the upcoming race, posted attendants near the starting line to warn drivers about the race taking place that day, and approached people camped in the area to warn them that the road would be clogged with bikers that morning.

The race organizers also provided 25 course marshals, some of which were assigned to areas like intersections and sharp turns specifically because of the unique risks of automobile traffic in those areas. No one was assigned to the area right near the accident, but that choice was not grossly negligent in light of the fact that the stretch of road where the accident occurred was relatively straight and wide. The race organizers also had some first aid personnel standing by, in addition to Mr. Jean, who carried a backpack with some medical supplies.

Finally, the racers were warned–both in writing and verbally–that they might encounter traffic during the race. The racers’ decision to compete on a course that they knew they would be sharing with automobiles strongly [**30] undercuts their ability to claim after the fact that it was grossly negligent for the race organizers to conduct an open course race. Cf. Walton v. Oz Bicycle Club of Wichita, No. 90-1597-K, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088, *4 (D. Kan. Nov. 22, 1991) (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of [*1132] fact with regard to gross negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed [**31] his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

[HN14] Utah requires a very high level of disregard for safety in order to constitute gross negligence. See Pearce, 179 P.3d at 767; Atkin Wright & Miles, 709 P.2d at 335; Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. The undisputed steps that defendants took to enhance the safety of the TOC would prevent any reasonable juror from finding gross negligence under Utah substantive law. Many of the precautions discussed above were specifically designed to prevent accidents with automobiles. Further, there was no evidence that automobile accidents posed a particularly serious risk in this case. On the contrary, the race had been conducted on an open course for over a decade, and this is the first instance of an accident involving a racer and a vehicle. Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to [**32] gross negligence in light of the other safety steps taken by the organizers of this race. Cf. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 793-94 (S.D. 2000) (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because the allegedly reckless conduct that led to the harm in that case had been present during races for three years prior to this accident, and had never before caused anyone any harm).

An examination of cases in other jurisdictions shows that [HN15] courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hindsight might counsel. See Milligan, 754 P.2d at 1069 (affirming summary judgment for defendants on “willful and wanton misconduct” claim arising out of a ski race where the race organizers had taken a number of safety precautions, plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho, 857 N.E.2d at 1262-63 (affirming directed verdict on claim of recklessness arising from an [**33] ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards); Holzer, 610 N.W.2d at 793-94 (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because plaintiff failed to show that, at the time of the accident, the defendants “knew or had reason to know of an unreasonable risk of harm” to the defendant); Walton, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088 at *4 (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude [*1133] that the race organizers were grossly negligent. 7 See Turner, 563 F.3d at 1142 (stating that, [HN16] to avoid summary judgment, a plaintiff “must proffer facts such that a reasonable jury could [**34] find in her favor”).

7 Because we decide this case on the grounds that plaintiffs have failed to present evidence of gross negligence, we do not reach the defendants’ separate argument that, even if they were grossly negligent, their negligence could not have proximately caused the harms complained of in this case.

C. District Court did not Abuse its Discretion by Excluding Plaintiffs’ Expert

1. Standard of Review

[HN17] “Like other evidentiary rulings, [the court] review[s] a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” Sports Racing Servs. v. Sports Car Club of Am.., 131 F.3d 874, 894 (10th Cir. 1997) (citations omitted). “[A] district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000) (citations and quotations omitted).

[HN18] When testing the admissibility of expert testimony, courts must first determine whether an expert is “qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) [**35] (quoting Fed. R. Evid. 702). Second, if the court determines that a witness is qualified, it must then “determine whether her opinions [a]re ‘reliable.'” Id.

The district court struck the second affidavit of plaintiffs’ expert Sean Collinsworth, concluding that he was “not sufficiently qualified to render expert testimony on the applicable standards of care for mountain bike racing, particularly regarding the TOC[, and] that any such testimony would be speculative and not sufficiently reliable . . . .” (Appx. at 9.)

2. Analysis

Plaintiffs rely heavily on their expert’s testimony to support their claim that the race organizers were grossly negligent. However, plaintiffs’ expert, Sean Collinsworth, admittedly had no experience in organizing, supervising, or studying mountain bike races and, therefore, was not qualified to offer expert testimony on the standard of care for mountain bike races. At his deposition, Mr. Collinsworth was asked, “As a matter of fact–just so we’re clear, you’re not an expert on mountain bike racing . . . Is that a fair statement?” (Appx. at 641.) He answered, “Yes, it is.” (Id.) Nor was he even an experienced mountain bike rider. He had only participated in one [**36] or two mountain bike races, and those were more than 15 years ago. He had never published any articles about bicycle racing of any sort, let alone mountain bike racing. He testified that, as a police officer, he investigated hundreds of vehicle-bicycle collisions, but there was no indication that any of those took place on a dirt road or in the course of a race.

Although Mr. Collinsworth had experience organizing and supervising paved road bike races, the district court reasonably concluded that his experience was insufficient to qualify him to testify about mountain bike races. The facts of this case make it clear that the rules and practices that prevail at mountain bike races–even the on-the-road portion of mountain bike races–are different from the rules and practices that prevail at traditional road races. Most importantly, road racers are always required to obey a center-line [*1134] rule, while mountain bikers racing on dirt roads will generally cross the center-line when there is no oncoming traffic, but are expected to veer right if they see any traffic approaching. Furthermore, the conditions of a road race on paved streets with clearly marked center lines differ significantly from [**37] the conditions of the open-course portion of the TOC, which took place on a dirt road with no clearly marked center line. Given the differences between road races and mountain bike races, we conclude that the district court’s finding that Mr. Collinsworth was unqualified to offer expert testimony on the standard of care for mountain bike races was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” Atlantic Richfield Co., 226 F.3d at 1163; cf. Ralston, 275 F.3d at 970-71 (upholding district court’s determination that a board certified orthopaedic surgeon was not qualified to testify about an orthopaedic device that she had never worked with or studied); Bertotti v. Charlotte Motor Speedway, Inc., 893 F. Supp. 565, 569-70 (W.D.N.C. 1995) (striking expert testimony regarding design of go-kart track where expert had experience in automobile racing, but not go-kart racing).

Even if Mr. Collinsworth was qualified to offer an expert opinion on the standard of care for mountain bike races, the district court correctly determined that his testimony in this case was unreliable. [HN19] “To determine whether an expert opinion is admissible, the district court performs a two-step analysis. [**38] First, the court must determine whether the expert is qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion. See Fed. R. Evid. 702. Second, if the expert is sufficiently qualified, the court must determine whether the expert’s opinion is reliable . . . .” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). “In reviewing whether an expert’s testimony is reliable, the trial court must assess the reasoning and methodology underlying the expert’s opinion.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006) (citations and quotations omitted). Mr. Collinsworth’s opinions in this case were not based on a study of other similar races, an analysis of precautionary measures used in mountain bike races and the risks and benefits of such measures, or any other empirical or quantitative studies. Instead, he relied almost exclusively on his experience in paved road racing–experience that the district court reasonably determined was inapplicable to the context of mountain bike racing–to form his conclusions about the standard of care that should have been used in this case. Mr. Collinsworth’s conclusions about the safety [**39] precautions that should have been taken in this case are, therefore, mere speculation, and [HN20] “[i]t is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.” Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000). Without their expert’s testimony, the plaintiffs’ claims fall apart. See Bertotti, 893 F. Supp. at 570 (granting summary judgment for defendants on plaintiffs’ claim that defendants were grossly negligent in designing and maintaining a go-kart track where the only evidence plaintiffs provided in support of their claims of gross negligence was inadmissible expert testimony). 8

8 The district court’s holding on this matter was limited to Mr. Collinsworth’s second affidavit because the defendants did not also move to strike plaintiffs’ expert’s initial report or his deposition testimony. However, the district court’s ruling clearly indicated that it would not allow this expert to testify as an expert on any of the issues in this case. Therefore, we do not consider either of Mr. Collinsworth’s affidavits or his deposition testimony in deciding the merits of plaintiffs’ claims.

[*1135] III. Conclusion

For the foregoing reasons, [**40] we AFFIRM the district court’s decisions to strike the plaintiff’s expert’s second affidavit and to grant summary judgment for the defendants.

CONCUR BY: GORSUCH (In Part)

CONCUR

GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

I join all but Section II.C of Judge Ebel’s fine opinion. That section concerns the admissibility of testimony by the plaintiffs’ expert, Sean Collinsworth. The majority upholds the district court’s decision to exclude Mr. Collinsworth’s testimony on the ground that he wasn’t an expert in the relevant field. I have my doubts. Mr. Collinsworth may not be a professional mountain bike racer, but he does have substantial experience in organizing and conducting traffic control operations for bicycle racing and similar events — and the adequacy of the defendants’ traffic control operations lie at the heart of this case.

Still, I would affirm the district court’s exclusion of Mr. Collinsworth for a different reason. The only question in this case is gross negligence — namely, whether defendants took any precautions against the accident that took place. See, e.g., Pearce v. Utah Athletic Found., 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (Gross negligence is “the failure to [**41] observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.”) (emphasis added); cf. Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (“Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”). Mr. Collinsworth’s proffered testimony faults the sufficiency of the defendants’ precautions, but doesn’t dispute that the defendants did exercise some degree of care, however slight, in preparing for and managing this race. His testimony, thus, might well have been relevant to a negligence claim, but it doesn’t illuminate the plaintiffs’ gross negligence claim. And a district court is not obliged to entertain evidence, expert or otherwise, irrelevant to the claims before it. See Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). With this minor caveat, I am pleased to join.


Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481

Conning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
Suzanne M. Conning, Plaintiff, against Robert J. Dietrich, BROOKLYN TRIATHLON CLUB and JOHN STEWART, Defendants.
32474/08
SUPREME COURT OF NEW YORK, KINGS COUNTY
2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
July 15, 2011, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: bicycle, training, triathlon, route, summary judgment, shoulder, weekend, roadway, ride, cyclist, riding, participating, cycling, recreational, risk of injuries, issues of fact, participated, cross-claims, bicyclist, verified, hazard, sport, assumption of risk, experienced, recreation, amusement, triable, speed, mile, paceline
HEADNOTES
[**1215A] Negligence–Assumption of Risk–Injury during Cycling Event. Release–Scope of Release.
COUNSEL: [***1] For CONNING, Plaintiff: Alan T. Rothbard, Esq., Harrison & Rothbard, P.C., forest Hills, NY.
For DIETRICH, Defendant: Michael J. Caulfield, Esq., Connors & Connors, PC, Staten Island NY.
For STEWART & BTC, Defendant: French & Casey LLP, NY NY.
JUDGES: HON. ARTHUR M. SCHACK, J. S. C.
OPINION BY: ARTHUR M. SCHACK
OPINION
Arthur M. Schack, J. [*2]
Plaintiff SUZANNE M. CONNING (CONNING), a resident of Brooklyn (Kings County), fell off a bicycle while participating in an August 2, 2008 triathlon training ride on New York State Route 28, a designated state bicycle route, in Ulster County. After her fall she was struck by an automobile owned and operated by defendant ROBERT J. DIETRICH (DIETRICH). Plaintiff had been training intensively for two upcoming triathlons she planned to enter. Defendant BROOKLYN TRIATHLON CLUB (BTC) organized weekend trips to allow triathletes, such as plaintiff CONNING, to train for upcoming events. Defendant BTC designated defendant JOHN STEWART (STEWART) to lead its cycling training the weekend of plaintiff CONNING’s accident.
Defendants BTC and STEWART move for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against them, pursuant to CPLR Rule 3212, alleging, among [***2] other things, that: plaintiff CONNING assumed the risk of injuries she sustained by voluntarily participating in defendant BTC’s triathlon training weekend; and, plaintiff CONNING signed a valid waiver of liability releasing defendants BTC and STEWART from any liability that they may sustain in a BTC event. Defendant DIETRICH moves for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against him, pursuant to CPLR Rule 3212, alleging that: plaintiff CONNING caused her own accident by following the cyclist in front of her too closely; and, there is no evidence that defendant DIETRICH failed to use reasonable care in the operation of his motor vehicle. Plaintiff opposes both motions. For the reasons to follow, the Court grants summary judgment to defendants BTC and STEWART and denies summary judgment to defendant DIETRICH.
Background
Plaintiff CONNING had experience as a “triathalete” before the subject accident, having participated in three prior triathlons and other organized bicycling events, including a thirty-five (35) mile bike tour in September or October 2006. When plaintiff lived in Arizona, from 2001-2005, she participated several times per [***3] month in organized and informal cycling rides and mountain biked several times per year. Subsequently, plaintiff moved to New York and joined BTC in November 2007. In 2008, plaintiff began participating in instructional cycling rides with BTC members. Plaintiff Conning testified in her examination before trial (EBT) that: she gradually increased the frequency of her rides and the distance covered to develop endurance and strength; her training rides included bike paths in Brooklyn with pedestrians and highways with motor vehicles; and, she was aware of the potential hazards a cyclist encounters on roads, including small stones, ruts and cracks.
Defendant BTC organized a triathlon training weekend for the first weekend of August 2008, based in Phoenicia, New York, to train its members in the skills necessary for triathlon events. Plaintiff signed BTC’s waiver of liability, on July 29, 2008, before commencing training with BTC. Then, plaintiff CONNING voluntarily took part in BTC’s three (3) day training camp in preparation for her planned participation in upcoming triathlons. Plaintiff testified, in her [*3] EBT, that on Friday, August 1, 2008, she participated in a twenty (20) mile bicycle [***4] ride and then chose to take a thirty-five (35) mile ride the next day, led by defendant STEWART. In the August 2, 2008-ride, the six riders stayed in a paceline if the road was straight and level. In a paceline, bicycle riders, to reduce wind resistance, ride in a line with each bicycle approximately twelve to eighteen inches behind each other.
After the group traveled about twenty-five (25) miles, while on Route 28, plaintiff CONNING was last in the paceline, to keep weaker cyclists in front of her. The paceline was on the shoulder of Route 28, separated from vehicular traffic by a white line. Plaintiff CONNING testified, in her EBT, that while she was following a fellow cyclist, Cindy Kaplan, she observed the shoulder narrowing and a difference in elevation between the shoulder and the gravel area to the right of the shoulder. When plaintiff observed Ms. Kaplan leave the shoulder and swerve right onto the gravel surface, plaintiff voluntarily followed. Plaintiff testified, in her EBT, that she then attempted to get her bicycle back onto the shoulder, at which point the front wheel of her bicycle caught the slight rise in the shoulder’s elevation. This caused her wheels to stop and [***5] plaintiff CONNING was propelled over her bicycle’s handlebars onto Route 28’s roadway. Then, plaintiff CONNING was struck by defendant DIETRICH’s vehicle, which was traveling on Route 28. Further, plaintiff admitted that prior to the accident she never complained about roadway conditions to STEWART.
Summary Judgment Standard
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652, 857 N.Y.S.2d 234 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969, 352 N.Y.S.2d 494 [2nd Dept 1974]).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant’s papers justify holding as a matter of law [***6] “that there is no defense to the cause of action or that the cause of action or defense has no merit.” The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921, 801 N.Y.S.2d 340 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 N.Y.S.2d 449 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632, 895 N.Y.S.2d 456 [2d Dept 2010]).
Plaintiff’s assumption of risk
Defendants BTC and STEWART make a prima facie entitlement to summary judgment and dismissal of the verified complaint and cross-claims against them because plaintiff CONNING assumed any risks involved with bicycle riding and she executed defendant BTC’s valid waiver of liability. The Court of Appeals, in Turcotte v Fell (68 NY2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]), held, at 437: [*4]
It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant [***7] owed him a duty to use reasonable care, and that it breached that duty . . . The statement that there is or is not a duty, however, begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. Thus, while the determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant’s action or inaction, they also necessitate an examination of plaintiff’s reasonable expectations of the care owed to him by others.
Further, in Turcotte at 438-439, the Court instructed that risks involved with sporting events:
are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
The doctrine of assumption of risk is “intended to facilitate free and vigorous participation [***8] 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 (1989). However, “[a]s a general rule, [sporting event] participants may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation (see Maddox v City of New York, 66 NY2d 270, 277-278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]).” (Turcotte at 439). (See Benitez at 657; Murphy v Steeplechase Amusement Co., 250 NY 479, 482, 166 N.E. 173 [1929]). To establish plaintiff’s assumption of risk, “it is not necessary . . . that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as he or she is aware of the potential for injury from the mechanism from which the injury results.” (Maddox at 278). “If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.” (Turcotte at 437). Further, the Turcotte Court, at 438, in defining the risk assumed, instructed that:
in its most basic sense it “means that the plaintiff, in advance, has given his * * * consent to relieve the defendant of an obligation [***9] of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The situation is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury * * * The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (Prosser and Keeton, Torts § 68, at 480-481 [5th ed]; 4 Harper, James & Gray, [*5] Torts § 21.0 et seq. [2d ed]; Restatement [Second] of Torts § 496A comments b, c; see also, Bohlen, Voluntary Assumption of Risk, 20 Harv. L Rev 14 [assumption of risk is another way of finding no duty of care]; Comment, Assumption of Risk and Vicarious Liability in Personal Injury Actions Brought by Professional Athletes, 1980 Duke LJ 742).
Assumption of risk is frequently invoked in connection with voluntary participation in sports and recreational activities. “By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and [***10] flow from such participation.” (Rivera v Glen Oaks Village Owners, Inc., 41 AD3d 817, 820, 839 N.Y.S.2d 183 [2d Dept 2007]). In Sanchez v City of New York (25 AD3d 776, 808 N.Y.S.2d 422 [2d Dept 2006]), the Court dismissed plaintiff’s complaint because “the injured plaintiff assumed the risks inherent in playing baseball in the gymnasium where she sustained her injuries, including those risks associated with any readily observable defect or obstacle in the place where the sport was played.” In Cuesta v Immaculate Conception Roman Catholic Church (168 AD2d 411, 562 N.Y.S.2d 537 [2d Dept 1990]) the Court granted summary judgment to defendant. Plaintiff, voluntarily acted as an umpire in his son’s Little League game. While standing behind the pitcher, he was struck in the eye by a ball thrown by the catcher. The Court held, at 411, that “[t]he injury is one common to the sport of baseball, and was foreseeable by the plaintiff prior to accepting the job as umpire.” In an assumption of risk case, “[p]laintiff can avoid summary judgment only by demonstrating that the risk of injury was somehow unreasonably increased or concealed in the instant circumstances.” (Mondelice v Valley Stream Cent. High School Dist., 2002 N.Y. Misc. LEXIS 1292, 2002 NY Slip Op 50403 [U], *3 [***11] [Sup Ct, Nassau County 2002, Winslow, J.]).
Plaintiff CONNING, in the instant action, was aware of the inherent risks involved in triathlon participation. She was an experienced cyclist and prior to her accident previously participated in triathlons and cycling events. In addition, she participated in weekly training for triathlon events. At the time of her accident no risks inherent in bicycling were veiled or concealed from her. “[B]y engaging in a sport or recreation activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (Morgan v State, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). (See Marino v Bingler, 60 AD3d 645, 874 N.Y.S.2d 542 [2d Dept 2009]; Lumley v Motts, 1 AD3d 573, 768 N.Y.S.2d 24 [2d Dept 2003]; Cook v Komorowski, 300 AD2d 1040, 752 N.Y.S.2d 475 [4th Dept 2002]). “A reasonable person of participatory age or experience must be expected to know” that there are risks inherent with cycling. (Morgan at 488) A known, apparent or reasonably foreseeable consequence of participating in a sporting activity will be considered an inherent risk. (See Turcotte at 439; Tilson v Russo, 30 AD3d 856, 857, 818 N.Y.S.2d 311 [3d Dept. 2006]; Rubenstein v Woodstock Riding Club, 208 AD2d 1160, 617 N.Y.S.2d 603 [3d Dept. 1994]). [***12] Plaintiff, an experienced bicyclist, was aware of risks, in cycling on Route 28, when she left the shoulder where her training group was riding and went onto adjacent gravel. She should have been aware that road bikes of the type she was riding are designed to be ridden on pavement and their handling is greatly compromised on gravel.
Moreover, whether the risk of injury is open and obvious is a determinative factor in assessing plaintiff’s comparative fault. (See Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 924 N.Y.S.2d 474 [2d Dept 2011]; Krebs v Town of Wallkill, 84 AD3d 742, 922 N.Y.S.2d 516 [2d Dept 2011]; Bendig v [*6] Bethpage Union Free School Dist., 74 AD3d 1263, 1264, 904 N.Y.S.2d 731 [2d Dept 2010]; Mondelli v County of Nassau, 49 A.D.3d 826, 827, 854 N.Y.S.2d 224 [2d Dept 2008]; Mendoza v Village of Greenport, 52 AD3d 788, 861 N.Y.S.2d 738[2d Dept 2008]). Plaintiff CONNING, in the instant matter, alleges that defendants BTC and STEWART were negligent in allowing her to ride on “a decrepit and narrow path.” However, plaintiff rode her bicycle on the shoulder of Route 28 for one-tenth of a mile (about two city blocks) before her accident. She was able to observe the roadway as she was riding on the shoulder. Also, despite observing the narrowing of the [***13] shoulder, she continued to ride. Plaintiff, did not, as she knew she could have, slowed down or stopped.
Moreover, even for experienced cyclists “[t]he risk of striking a hole and falling is an inherent risk of riding a bicycle on most outdoor surfaces.” (Goldberg v Town of Hempstead, 289 AD2d 198, 733 N.Y.S.2d 691 [2d Dept. 2001]). Similarly, “the risk of encountering ruts and bumps while riding a bicycle over a rough roadway . . . is so obvious . . . or should be to an experienced bicyclist . . . that, as a matter of law, plaintiff assumed any risk inherent in the activity.” (Furgang v Club Med, 299 AD2d 162, 753 N.Y.S.2d 359 [1d Dept 2002]). Plaintiff, in the instant action, was participating in a guided bicycle tour conducted by defendants BTC and STEWART when she hit a rut, an inherent risk, and fell off her bicycle. (See Rivera v Glen Oaks Village Owners, Inc. at 820-821; Reistano v Yonkers Bd. of Educ., 13 AD3d 432, 785 N.Y.S.2d 711 [2d Dept 2004]). In Werbelow v State of New York (7 Misc 3d 1011[A], 801 N.Y.S.2d 244, 2005 NY Slip Op 50549[U] [Ct Cl, 2005]), a self-proclaimed “rather competent rollerblader” was injured after she fell over a “crack” on a New York State bicycle path and the Court found that plaintiff assumed the risk of injury. The Werbelow Court held, at *3, [***14] that “there is no indication that there were unreasonably increased risks’ in this case, or that defendant acted recklessly, intentionally, or concealed the risks, such that the doctrine of assumption of risk would not apply.” “Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces and the defective condition in this case was open and obvious, the infant plaintiff assumed the risk of riding her bicycle on the ballfield.” (Goldberg at 692). (See Rivera v Glen Oaks Village Owners, Inc. at 820). In the instant action, a rut in the road surface or a change in elevation between the shoulder and gravel area or a “decrepit and narrow” shoulder were not unique conditions created by either STEWART or BTC.
It is clear that defendants BTC and STEWART did not take plaintiff on an unreasonably dangerous roadway surface. The EBT testimony demonstrates that the cyclists did not anticipate that every patch of the roadway would be smooth. Cindy Kaplan, one of the cyclists in plaintiff’s training group, testified that “[i]n general the entire route was appropriate, the entire weekend was appropriate because that’s how the roads are Upstate . . . [***15] I guess you can’t expect it to be perfectly paved the whole time.” Plaintiff CONNING came into contact with a ledge or lip in the roadway while trying to get back on the path she diverged from. Unable to navigate the ledge or lip, she fell and was then struck by defendant DIETRICH’s passing car. Prior to plaintiff’s accident, defendant STEWART was diligent in pointing any roadway hazards to the bicycle riders in his group. The shoulder narrowing cannot be considered a roadway hazard because it was open, obvious and not something for cyclists to avoid. Thus, it is manifest that CONNING understood and assumed the risks of the activities she partook in based upon her prior participation in triathlons and cycling events before the date of her accident. Plaintiff CONNING assumed the risk in choosing to participate in the August 2, 2008 cycling event on Route 28 conducted by defendant BTC and led by defendant STEWART, with its known and obvious [*7] risks.
Plaintiff’s waiver of liability
Plaintiff CONNING, on July 29, 2008, signed defendant BTC’s waiver of liability making her aware of the risk of injury prior to her participation in BTC’s triathlon training weekend. This waiver states, in pertinent [***16] part:
I ACKNOWLEDGE that there may be traffic or persons ON THE course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING OR PARTICIPATING IN ANY OTHER BTC EVENT. I also ASSUME ANY AND ALL OTHER RISKS associated with participating in BTC events including but not limited to falls, contact and/or effects with other participants, effects of weather including heat and/or humidity, defective equipment, the condition of the roads, water hazards, contact with other swimmers or boats, and any hazard that may be posed by spectators or volunteers. All such risks being known and appreciated by me, I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above . . . or of other persons [or] entities. I AGREE NOT TO SUE any of the person or entities mentioned above . . . for any of the claims, losses or liabilities that I have waived, released or discharged herein. [Emphasis added]
It is undisputed that plaintiff CONNING, prior to and as a condition of participating in BTC’s training weekend, read and executed BTC’s waiver of liability. Therefore, she was aware of the risks explicitly stated in the waiver. Once “risks [***17] of the activity are fully comprehended or perfectly obvious” to plaintiff, plaintiff is deemed to have accepted the risks by taking part in the activity. (Turcotte at 439).
It is firmly established that a valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties.” (Appel v Ford Motor Co., 111 AD2d 731, 732, 490 N.Y.S.2d 228 [2d Dept 1985]). Absent fraud, duress or undue influence, a party who signs a waiver will be bound by its terms. (Skluth v United Merchants & Mfrs., Inc., 163 AD2d 104, 106, 559 N.Y.S.2d 280 [1d Dept. 1990]). Plaintiff CONNING does not claim that she was fraudulently induced or unduly influenced or forced to sign BTC’s waiver of liability. She participated in BTC’s training weekend of her own free will and signed BTC’s waiver of liability as a condition of her participation in BTC’s events. A plain reading of the waiver of liability demonstrates that it relieves BTC and STEWART from liability for any injuries sustained by plaintiff CONNING, whether or not caused by defendants’ negligence.
In Castellanos v Nassau/Suffolk Dek Hockey, Inc. (232 AD2d 354, 648 N.Y.S.2d 143 [2d Dept 1996]), the Court found that the [***18] injury waiver form executed by plaintiff, an experienced deck hockey player, who participated in a deck hockey game at premises owned by one defendant and maintained or controlled by another defendant, was enforceable. The Court held, at 355, that:
The language of the agreement clearly expresses the intention of the parties to relieve the “organizers, sponsors, supervisors, participants, owners of the business and owners of the premises” of liability (see Lago v Krollage, 78 NY2d 95, 99-100, 575 N.E.2d 107, 571 N.Y.S.2d 689 [1991]). Moreover, the [*8] agreement is similarly clear in reciting that the plaintiff was aware of and assumed the risks associated with participating in the game of deck hockey (see Chieco v Paramarketing, Inc., 228 AD2d 462, 643 N.Y.S.2d 668 [2d Dept 1996]).
“In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party’s own negligence, although disfavored by the courts, generally are enforced, subject to various qualifications.” (Lago v Krollage at 99). However, an exculpatory agreement, as a matter of public policy, is void, “where it purports to grant exemption from liability for willful or grossly negligent [***19] acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual.” (Lago v Krollage at 100). Thus, “it is clear . . . that the law looks with disfavor upon agreements intended to absolve an individual from the consequences of his negligence . . . and although they are, with certain exceptions, enforceable like any other contract . . . such agreements are always subjected to the closest of judicial scrutiny and will be strictly construed against their drawer.” (Abramowitz v New York University Dental Center, College of Dentistry, 110 AD2d 343, 345, 494 N.Y.S.2d 721 [2d Dept 1985]). (See Lago v Krollage at 100; Gross v Sweet, 49 NY2d 102, 106-107, 400 N.E.2d 306, 424 N.Y.S.2d 365 [1979]; Sterling Investors Services, Inc. v 1155 Nobo Associates, LLC, 30 AD3d 579, 581, 818 N.Y.S.2d 513 [2d Dept 2006]; Dubovsky & Sons, Inc. v Honeywell, Inc., 89 AD2d 993, 994, 454 N.Y.S.2d 329 [2d Dept 1982]).
In 1996, the New York Legislature, as a matter of public policy, enacted General Obligations Law (GOL) § 5-326, which states:
“[e]very covenant, agreement or understanding in or in connection with . . . any contract . . . entered into between the owner or operator of any . . . place of [***20] amusement or recreation . . . and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
Despite plaintiff CONNING’s contention that GOL § 5-326 applies to the instant action, it does not. Plaintiff CONNING did not sign BTC’s waiver of liability to participate in a “place of amusement or recreation” owned or operated by defendant BTC. Clearly, BTC does not own or operate Route 28 and plaintiff paid a fee to defendant BTC for training weekend expenses, not for her use of Route 28. Moreover, GOL § 5-326 does not apply to participants engaged in training events, because they are not recreational. The primary purpose of plaintiff CONNING’s August 2, 2008-ride was triathlon training.
Plaintiff, in Tedesco v Triborough Bridge & Tunnel Auth. (250 AD2d 758, 673 N.Y.S.2d 181 [2d Dept. 1998]), was injured on the Verrazano Narrows Bridge during [***21] a “five borough bicycle tour.” The Court held, at 758, that the release plaintiff signed was enforceable “since the Verrazano Narrows Bridge, where the plaintiff Tedesco was injured, is not a place of amusement or recreation.'” Similarly, in Brookner v New York Roadrunners Club, Inc. (51 AD3d 841, 858 N.Y.S.2d 348 [2d Dept 2008]), [*9] plaintiff sustained injuries in the 2004 New York Marathon, while running on a Brooklyn street. Plaintiff, prior to the race, signed defendant’s waiver of liability. The Court held GOL § 5-326 inapplicable to plaintiff because he paid an entry fee to participate in the Marathon, not an admission fee for use of a city-owned street. Further, the Court held, at 842, that “the public roadway in Brooklyn where the plaintiff alleges that he was injured is not a place of amusement or recreation.'” Similarly, in Bufano v. National Inline Roller Hockey Ass’n. (272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]), the Court held that a member of an inline roller hockey league assumed the risk of injuries sustained from a fight with another player during a game. The Court held, at 359, that GOL § 5-326 did not “void the release Bufano signed, since the $25 he paid was not paid to the owner or operator of a recreational [***22] facility.” Further, the Court instructed, at 359-360, that “the liability release he signed expressed in clear and unequivocal language the intent to relieve the defendants of all liability for personal injuries to Bufano caused by defendants’ negligence. Thus, the release is enforceable.”
Plaintiff CONNING, in the instant action, paid $40 annual membership dues to BTC and paid BTC a registration fee for the August 2008 triathlon training weekend. She signed BTC’s waiver of liability to train on a “course route,” and did not pay a fee to use a “place of amusement or recreation.” Thus, GOL § 5-326 does not void the BTC waiver of liability signed by CONNING. (See Lago v Krollage at 101; Schwartz v Martin, 82 AD3d 1201, 1203, 919 N.Y.S.2d 217 [2d Dept 2011]; Fazzinga v Westchester Track Club, 48 AD3d 410, 411-412, 851 N.Y.S.2d 278 [2d Dept 2008]; Millan v Brown, 295 AD2d 409, 411, 743 N.Y.S.2d 539 [2d Dept 2002]). Further, the waiver of liability signed by plaintiff CONNING expressly relieves defendant BTC and its “employees, representatives, and any agents,” such as defendant STEWART from liability for injuries she sustained during the triathlon training weekend.
New York State Courts have uniformly found that when a sporting activity is [***23] “instructional” rather than “recreational” a waiver of liability will not be deemed void under GOL § 5-326. The Court in Boateng v Motorcycle Safety School, Inc. (51 AD3d 702, 703, 858 N.Y.S.2d 312 [2d Dept. 2008]), held that the release signed by a student motorcyclist, who fell from a motorcycle during a training session, was enforceable and not voided by GOL § 5-326 because “the defendants submitted evidence that the raceway premises, which the defendant leased to conduct its classes, were used for instructional, not recreational or amusement purposes.” (See Thiele v Oakland Valley, Inc., 72 AD3d 803, 898 N.Y.S.2d 481 [2d Dept 2010]; Baschuk v Diver’s Way Scuba, Inc. 209 AD2d 369, 370, 618 N.Y.S.2d 428 [2d Dept 1994]). Plaintiff CONNING, at the time of her accident was not taking a recreational bicycle ride but engaged in triathlon training supervised by defendant STEWART, an agent of defendant BTC. Plaintiff registered with BTC to participate in a triathlon training weekend to train for upcoming triathlons in which she planned to participate. Defendant BTC advertised the August 2008 training weekend as instructional, for participants to develop triathlon skills. Plaintiff confirmed this in her EBT testimony.
Defendants BTC and STEWART [***24] demonstrated that plaintiff CONNING knowingly and voluntarily executed a valid waiver of liability and assumed the risk of injury by riding her bicycle on a public roadway. Plaintiff CONNING’s arguments, in opposition to the instant motion of defendants BTC and STEWART, that her August 2, 2008-ride was “recreational” are mistaken. Moreover, the risks inherent in plaintiff CONNING’s August 2, 2008-instructional [*10] bicycle ride, that she consented to, were fully comprehended by plaintiff and obvious to her as an experienced cyclist. Therefore, without material issues of fact, the motion of defendants BTC and STEWART for summary judgment and dismissal of the verified complaint against them and all cross-claims against them is granted.
Defendant DIETRICH’s motion for summary judgment
Defendant DIETRICH’S summary judgment motion on liability is denied because of the existence of triable issues of fact. “It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court’s function is to determine whether by no rational process could the trier of facts find for the nonmoving party’ (Jastrzebski v North Shore School Dist., 223 AD2d 677, 637 N.Y.S.2d 439 [2d Dept 1996]).” [***25] (Scott v Long Island Power Authority, 294 AD2d 348, 741 N.Y.S.2d 708 [2d Dept 2002]). Moreover, “[s]ummary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues.” (Stukas v Streiter, 83 AD3d 18, 23, 918 N.Y.S.2d 176 [2d Dept 2011]). As will be explained, there is no doubt that in the instant action, there are triable issues of fact that must be resolved at trial by the finder of fact. (Sillman v Twentieth Century-Fox Film Corp. at 404).
Defendant DIETRICH, the owner and operator of the motor vehicle that collided with plaintiff CONNING, admitted in his deposition that he was aware of the presence of plaintiff CONNING and other bicycle riders about 200 feet before the accident occurred [EBT – p. 19]. He also acknowledged that in the seconds before the accident, his wife, the front seat passenger “said I see a line of bikers up there. Slow down. Be careful.’ Then she said one of them might hit a stone or something in the road and fall into the road. [EBT – p. 17, lines 10-14].'” Further, defendant DIETRICH testified [EBT – p. 18] that he clearly saw the bicycle riders that his wife had spoken about and that the section of Route 28 where the subject accident [***26] occurred was straight [EBT – p. 20]. Moreover, defendant DIETRICH lived near the scene of the accident [EBT – p.10], on many prior occasions had observed bicycle riders on Route 28 [EBT – p. 22] and knew that Route 28 was a designated state bike route [EBT – p. 26]. Defendant DIETRICH stated that the speed limit on Route 28 was 55 miles per hour [EDT – p.23] and prior to the accident he was driving at that rate of speed [EBT – p. 24] until he saw the bikers and reduced his speed [EBT – pp. 39-40].
Defendant DIETRICH’s counsel, in P 22 of his affirmation in support of the motion, offers conjecture, without expert opinion, that “the plaintiff was following the bicyclist in front of her too closely which prevented her from properly using her senses to see what was before her. This caused her to lose control of the bicycle and to fall into the side of the defendant’s vehicle.” Plaintiff CONNING and the other cyclists were traveling in a paceline. If counsel for defendant DIETRICH believes that the paceline or the spacing of the bicycles was improper, counsel for defendant DIETRICH was obligated to present expert opinion in evidentiary form. However, counsel for defendant DIETRICH failed [***27] to do so.
Both plaintiff CONNING and defendant DIETRICH were under the same duty to operate their respective bicycle and motor vehicle in a safe manner, keep a safe lookout and avoid collisions. “A person riding a bicycle on a roadway is subject to all of the duties applicable to the driver of a vehicle (see Vehicle and Traffic Law [VTL] § 1231). (Thoresz v Vallone, 70 AD3d 1031, 894 N.Y.S.2d 769 [2d Dept 2010]). The Court, in Palma v Sherman (55 AD3d 891, 867 N.Y.S.2d 111 [2d Dept 2009], instructed: [*11]
In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle’s horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position (see Vehicle and Traffic Law § 1146; Rosenberg v Kotsek, 41 AD3d 573, 837 N.Y.S.2d 343 [2d Dept 2007]; Trzepacz v Jara, 11 AD3d 531, 782 N.Y.S.2d 852 [2d Dept 2004]; Redcross v State of New York, 241 AD2d 787, 660 N.Y.S.2d 211 [3d Dept 1997]; PJI 2:76A). Each is required to obey the statutes governing [***28] traffic and is entitled to assume that the other also will do so (see Rosenberg v Kotsek, 41 AD3d 573, 837 N.Y.S.2d 343 [2d Dept 2007]; Trzepacz v Jara, 11 AD3d 531, 782 N.Y.S.2d 852 [2d Dept 2004]; Redcross v State of New York, 241 AD2d 787, 660 N.Y.S.2d 211 [3d Dept 1997]; PJI 2:76A).
In the instant action there are material issues of fact whether defendant DIETRICH used that level of ordinary care that a reasonably prudent person would have used under the same circumstances and if not, whether the subject accident was foreseeable. (See PJI 2:10; PJI 2:12). “Whether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendants’ conduct.” (Danielenko v Kinney Rent A Car, Inc., 57 NY2d 198, 204, 441 N.E.2d 1073, 455 N.Y.S.2d 555 [1982]). Defendant DIETRICH had a duty of care to keep his vehicle under control and to reduce his speed to a safe level, which is clear from his acknowledgment that he took his foot off the gas pedal prior to the accident. VTL § 1180 (a) states that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing [Emphasis added].” Thus, there is a triable issue [***29] of fact whether defendant DIETRICH’s rate of speed was “reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” Also, VTL § 1146 requires a driver to “exercise due care to avoid colliding with any bicyclist.” It is a triable issue whether defendant DIETRICH could have avoided his collision with plaintiff CONNING.
The Court, by determining that triable issues of fact exist, denies defendant DIETRICH’s motion for summary judgment and dismissal of plaintiff’s verified complaint and all cross-claims against him.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendants BROOKLYN TRIATHLON CLUB and JOHN STEWART for summary judgment and dismissal of the verified complaint and all cross-claims against them, pursuant to CPLR Rule 3212, is granted; and it is further;
ORDERED, that the motion of defendant ROBERT J. DIETRICH for summary judgment [*12] and dismissal of the verified complaint and all cross-claims against him, pursuant to CPLR Rule 3212, is denied.
This constitutes the Decision and Order of the Court.
ENTER
HON. ARTHUR M. SCHACK
J. S. C.