Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(UPosted: July 15, 2019
Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U
Michael Marino, an infant under the age of 18, by his Mother and Natural Guardian, Elena Marino, and Elena Marino, Individually, Plaintiffs,
Richard Morrison, Jr, Carmela Morrison and Richard Bedrosian, Defendants.
Index No. 10-11831
CAL. No. 15-00738OT
Supreme Court, Suffolk County
September 8, 2016
MOTION DATE 9-15-15
ADJ. DATE 3-1-16
SURIS & ASSOCIATES, P.C. Attorney for Plaintiffs.
JOHN T. McCARRON, PC Attorney for Defendant C. Morrison.
PENINO & MOYNIHAN, LLP Attorney for Defendant Bedrosian.
PRESENT: Hon. PETER H. MAYER, Justice
PETER H. MAYER, J.S.C.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by defendant Carmela Morrison, dated August 19, 2015, and supporting papers; (2) Notice of Cross Motion by defendant Richard Bedrosian, dated August 19, 2015, and supporting papers; (3) Affirmation in Opposition by plaintiffs, dated December 1, 2015, and supporting papers; (4) Reply Affirmations by defendants, dated February 28, 2016 and January 4, 2016, and supporting papers; (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the motion (seq. 001) by defendant Carmela Morrison and the motion (seq, 002) by defendant Richard Bedrosian are consolidated for purposes of this determination; and it is
ORDERED that the motion by defendant Carmela Morrison for summary judgment dismissing the complaint against her is granted; and it is further
ORDERED that the motion by defendant Richard Bedrosian for summary judgment dismissing the complaint against him is granted.
This action was commenced by plaintiff to recover damages for injuries infant plaintiff Michael Marino allegedly sustained as a result of an accident involving an all-terrain vehicle (ATV) on July 28. 2009. The complaint alleges that Mr. Marino was a passenger on the rear seat of the ATV, that he was caused to be ejected from the ATV, and that the accident took place on property located behind the address known as 29 Buckingham Drive, Dix Hills, New York. Elena Marino individually asserts a derivative claim for loss of love, services, companionship, and household support. Defendant Richard Bedrosian asserts cross claims against defendant Richard Morrison, Jr., who has tailed to appear in this action.
Defendant Carmela Morrison now moves for summary judgment in her favor on the grounds that she is exempt from liability pursuant to General Obligations Law §9-103. that Mr. Marino assumed the risk inherent in the activity, and that plaintiffs lack knowledge as to the location of the alleged accident or the manner in which it occurred. In support of her motion, Ms. Morrison submits copies of the pleadings and transcripts of the deposition testimony of Michael Marino, Richard Bedrosian, and herself.
Defendant Richard Bedrosian also moves for summary judgment in his favor on the grounds that he is exempt from liability pursuant to General Obligations Law § 9-103, plaintiffs lack knowledge as to the location of the alleged accident or die maimer in which it occurred, and he had no knowledge that Mr. Marino was present on his property, and Mr. Marino assumed the risk inherent in the activity. In support of his motion, he submits copies of the pleadings and transcripts of the deposition testimony of himself and Michael Marino.
At his deposition, infant plaintiff Michael Marino testified that, on the date in question, he was 15 years old and was spending time at the house of his school friend, Richie Morrison. Mr. Marino indicated that Mr. Morrison’s father purchased an ATV for Mr. Morrison “a few years” prior, which was parked on the premises next to a shed. Mr. Marino explained that he, Mr. Morrison, and Mr. Morrison’s cousin were waiting for a few friends to arrive at Morrison’s house. Mr. Marino testified that at some point, after it had gotten dark outside and when Mr. Morrison’s parents were not home, Mr. Morrison and his cousin began drinking liquor they had stolen from Mr. Morrison’s parents’ liquor cabinet, Mr. Marino explained that the young men had been playing video games in Mr. Morrison’s basement for a number of hours, but eventually went into the backyard, at which time Mr. Morrison and Mr. Morrison’s cousin began driving the ATV in question around the backyard of the premises. Mr. Marino, upon being offered a ride on the ATV, stated that he climbed aboard and sat behind Mr. Morrison and that neither one of them wore a helmet. Mr. Marino testified that after he sat down on the ATV, Mr. Morrison began driving it on the premises and the next thing he remembers is waking up in a basement with people “picking branches out of [his] head.” He stated that although they started out riding the ATV in Mr. Morrison’s backyard, due to his losing consciousness he is unable to identify exactly where the accident took place. Mr. Marino testified that he later came to learn from “mutual friends” that the accident occurred due to the ATV’s brakes failing, the ATV hitting something, and he and Mr. Morrison being thrown off the ATV. Mr. Marino further testified that he was later informed by his friend, Peter Frisina, that he, too, was injured in a similar way on that same ATV.
Regarding his experience with ATVs. Mr. Marino testified that his father owned one and he had both driven it and been a passenger on it “since [he] was young, ” Mr. Marino stated that neither Carmela Morrison nor Richard Bedrosian ever gave him permission to ride on Mr. Morrison’s ATV, and that neither parent was aware of any alcohol consumption by the young men.
At her deposition, Carmela Morrison testified that her partner, Richard Bedrosian, owns the subject premises. She further testified that she was not home at the time of the alleged ATV accident, but was told by various parties that, contrary to plaintiffs’ allegations, Mr. Marino had been the driver of the ATV and that her son was the rear passenger. Ms. Morrison indicated that she had taken her son and Mr. Marino to the beach earlier in the day with Mr. Marino’s mother’s permission. She stated that at approximately 6:00 p.m., after they all had returned to the subject premises, she left the house in order to attend a networking event. She explained that she asked Mr, Marino if his mother was coming to pick him up and he said “yes.” She informed him that he was welcome to stay to eat some pizza that she had recently ordered. She testified that she then left the young men at the premises with Mr. Morrison’s 20-year-old sister, Kristina, who was preparing to go out and was not present at the time of the accident. Carmela Morrison indicated that at approximately 8:00 p.m. she received a call saying that there had been an accident at the premises and she went home immediately. When asked whether her son obtained permission from her to use the ATV on the date in question, she replied “[a]bsolutely not.” Regarding prior accidents involving the ATV, Ms. Morrison testified that a few months prior to the date in question, Mr. Morrison’s friend, Peter, was driving it, fell off of it, and sustained scratch to his face. She further testified that after Peter’s fall, she “took the key and gave it to Bedrosian and said T don’t want this ATV used at alt.'”
At his deposition, Richard Bedrosian testified that he is the owner of the subject premises, but does not know exactly where the accident in question occurred, although he was told by his girlfriend, Carmela Morrison, that it happened “off property, ” on state land behind his backyard. He stated that his property is approximately 1.9 acres in size, completely fenced, with the backyard consuming % of that land. Of that backyard, he explained, Vi of it is ungroomed woods. Regarding the ATV in question, Mr. Bedrosian testified that it was a Christmas gift from Mr. Morrison’s biological father, defendant Richard Morrison, Jr., to Mr. Morrison, which he received approximately seven months before the accident. Mr. Bedrosian testified that he strongly disapproved of the ATV being on his property, but was told by Mr. Morrison’s father that he had no place to store it. Mr. Bedrosian indicated that Mr. Morrison would occasionally drive it around the backyard in circles or into the wooded area, but that Mr. Morrison’s father promised Mr. Bedrosian that he would take Mr. Morrison to off-premises locations to ride it and, based on that proviso, Mr. Bedrosian allowed the ATV to be stored on his property. Mr. Bedrosian testified that Mr. Morrison was forbidden from operating it if he or Carmela Morrison were not home.
Regarding the date in question, Mr. Bedrosian testified that he was told by Carmela Morrison, Mr. Morrison, and Tony Yacende that Mr. Marino was the driver of the ATV at the time and that Mr. Morrison was the passenger. Also, Mr. Bedrosian explained that no one was permitted to operate the ATV on the date in question because he had taken its only key and put it in a desk in his home office- a location that was “off limits to everybody.”
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 19 N.Y.S.3d 488 ; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 ). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra; see also Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 ). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Daliendo v Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept 1989]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 ).
It is axiomatic that for a plaintiff to recover against a defendant in a negligence action, plaintiff must prove defendant owed plaintiff a duty and that the breach of that duty resulted in the injuries sustained by plaintiff (see Lugo v Brentwood Union Free School Dist, 212 A.D.2d 582, 622 N.Y.S.2d 553 [2d Dept 1995]; Kimbar v.Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197 ).
“The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of die sport generally and flow from such participation” (Shivers v Elwood Union Free Sch. Dist, 109 A.D.3d 977, 978 [2d Dept 2013] [internal quotation omitted]; see Trupia v Lake George Cent. School Dist, 14 N.Y.3d 392, 901 N.Y.S.2d 127 ; Morgan v State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421 ). “A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law” (id at 978; see Leslie v. Splish Splash at Adventureland, 1 A.D.3d 320, 766 N.Y.S.2d 599 [2d Dept 2003]; Morgan v State of New York, supra). “It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Cruz v Longwood Cent Sch. Dist., 110 A.D.3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013] [internal quotation omitted]).
“There is … a duty by a parent to protect third parties from harm resulting from [his or her] infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use” (Nolechek vGesuale, 46 N.Y.2d 332, 336, 413 N.Y.S.2d 340 ), “Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments” (id. at 339). “In order for a third-party claim of this kind against a parent or guardian . . . negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities” (LaTorre v Genesee Mgmt, 90 N.Y.2d 576, 584, 665 N.Y.S.2d 1 ).
Defendants Carmela Morrison and Richard Bedrosian, both relying on nearly identical arguments in support of their motions, have established a prima facie case of entitlement to summary judgment by offering sufficient proof that Mr. Marino voluntarily assumed die risks inherent in riding an ATV (see Shivers v Elwood Union Free Sch. Dist., supra; see generally Alvarez v Prospect Hosp., supra). Moving defendants proved that Mr. Marino voluntarily boarded the ATV, either as a driver or a passenger, having possessed significant prior experience with such machines. Further, there is nothing in the record indicating that Mr. Marino did not have full awareness of Mr. Morrison’s consumption of alcohol, if true, the weather and lighting conditions, and the landscaping of the backyard prior to riding on the ATV. Even if the Court were to assume, for the purposes of this decision, that Mr. Morrison’s consumption of alcohol, or some other factor, exceeded the level of risk Mr. Marino can be said to have assumed, plaintiffs have not proven the manner in which Mr. Marino allegedly sustained his injuries or even that Mr. Marino’s injuries were sustained on Mr. Bedrosian’s property. Accordingly, moving defendants, having established their entitlement to summary judgment on the ground of Mr. Marino’s primary assumption of the risk, the Court need not reach defendants’ other arguments.
Defendant having established a prima facie case entitlement to summary judgment, the burden shifted to plaintiff to raise an issue of fact necessitating a trial (see Alvarez v Prospect Hosp., supra). Plaintiffs argue that: (1) General Obligations Law § 9-103 does not apply to the facts of this case; (2) that enhanced risks were present at the time of Mr. Marino’s alleged injury, which he cannot be expected to assume; and (3) defendants owed a duty of care to Mr. Marino and failed to supervise him properly. In opposition, plaintiffs submit a copy of the Bill of Particulars and Michael Marino’s own affidavit.
Generally, “a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing [his or her] right to recover for [his or her] injuries as a plaintiff who can describe the events in question” (Menekou v Crean, 222 A.D.2d 418, 419, 634 N.Y.S.2d 532 [2d Dept 1995]; Sawyer v Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 502 N.Y.S.2d 696 ; Santiago v Quattrociocchi, 91 A.D.3d 747, 937 N.Y.S.2d 119 [2d Dept 2012]). However, in order to invoke that lower burden of proof, plaintiff must not only make a prima facie case, but must also submit an expert’s affidavit demonstrating the amnesia through clear and convincing evidence (Menekou v Crean, supra). Plaintiffs have failed to meet that burden here. Therefore, plaintiffs’ attempts to raise triable issues will be evaluated in the usual manner (see Alvarez v Prospect Hosp., supra).
As Richie Morrison, Tony Yacende, and Peter Frisina have not been deposed, the Court must decide this matter solely on the three deposition transcripts and single affidavit submitted by the parties herein. The undisputed facts can be summarized as follows: (I) Mr. Bedrosian owned the subject premises, but was unaware of Mr. Marino’s presence there at the time of the incident; (2) Mr. Marino, Mr. Morrison, and Mr. Yacende were unsupervised for a period of time on the evening in question; (3) Mr. Marino voluntarily rode on an ATV while not wearing protective equipment; (4) Mr. Marino was knocked unconscious at some point in the evening and awoke in a basement surrounded by friends and his father; (5) Mr. Marino was transported to the hospital via ambulance; (6) Peter Frisina sustained an injury while riding the subject ATV on an occasion prior to plaintiffs alleged injuries; and (7) Ms. Morrison and Mr. Bedrosian took the keys for the ATV away from Mr. Morrison and forbade Mr, Morrison using the ATV after Peter Frisina’s injury.
Here, plaintiffs rely almost entirely on hearsay not subject to any exception, in an attempt to raise triable issues. Any reference by plaintiffs’ counsel to “defective” brakes is unfounded and speculative (see Daliendo v Johnson, supra). Further, plaintiffs have failed to provide any proof as to the mechanism of Mr. Marino’s alleged injury (see Passaro v Bouquio, 79 A.D.3d 1114, 914 N.Y.S.2d 905 [2d Dept 2010]}. Based upon the admissible, non-hearsay evidence submitted, it is just as likely that Mr. Marino jumped from the moving ATV; took an uneventful ride on the ATV, then attempted to climb a tree and fell to the ground; or was hit in the head by some unknown object, causing him to become unconscious, as it is that the ATV crashed and he was thrown from it. Furthermore, the “dangerous instrument” exception is inapplicable here, as plaintiffs have not submitted evidence that movants gave Mr. Morrison permission to use the ATV or supplied him with access to it (see Nolechek v Gesuale, supra). Instead, uncontroverted evidence has been submitted that movants took affirmative steps to deny use of the ATV to Richie Morrison.
Accordingly, the motions by defendants Carmela Morrison and Richard Bedrosian for summary judgment in their favor dismissing the complaint against them is granted.
California decision imposes three specific requirements for a release to be valid. On requirement is a release must be understood by a person untrained in the law.Posted: September 24, 2018
Lawsuit filed by family of deceased runner who died of cardiac arrest after crossing the finish line of a race. Release and assumption of the risk blocked all claims except the claim for gross negligence.
State: California, Court of Appeal of California, First Appellate District, Division Four
Plaintiff: Eden Gonzalez Hass et al
Defendant: Rhodyco Productions
Plaintiff Claims: negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.
Defendant Defenses: Release and Primary Assumption of the Risk
Holding: Split decision, however case to continue on issue of gross negligence
This California Appellate decision added some new requirements for releases to be valid in California. Two of those new requirements stem from the requirements of the California wrongful death statute. The other two are simple.
Under California law, inherent is a limiting word when it is used to describe the risks in a release, and a release must be understandable by a non-lawyer.
The deceased, Peter Hass, crossed the finish line of the 2011 Kaiser Permanente San Francisco Half Marathon, suffered a cardiac arrest, collapsed and died. His wife and his two children, referred to as the Hess Family in the opinion, sued the event organizer for negligence.
Before entering the race, the deceased signed a release online.
Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” based on injuries he might suffer “at or enroute to and from this event
The race organizer had been putting on events for twenty-five year. This even had approval from the city which approval required providing an emergency management plan. The plan stated that a medical team and ambulance would be at the finish line and stationed on the course. The medical team the family argued was inadequate.
Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances.
The Hess family sued. Initially, the trial court granted the defendant RhodyCo’s motion for summary judgment based on the release and assumption of the risk. The family objected and argued in a hearing they should have the right to amend their complaint and bring additional claims. After the hearing, the trial court agreed and granted the Hess family’s motion for a new trial.
Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.
The defendant RhodyCo filed a notice of appeal, and the Hess family filed a notice of cross appeal bringing the matter to the California Court of Appeals, which issued the opinion here.
Analysis: making sense of the law based on these facts.
The appellate court first looked at the wrongful-death claim of the plaintiff Hess family. Under California law, a wrongful-death claim is not a derivative claim. Meaning the claim does not arise from a superior claim of the plaintiff. It is a claim, in and of itself, and not a claim of the deceased by a claim of the deceased’s family.
In other words, although a decedent cannot release or waive a subsequent wrongful-death claim by the decedent’s heirs, that decedents “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful-death action.
Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.
The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'” “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a subsequent wrongful death cause of action
For a release to block a wrongful-death claim, the language in the release, not the law of releases. Looking at the entire document, is it clear the parties expressed the intent to assume the risk, thus blocking the wrongful-death claim.
Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.
…in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.
The plaintiff Hess family argued the assumption of the risk language was insufficient to make that claim because the release used the term “inherent” to describe the risks. As such the risks that killed the deceased were not covered in the release.
The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks.
Again, the release used terms that limited the scope of the risks the deceased was to assume, which limited the breath of the release.
Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.
The court found that the language in other parts of the release were broad enough to cover the risks the deceased undertook and thus assumed.
Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence.
California also has a requirement that the “release should be understood as speaking to an ordinary person untrained in the law.” This requirement was argued stated twice in the decision.
A release under California law must be written so that an ordinary person untrained in the law can understand it.
The Hess family then argued the release was void because it violated public policy. The Hess Family claimed the defendants were negligent in providing the medical care that responded, and medical care is a necessity and as such should not be protected by a release.
The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
California Civil code § 1668 does not allow a release to be sued to stop a claim if the service or the nature of the contract is based on public policy.
All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.
There is a six-part test to determine if the agreement is one affecting the public interest. Not all six of the requirements must be met.
“‘ It concerns a business of a type generally thought suitable for public regulation.  The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.  The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards.  As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.  In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.  Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'”
However, courts in California have declined to find releases used for recreational activities as violating the statute and thus being void because of the public interest argument.
Most recreational activities may require first aid or greater medical services. However, people do not engage in the sport or activity because of the first aid or medical issues. The first aid and medical issues are ancillary to the activity and as such not the main purpose for the activity or the release.
Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way.
The next issue was the issues of pleading the claim for gross negligence. California like most, if not all, other states do not allow a release to stop a gross negligence claim. If the Hess family is able to argue to the trier of fact that the actions of the defendant, RhodyCo rose to the level of gross negligence the release is not a defense.
Under California law, gross negligence is a want of even scant care.
…”‘[g]ross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘[G]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'”
Normally, to appeal an issue or even argue an issue at the trial court level, you must first include the claim in your complaint or amend your complaint to bring a new issue in. The Hass family did not include any claim in their complaint for gross negligence.
However, the court found that there was no need in California to specifically plead gross negligence as it was part of negligence, sort of. The court never specifically stated why it was reviewing the gross negligence claim, only that other courts had found that it was not necessary to specifically plead gross negligence.
The court then found the plaintiff’s complaint, and arguments had raised enough issues that the plaintiffs might have a claim for gross negligence.
In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context.
Primary assumption of the risk was the final issue reviewed by the court. Primary assumption of the risk is a complete bar to negligence claims, including gross negligence claims because it removes any duty on the part of the defendant to the plaintiff. Meaning, the defendant cannot be negligent because they have not duty to the plaintiff.
Specifically, our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.”
When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.”
Primary assumption of risk arose out of sports and recreational activities so that the activities could be played with the intensity and vigor so that the reason, and sport of the game was not lost.
The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”
The issue then becomes what duty is owed by the defendant to the plaintiff that was not assumed by the plaintiff to the extent that it was then breached by the defendant.
Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family.
The court then stated that the organizer of the even does not have a duty to decrease the risk of any activity or event. However, there is a duty to minimize extrinsic risks.
While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.
The court reasoned this was a necessary departure from the encompassing defense provided by assumption of the risk to keep owners and organizers from avoiding “accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it.”
The court did not point out specific facts or risks that created the issue that the defendant RhodyCo had been grossly negligent.
The case was sent back to trial on the sole issue on whether or not the actions of the defendant were grossly negligent.
So Now What?
At the end of the decision, the court awarded costs to the Hess family. Costs on appeal are awarded to the winner of the appeal, in terms of overall and in terms of the number of claims. The defendant won all but one of the issues on appeal in this case. The only claim the defendant did not win was the plaintiffs did not plead gross negligence in their complaint, so they cannot argue it now.
Yet the court still awarded costs to the plaintiffs. It is only a guess, but does this indicate leaning in favor of the plaintiff’s in this case?
There are three specific takeaways from this decision affecting the law of California and releases.
1. Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.
2. Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.
3. Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.
4. A release under California law must be written so that an ordinary person untrained in the law can understand it.
The final issue to come out of this decision a new back door to defeating the primary assumption of the risk claim. Now if the risk is not enumerated in the release, the plaintiff is going to argue it is extrinsic and therefore, not covered by the doctrine of primary assumption of the risk to defeat the defense.
Copyright 2018 Recreation Law (720) 334 8529
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Court of Appeal of California, First Appellate District, Division Four
August 13, 2018, Opinion Filed
2018 Cal. App. LEXIS 710 *; 2018 WL 3830002
EDEN GONZALEZ HASS et al., Plaintiffs and Appellants, v. RHODYCO PRODUCTIONS, Defendant and Appellant.
Law Office of Gerald Clausen, Gerald Clausen, Abramson Smith Waldsmith LLP, Robert J. Waldsmith, Jeffrey R. Smith for Defendant and Respondent.
REARDON, J.—After crossing the finish line at the 2011 Kaiser Permanente San Francisco Half Marathon, Peter Hass (Hass) tragically suffered a cardiac arrest, collapsed, and died. Hass’s wife, Eden Gonzalez Hass, and his two minor children (collectively, the Hass Family) consequently filed this wrongful death action, alleging that numerous race-affiliated individuals and entities—including event organizer David Rhody, individually and doing business as RhodyCo Productions (RhodyCo)—were negligent in the organization and management of the race, particularly with respect to the provision of emergency medical services.1 The trial court initially granted RhodyCo’s summary judgment motion in this matter, concluding that the instant action was barred [*2] under theories of primary assumption of the risk and express waiver. However, after the Hass Family filed a motion for new trial, the trial court reversed itself. Specifically, the court found that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend their complaint to plead gross negligence, conduct falling outside of the scope of the written waiver and release. On appeal, RhodyCo argues that the trial court’s initial grant of summary judgment was correct, even if the issue of gross negligence is considered on its merits. The Hass Family, in contrast, generally champions the court’s new trial order, but argues that the express release in this case was invalid on additional grounds rejected by the trial court and that the court should have concluded on the evidence before it that a triable issue of material fact exists as to RhodyCo’s gross negligence. We agree with the trial court that summary judgment was not warranted in this case based on primary assumption of the risk. However, we believe the trial court erred in requiring amendment of the complaint to plead gross negligence and determine, [*3] based on our independent review of the record before us, that a triable issue of material fact exists on this issue. We therefore affirm in part and reverse in part, with instructions to enter a denial of RhodyCo’s summary judgment motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The annual Kaiser Permanente San Francisco Half Marathon & 5K Run in Golden Gate Park (Half Marathon) consists of two different events—a 13.1-mile half marathon and a five-kilometer run. In 2011, the anticipated attendance for the two races was estimated to include 10,000 participants and 600 volunteers. RhodyCo provided event management and production services for the Half Marathon from 2006 through 2011. In order to obtain the necessary temporary street closure permit for the event, RhodyCo was required to submit an emergency medical services plan (EMS Plan) to the City and County of San Francisco (City) for review and approval by the City’s emergency medical services agency (Agency).
The approved EMS Plan for 2011 stated, as it had in previous years, that the medical personnel at the Half Marathon would be provided by Palmer College of Chiropractic-West (PCCW) and American Medical Response (AMR). More specifically, [*4] it asserted that PCCW would “‘provide event trained Medical Personnel for the event, (students are all CPR certified and have taken emergency response class). Med Teams will be located at key areas (Start Line, Finish Lines, Postrace Medical Tent, and mobile units on the course). The head clinician event day, Dr. Hal Rosenberg [phone number], will be onsite at the Postrace Medical Tent. AMR will provide an [emergency medical technician] who will be posted with PCCW Med Team in the postrace Medical Tent at the Finish of the race—AMR is also providing an ALS ambulance to respond [to] medical emergencies—the standby will be posted on Lincoln at the Great Hwy … . The Standby and Medical Team will be equipped with cellphone active Nextel radios with direct communication to the Event Coordinator and each other.'” Other portions of the approved EMS Plan, however, indicated that one M.D., 6+ EMTs, and one automatic external defibrillator (AED) would be located at the finish line.
Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” [*5] based on injuries he might suffer “at or enroute to and from this event,” Hass participated in the Half Marathon on February 6, 2011. Almost immediately after crossing the finish line at 10:05:34 a.m., Hass suffered a sudden cardiac arrest and collapsed. Another runner, Dr. Charles Whitehill, crossed the finish line 13 seconds after Hass and heard him fall. Dr. Whitehill—who had significant experience in providing and overseeing resuscitation efforts for patients—began to perform cardiopulmonary resuscitation (CPR) on Hass within 30 to 60 seconds of arriving at Hass’s side. Dr. Whitehill was involved in CPR efforts for five to eight minutes, after which CPR was continued by another bystander who identified himself as an off-duty paramedic. Approximately 11 minutes after Hass collapsed a third bystander brought the AED from the postrace tent, which was located somewhere between 100 and 200 yards beyond the finish line. When the AED was applied, it showed that Hass had no shockable heart rhythm. CPR efforts were then continued until paramedics from the City’s fire department arrived at approximately 10:31 a.m. and took over treatment. Unfortunately, Hass was pronounced dead shortly thereafter [*6] at 10:49 a.m. RhodyCo has provided event management and production services for over 25 years, including at least 400 running, walking, and other events involving over 1.5 million participants. Hass’s tragic death was the only fatality ever experienced at a RhodyCo-managed event.
On May 3, 2012, the Hass Family filed this wrongful death action (Complaint), alleging, among other things, that RhodyCo had negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.” In particular, the Hass Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances. RhodyCo answered, generally denying the Complaint allegations and asserting several affirmative defenses, including primary assumption of the risk and express contractual assumption of the risk and release of liability.
RhodyCo then filed a motion for summary judgment, arguing [*7] that the Hass Family’s wrongful death action was completely barred based on the two aforementioned affirmative defenses. Specifically, RhodyCo claimed that Hass had agreed to be bound by the Release when he registered for the Half Marathon, which included a waiver of liability and assumption of the risk agreement that was binding on his heirs. In addition, RhodyCo asserted that sudden cardiac arrest is an inherent risk of long-distance running and that it had done nothing to increase this risk. Under these circumstances, RhodyCo opined, the Hass Family’s action was barred under the primary assumption of the risk doctrine.
In opposition to the summary judgment motion, the Hass Family argued with respect to the Release that it was void to the extent it purported to cover emergency medical services, as such services implicate the public interest; that it was not a clear and unambiguous waiver of future liability for a wrongful death claim; and that it was ineffective to exempt RhodyCo from liability for gross negligence. With respect to the doctrine of primary assumption of the risk, the Hass Family agreed that cardiac arrest is an inherent risk of long-distance running, but argued that [*8] a sponsoring entity is nevertheless obligated to take reasonable steps to minimize inherent risks to the extent it is able to do so without altering the nature of the sport. They further maintained that RhodyCo had increased the risk of death beyond that inherent in the sport by failing to comply with the EMS Plan.
On the issue of negligence, the Hass Family presented evidence indicating that medical emergencies (including cardiac arrests) are more likely to occur near the finish line of a race because runners tend to push themselves to improve their times, causing an adrenaline rush and an arrhythmia. Moreover, as the City, itself, has recognized: “[C]losing off several major streets at the same time to accommodate a race often causes … potential interference with emergency services.” (San Francisco Transportation Code, § 6.11, subd. (a).) The Hass Family argued that, although RhodyCo’s EMS Plan for the Half Marathon properly identified the finish line as a “‘key area'” and indicated numerous resources would be stationed there—including a medical doctor, AED, and “6+” EMTs—the only medical personnel assigned to the finish line were Dr. Rosenberg (a chiropractor) and the event coordinator (a chiropractic [*9] student), neither of whom were actually at the finish line when Hass collapsed. They further claimed that the AED was in the medical tent located approximately 200 yards away, in the postrace expo area; that no event medical personnel arrived at the scene until 10 minutes after Hass collapsed; and that, when a bystander arrived with the AED at the 11-minute mark, it was too late to help Hass. The Hass Family also found fault with the communications equipment provided by RhodyCo for the Half Marathon. Although the EMS Plan represented that “all event safety personnel” would have “cell phone active radios,” the Hass Family averred that only six or seven radios were provided to the medical team; that no radio was provided to the ambulance or to either chiropractic doctor onsite; and that there was no radio in the medical tent. Finally, the Hass Family presented declarations from several experts indicating that the standard of care for an event like the Half Marathon is to have a competent medical director who is a medical doctor and to follow the medical plan. Moreover, according to one of the Hass Family’s experts, because races like the Half Marathon can disrupt the local 911 system, [*10] the standard of care additionally requires enough onsite ambulances (and/or backfilling of ambulances) to provide for rapid medical care for runners who collapse due to sudden cardiac arrest, particularly near the finish line.2
As stated above, the trial court initially granted RhodyCo’s summary judgment motion, concluding that the Hass Family’s wrongful death action was barred under theories of primary assumption of the risk and express waiver. The Hass Family then filed a motion for new trial, arguing that the trial court had erred in its legal analysis of the primary assumption of the risk doctrine. In addition, they asserted that all of the trial court’s conclusions with respect to the Release were erroneous. In particular, they argued that they were not required to plead gross negligence in the Complaint and that, in any event, it was an abuse of discretion to deny their request to amend the Complaint to cure any such perceived defect. The Hass Family also provided new evidence that they alleged supported finding a triable issue with respect to gross negligence—the deposition testimony of Dr. Brown, the head of the Agency, stating that nothing in the EMS Plan indicated [*11] that chiropractic students would be substituted for EMTs at the finish line and that his discussions with RhodyCo regarding the use of chiropractic students was limited to their use on the mobile teams. Dr. Brown also testified that he had never discussed with RhodyCo the propriety of substituting a chiropractic doctor for a medical doctor as race supervisor. RhodyCo opposed the motion for new trial, arguing that the trial court’s initial decision was correct under the law; that Dr. Brown’s deposition testimony should not be considered as the Hass Family had not acted with diligence in producing it; and that, regardless, the statements from the deposition highlighted by the Hass Family were undercut by other deposition testimony.
After hearing, the trial court granted the Hass Family’s new trial motion. Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did [*12] reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.
A. Standard of Review
CA(1) (1) As described above, the procedural posture of this case is somewhat convoluted. Although the trial court initially granted RhodyCo’s summary judgment motion, it subsequently reversed itself on one ground (primary assumption of the risk) and then deferred ruling on another ground it had previously rejected (gross negligence) pending amendment of the Complaint, effectively granting a new trial on both issues. HN1 Such an order is appealable. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar) [noting, in finding appealability under similar circumstances, that it “makes no difference” that an order granting a new trial following an order granting summary judgment “may operate like an order denying summary judgment, which is nonappealable”].) Further, HN2 although orders granting a new trial are generally examined for abuse of discretion, any determination underlying the new trial order is scrutinized using “the test appropriate for that determination.” (Douglas v. Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392, 407 [177 Cal. Rptr. 3d 271]; see also Aguilar, supra, 25 Cal.4th at pp. 859–860.)
Here, then, [*13] the trial court’s conclusions with respect to the appropriateness of summary judgment are subject to our de novo review. (Aguilar, supra, 25 Cal.4th at p. 860; In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150 [204 Cal. Rptr. 3d 330] (Automobile Antitrust Cases).) In this regard, we review the trial court’s ruling; not its rationale. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 150.) “Thus, ‘[t]he sole question properly before us on review of the summary judgment [order] is whether the judge reached the right result … whatever path he [or she] might have taken to get there.'” (Id. at pp. 150–151.)
CA(2) (2) Moreover, HN3 the underlying issues implicated by RhodyCo’s summary judgment motion are also subject to our independent review. For instance, HN4 “‘[c]ontract principles apply when interpreting a release, and “normally the meaning of contract language, including a release, is a legal question.” [Citation.] “Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, ‘construction of the instrument is a question of law, and the appellate court will independently construe the writing.'”‘” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483 [72 Cal. Rptr. 3d 471] (Cohen); see also Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754–755 [29 Cal. Rptr. 2d 177] (Paralift).) CA(3) (3) Similarly, it has long been recognized that HN5 application of the primary assumption of the risk doctrine is a legal question, to be determined by the courts as a matter of law. (See Kahn, supra, 31 Cal.4th at pp. 1003–1004; see also Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 257 [179 Cal. Rptr. 3d 473] [“‘[T]he legal question of duty, [*14] and specifically the question of whether a particular risk is an inherent part of a sport, “is necessarily reached from the common knowledge of judges, and not the opinions of experts”‘”].) In our resolution of this matter, then, we are writing on what is essentially a clean slate, bearing in mind that HN6 we should resolve any evidentiary doubts in the Hass Family’s favor, given that they are the party opposing summary judgment. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 151 [“In undertaking our analysis, we ‘”accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.”‘”].)
B. Express Waiver
During the online registration process for the Half Marathon, Hass was presented with the following warning regarding his need to execute the Release: “Please read any waiver carefully. It includes a release of liability and waiver of legal rights and deprives you of the ability to sue certain parties. Do not agree to this document unless you have read and understood it in its entirety. By agreeing electronically, you acknowledge that you have both read and understood all text presented to you as part of the registration process. You also understand and agree [*15] that events carry certain inherent dangers and risks which may not be readily foreseeable, including without limitation personal injury, property damage, or death. Your ability to participate in the event(s) is/are subject to your agreement to the waiver and by agreeing herein, you accept and agree to the terms of the waiver and release agreement.” (Italics added.) The document referenced in this warning—which could either be printed out or read in its entirety online—is entitled “Waivers” and reads in pertinent part as follows: “I understand that by registering I have accepted and agreed to the waiver and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understand any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event. [¶] In consideration [*16] of your accepting this entry … , I, intending to be legally bound, do hereby for myself, my heirs, executors, and/or administrators, waive and release any and all claims for damages I may accrue against … RhodyCo … any and all contractors, their employees, representatives, agents and heirs from any and all injuries that may be suffered by me at or enroute to or from this event. I attest that I am physically fit and sufficiently trained for this strenuous competition. I will assume my own medical and emergency expenses in the event of an accident or other incapacity or injury resulting from or occurring in my participation. …” (Italics added.)3
As stated above, RhodyCo argued in its summary judgment motion that the Release signed by Hass acted as a complete bar to the instant action. The trial court initially agreed, rejecting the Hass Family’s arguments that the wording of the Release was insufficient to exempt RhodyCo from wrongful death claims and that the Release was void on public policy grounds. In addition, because gross negligence was not specifically alleged in the Complaint, the court refused to consider the Hass Family’s third argument—that RhodyCo [*17] had engaged in gross negligence falling outside of the scope of the Release. However, the trial court later granted a new trial on this issue, stating it would allow the Hass Family to amend its Complaint to cure this defect. The court declined to determine whether a triable issue as to RhodyCo’s alleged gross negligence existed, pending the filing of the amendment. In this appeal and cross-appeal, the parties raise all three of these issues involving the impact of the executed Release as potential grounds either supporting or undermining the trial court’s summary judgment decision. We therefore address each contention in turn.
1. Waiver of Wrongful Death Claim
CA(4) (4) Our high court has explained that HN7 wrongful death claims “are not derivative claims but are independent actions accruing to a decedent’s heirs.” (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841 [114 Cal. Rptr. 3d 263, 237 P.3d 584]; see also Madison v. Superior Court (1988) 203 Cal.App.3d 589, 596 [250 Cal. Rptr. 299] (Madison) [“‘The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'”].) “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a [*18] subsequent wrongful death cause of action … .” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 725 [183 Cal. Rptr. 3d 234].) Rather, a distinction is made in these circumstances “between the legal ineffectiveness of a decedent’s preinjury release of his [or her] heirs' subsequent wrongful death action and the legal effectiveness of an express release of negligence by a decedent which provides a defendant with ‘a complete defense.‘” (Madison, supra, 203 Cal.App.3d at p. 597.) In other words, although a decedent cannot release or waive a subsequent wrongful death claim by the decedent’s heirs, that decedent’s “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful death action. (Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 763–764 [276 Cal. Rptr. 672] (Saenz); see also Ruiz, supra, 50 Cal.4th at pp. 851–852 [“although an individual involved in a dangerous activity cannot by signing a release extinguish his [or her] heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk”].) Under such circumstances, the releasor is essentially agreeing not to expect the other party to act carefully, thus eliminating that person’s duty of care. (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7 [236 Cal. Rptr. 181] (Coates).)
As an example, in Coates, supra, 191 Cal.App.3d 1, the decedent, a dirtbike rider, signed a release before using the defendant’s motorcycle park. (Id. at pp. 3–4.) After [*19] the decedent was fatally injured, his heirs sued, arguing that the defendant had been negligent in the design and maintenance of the trail on which the decedent was hurt. (Ibid.) The appellate court agreed with the trial court that the decedent’s release barred the subsequent wrongful death action. Specifically, the court noted that, in the first half of the release, the decedent “expressly waived liability for injuries or death which might result from respondents’ ordinary negligence in the future. In the second half, he expressly assumed all risk of injury from dangers inherent in dirtbike riding on respondents’ premises.” (Id. at p. 7; see also id. at p. 4 & fn. 2.) The court concluded that this express assumption of the risk also bound the decedent’s heirs. (Id. at p. 8.) The court additionally opined that whether or not the decedent had “sufficient knowledge of the particular risk which resulted in his death” was irrelevant under the circumstances of the case because “knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk.” (Id. at pp. 8–9.)
CA(5) (5) Our own decision in Saenz, supra, 226 Cal.App.3d 758 is in accord. There, the decedent fell out of a raft on a white-water rafting trip hosted by Whitewater, a commercial rafting [*20] company, and drowned. (Id. at pp. 759, 762.) Prior to this fatal incident, the decedent had signed a release, stating: “‘I am aware that certain risks and dangers may occur on any river trip with Whitewater … . These risks include, but are not limited to, hazards of and injury to person and property while traveling in rafts on the river, accident or illness in remote places without medical facilities, the forces of nature … . [¶] … I hereby assume all of the above risks and, except in the case of gross negligence, will hold Whitewater … harmless from any and all liability, actions, causes of action, debts, claims, and demands of every kind and nature whatsoever which I now have or which may arise out of or in connection with my trip or participation in any activities with Whitewater … .’ The agreement further stated it operated as a release and assumption of risk for his heirs.” (Id. at p. 763, fn. 7, italics added.) Noting that “drafting a legally valid release is no easy task,” we opined that HN8 “‘[t]o be effective, a release need not achieve perfection … . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.'” [*21] (Id. at p. 765.) Given that the plain language of the Saenz release indicated that the decedent consented to assume the risks associated with white-water rafting and release Whitewater from any and all liability arising out of the trip, the fact that the exculpatory sentence did not explicitly state that it covered Whitewater’s negligence and did not specifically mention death or drowning was insufficient to invalidate the otherwise clear release. (Id. at pp. 765–766; see also Cohen, supra, 159 Cal.App.4th at p. 1485 [“‘If a release of all liability is given, the release applies to any negligence of the defendant.'” (italics added)].)
Indeed, generally speaking, “‘[w]hether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.”‘” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66–67 [79 Cal. Rptr. 2d 902].) Moreover, in this regard, “‘[o]ur analysis is not based on the mechanical application of some formula. The presence or absence of the words “negligence” or “bodily injury” is not dispositive. We look instead to the intention of the parties as it appears in the release forms before the court.'” (Id. at p. 67; see also Cohen, supra, 159 Cal.App.4th at p. 1488
[noting that release should be understood as speaking to an ordinary person untrained in the law].) By [*22] signing the Release in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.
The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks. They further contend that the release language contained in the next sentence of the Release is similarly ineffectual in the wrongful death context because it is limited to “any and all claims for damages I [i.e., Hass] may accrue,” thus excluding claims accrued by his heirs. We are not persuaded.
HN9 CA(6) (6) “With [*23] respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen, supra, 159 Cal.App.4th at p. 1484.) Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence. In particular, and as we remarked in Saenz (also a wrongful death action), we believe that the juxtaposition of the assumption of risk language and the blanket release language conveys the message that Hass assumed all risks related to participation in the Half Marathon while excusing RhodyCo from any liability arising from the race. (See Paralift, supra, 23 Cal.App.4th at pp. 756–757 [considering broad release language as well as assumption language in upholding release in wrongful death action]; Saenz, supra, 226 Cal.App.3d at p. 765 [same]; Coates, supra, 191 Cal.App.3d at pp. 7, 9 & fn. 2 [release valid where decedent waived all liability for injury or death and assumed risk of injury from dangers inherent in riding dirt bike on premises]; see also National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 937–938, 940 [264 Cal. Rptr. 44] (Street Racers) [in case claiming lack of competent medical [*24] attention/rescue equipment, release is valid even though it included an assumption of “‘all risk inherent in racing'” because it also released “in unqualified terms … all claims arising from plaintiff’s participation in the race”].)4
We similarly reject the Hass Family’s assertion that the assumption of risk language used in the Release—I “accept the inherent dangers and risks … that arise from participation in the event”—is ambiguous as “accept” in this context could reasonably mean “understand” as well as “assume.” (See Cohen, supra, 159 Cal.App.4th at p. 1485 [an ambiguity in a release exists when a party can identify an alternative, semantically reasonable, candidate of meaning; an ambiguity “‘should normally be construed against the drafter'” of the release].) The complete sentence at issue reads: “By agreeing electronically, I have acknowledged that I have both read and understand any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from [*25] participation in the event.” (Italics added.) Since the signator, in the first part of the sentence, has already acknowledged understanding the contents of the waiver—which includes the statement that there are risks inherent in participating—it seems unlikely that he or she would be asked to acknowledge such an understanding a second time in the latter part of the sentence. Rather, the much more reasonable interpretation of this second clause is that the signator is agreeing to shoulder—i.e., take on or otherwise assume—the dangers and risks inherent in the activity.
Finally, in construing the Release, we are cognizant of the fact that “[i]n cases arising from hazardous recreational pursuits, to permit released claims to be brought to trial defeats the purpose for which releases are requested and given, regardless of which party ultimately wins the verdict. Defense costs are devastating. Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” (Street Racers, supra, 215 Cal.App.3d at p. 938.) While certainly imperfect, we believe that the Release was intended to be, and was accepted as, a comprehensive assumption of all risks associated [*26] with race participation. We therefore agree with the trial court that the Release constitutes a complete defense to a wrongful death action based on ordinary negligence.
2. Public Policy
CA(7) (7) The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
HN10 A contractual provision exculpating a party from liability is invalid under this statute if it “affects the public interest.” (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96, 98 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl).)
CA(8) (8) In Tunkl, supra, 60 Cal.2d 92, HN11 our high court identified six characteristics typical of contracts affecting the public interest: “‘ It concerns a business of a type generally thought suitable for public regulation.  The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [*27] a matter of practical necessity for some members of the public.  The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards.  As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.  In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.  Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'” (Id. at pp. 98–101, fns. omitted.) Not all of these factors need to be present for an exculpatory contract to be voided as affecting the public interest. (Id. at p. 98.) However, in Tunkl, the Supreme Court found all six factors were implicated and, on that basis, concluded that a release from liability [*28] for future negligence imposed as a condition for admission to a charitable research hospital affected the public interest and was thus invalid. (Id. at pp. 94, 101–102.) In making this determination, our high court found “hardly open to question” the fact that “the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity.” (Id. at p. 101.)
In contrast, California courts have consistently declined to apply the Tunkl factors to invalidate exculpatory agreements in the recreational sports context. (See Street Racers, supra, 215 Cal.App.3d 934 [upholding release in case claiming lack of competent medical attention/rescue equipment]; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [128 Cal. Rptr. 2d 885] [fall from chairlift during ski lesson]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161–162 [21 Cal. Rptr. 2d 245] [swim class]; Paralift, supra, 23 Cal.App.4th at p. 756 [skydiving]; Saenz, supra, 226 Cal.App.3d at p. 764 [commercial river rafting]; Madison, supra, 203 Cal.App.3d at pp. 593, 597–599 [scuba diving]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1464, 1466–1468 [231 Cal. Rptr. 429] [bicycle race].) Although they acknowledge the current state of California law, the Hass Family invites us to revisit the issue based on an analysis of the Tunkl factors by the Washington Supreme Court in Vodopest v. MacGregor (1996) 128 Wn.2d 840 [913 P.2d 779] (Vodopest). In that case, the plaintiff agreed to join a mountain trek that was designed as a research trip to test the efficacy of a breathing technique used to eliminate high altitude [*29] sickness. (Id. at pp. 843–844.) Portions of the research proposal were submitted to the University of Washington Human Subjects Review Committee (University) for approval. (Id. at p. 845.) Prior to the trek, the plaintiff executed a broad release in researcher MacGregor’s favor. (Ibid.) A similar release which included the University was rejected by the University as invalid because “releases from liability for negligence are not allowed as a part of any approved study, as the federal government does not allow exculpatory language in human subject experimentation.” (Id. at p. 846.) Ultimately, the plaintiff suffered a cerebral edema from altitude sickness on the trek and sued MacGregor for negligence and gross negligence. (Id. at p. 847.)
The sole issue on appeal in Vodopest was whether the release signed by the plaintiff violated public policy and was thus unenforceable. (Vodopest, supra, 128 Wn.2d at p. 848.) The court noted that medical research was a significant component of the trek and that the “critical question” in the case was “whether the alleged conduct giving rise to the cause of action for negligence occurred in the context of the mountain trekking or within the scope of the research project.” (Id. at pp. 850, 852–853.) It concluded—after consideration of the six Tunkl factors—that to [*30] the extent MacGregor attempted to use the release “to release herself as a researcher from negligent acts performed in the furtherance of medical research,” it was unenforceable as violative of public policy. (Id. at p. 853; see id. at pp. 853–862.) In particular, the court opined that “there are critical public policy reasons to maintain the usual standard of care in settings where one person is using another as a medical research subject.” (Id. at p. 856.)
CA(9) (9) Vodopest is obviously distinguishable on its facts and we reject the Hass Family’s invitation to depart from long-existing California precedent based on this Washington decision. HN12 Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way. (Cf. Okura, supra, 186 Cal.App.3d at p. 1468 [bicycle race participant retains complete control and can drop out of the race or [*31] adjust his pace at any time; organizers have no control over how the participant approaches the race].) The Tunkl court, itself, made clear that such private, voluntary exculpatory contracts are permissible: “While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances [admission to research hospital] pose a different situation. In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer.” (Tunkl, supra, 60 Cal.2d at p. 101.) Here, Hass was permitted to make the voluntary decision, in return for being allowed to participate in the race, to shoulder the risk of RhodyCo’s potential negligence. “‘”‘The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and … should be exercised only in cases free from doubt.'”‘” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, fn. 53 [62 Cal. Rptr. 3d 527, 161 P.3d 1095] (Santa Barbara).) We decline to exercise it here.
3. Gross Negligence
CA(10) (10) The final issue with respect to the impact [*32] of the Release in this matter is whether the Hass Family has raised a triable issue of material fact as to whether RhodyCo acted with gross negligence in its management of the Half Marathon. Even if the Release was sufficient to block a claim for ordinary negligence—as we have held—HN13 it is insufficient, as a matter of public policy, to preclude liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 751 [“an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy”].) For purposes of this distinction, ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Id. at pp. 753–754.) “‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,'” amounts to ordinary negligence. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48 [135 Cal.Rptr. 761].) In contrast, “‘[g]ross negligence‘ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘” (Santa Barbara, supra, 41 Cal.4th at p. 754.) “‘“[G]ross negligence” falls short of a reckless disregard of consequences, [*33] and differs from ordinary negligence only in degree, and not in kind.‘” (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197 [167 Cal. Rptr. 881]; see also Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal. Rptr. 3d 792].) In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'” (Gore, supra, 110 Cal.App.3d at p. 198.)
CA(11) (11) In the present case, we agree with both parties that the trial court erred by refusing to consider the Hass Family’s claim of gross negligence because they had not pled gross negligence in their Complaint. Several appellate courts have opined that California does not recognize a separate cause of action for gross negligence. (Saenz, supra, 226 Cal.App.3d at p. 766, fn. 9; Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 108, fn. 5 [243 Cal. Rptr. 536], disapproved on other grounds in Knight v. Jewett (1992) 3 Cal.4th 296, 306–309 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) In Santa Barbara, the Supreme Court did not definitively resolve this issue, commenting only that it did not view its holding invalidating releases for future gross negligence “as recognizing a cause of action for gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779–780.) Instead, as is more relevant here, the high court went on to declare: “Our holding simply imposes a limitation on the defense that is provided by a release. HN14 A plaintiff is not required to anticipate such a defense [citation]; [*34] instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.” (Id. at 780, fn. 58.) Thus, regardless of whether gross negligence can be a separate cause of action, and/or the Hass Family could have alleged gross negligence in the Complaint in anticipation of RhodyCo’s likely defense, they were not required to do so. The consequences of this pleading decision in the context of a summary judgment motion were summarized in Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal.Rptr.2d 781]—which involved alleged negligence by a ski rental company in the adjustment of ski bindings—as follows: “Had plaintiff anticipated the defense of the release agreement in his complaint and alleged facts suggesting [its invalidity], the matter would have been a material issue which defendants would have had to refute in order to obtain summary adjudication.” (Id. at pp. 1723–1724, 1739–1740; see also id. at p. 1740 [“‘If … the plaintiff pleads several theories or anticipates affirmative defenses by a show of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is [*35] to be successful'”].) In contrast, “[s]ince plaintiff’s complaint said nothing about the agreement, the matter of [its validity] was not a material issue for purposes of defendants’ initial showing on its motion for summary adjudication. [The defendant] met its initial burden by adducing evidence of the … agreement and plaintiff’s execution. The burden thereafter shifted to plaintiff to raise a triable issue of material fact.” (Id. at p. 1740.)
Similarly, here, although the Hass Family set forth certain facts in the Complaint which could be viewed as supporting a claim of gross negligence, it cannot be said that the Complaint—which does not even mention the Release—anticipated the Release defense or raised gross negligence as a material issue which RhodyCo was required to refute in order to succeed on summary judgment. Instead, RhodyCo met its initial burden by producing evidence of the existence of the Release and its execution by Hass. The burden then shifted to the Hass Family to raise a triable issue of material fact as to gross negligence.
CA(12) (12) Viewing the evidence in the light most favorable to the Hass Family, we believe they have met their burden in this case, making summary judgment inappropriate. [*36] 5
It is true that HN15 summary judgment on the issue of gross negligence may be warranted where the facts fail to establish an extreme departure from the ordinary standard of care as a matter of law. However, “[g]enerally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence.” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal. Rptr. 356].) In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context. We conclude only that, viewing the evidence in the light most favorable to them, it is possible that the Hass Family could establish that, despite the potential for grave risk of harm in the sport of long-distance running, RhodyCo failed to implement the EMS Plan in several [*37] material ways and that its management of the Half Marathon—in particular with respect to the allocation of medical resources to the finish line and communication among race personnel—constituted an extreme departure from the standard of care for events of its type. This is sufficient to raise a triable issue of fact with respect to gross negligence.6
In sum, we have concluded that the Release is not void on public policy grounds and that it is adequate to bar the Hass Family’s action for ordinary negligence. However, since we have additionally determined that a triable issue of material fact exists as to whether RhodyCo’s provision of emergency medical services was grossly negligent, the trial court’s new trial order reversing its initial grant of summary judgment was appropriate, unless the Hass Family’s negligence action is completely barred by the doctrine of primary assumption of the risk. We therefore turn finally to that question.
C. Primary Assumption of the Risk
CA(13) (13) In Knight, supra, 3 Cal.4th 296, the Supreme Court considered the continued applicability of the assumption of the risk doctrine in light of the court’s prior adoption of comparative fault principles. (Id. at pp. 299–300.) Specifically, [*38] HN16 our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of
risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Id. at p. 308.) When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.” (Id. at p. 315.) In contrast, secondary assumption of the risk “is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Ibid.; id. at p. 314 [“a jury in a ‘secondary assumption of risk’ case would be entitled to take into consideration a plaintiff’s voluntary action in choosing to engage in an unusually risky sport … in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered”]; see also Kahn, supra, 31 Cal.4th at p. 1003 [in a secondary assumption [*39] of the risk case, “the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence“].)
CA(14) (14) The Supreme Court further concluded in Knight that HN17 “the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm … [turns] on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at p. 309.) Although Knight dealt with the duty owed by a coparticipant in recreational activity (an informal touch football game on Super Bowl Sunday), it also discussed the potential liability here at issue, that of operators and organizers of recreational events. (Id. at pp. 300–301, 315–317.) For instance, the Knight court opined: “In the sports setting … conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.] … [¶] Although defendants generally [*40] have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Id. at pp. 315–316, italics added.) The high court also cited with approval a case involving an injury from a thrown baseball bat in which the jury returned a verdict in favor of the baseball player (since throwing bats is inherent in the game), but implicitly recognized “the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat.” (Id. at p. 317.) Finally, Knight acknowledged a line of cases in which the duty of an operator is defined “by reference to the steps the [*41] sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.” (Id. at p. 317.)
CA(15) (15) Twenty years later, in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa), the Supreme Court revisited the scope of the primary assumption of the risk doctrine in the specific context of the duty owed by an operator/organizer. The Nalwa court summarized the doctrine as follows: HN18 “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Id. at p. 1154.) Applying this analytical framework to the case at hand, the high court concluded that the operator of a bumper car ride at an amusement park had [*42] no duty to protect the plaintiff from the collision which fractured her wrist. (Id. at pp. 1152, 1157–1158, 1162–1163.) Rather, “[l]ow-speed collisions between the padded, independently operated cars are inherent in—are the whole point of—a bumper car ride.” (Id. at p. 1157.) Thus, “‘[i]mposing liability would have the likely effect of the amusement park either eliminating the ride altogether or altering its character to such a degree—by, for example, significantly decreasing the speed at which the minicars could operate—that the fun of bumping would be eliminated, thereby discouraging patrons from riding.'” (Id. at pp. 1157–1158.)
Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family. In particular, according to RhodyCo—under the test articulated in Nalwa—it had no duty to minimize Hass’s risk of death from cardiac arrest. Or, put another way, it had no duty to [*43] reduce the natural consequences of Hass’s cardiac arrest or increase his chances of recovery.
In taking this position, RhodyCo acknowledges that the appellate court in Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173 [119 Cal. Rptr. 2d 497] (Saffro) held that a race producer has a duty to conduct a “reasonably safe event,” which “requires it to take reasonable steps to ‘minimize the risks without altering the nature of the sport.'” (Id. at p. 175.) In Saffro, a marathon runner suffered a grand mal seizure after a race and was diagnosed with severe hyponatremia, likely caused by his inability to consume adequate amounts of water and fluids containing electrolytes (such as Gatorade) during the race. (Id. at p. 176.) Although the race organizer sent written materials to participants prior to the event indicating that such liquids would be provided in sufficient quantities, the evidence suggested that they were not. (Id. at pp. 176–177.) The trial court granted summary judgment in favor of the race organizer, concluding that hyponatremia is an inherent risk of running a marathon. (Id. at pp. 177–178.) The appellate court reversed, stating that a race organizer’s duty to conduct a reasonably safe event includes “the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte [*44] fluids,” especially where the race organizer had made representations to the participants that such fluids would be available. (Id. at p. 179.) Since Saffro had presented sufficient evidence to create a triable issue of fact as to whether the race organizer had breached this duty, summary judgment was improper. (Id. at pp. 179–181; see also Rosencrans, supra, 192 Cal.App.4th 1072, 1079, 1082–1083 [although collisions with coparticipants are an inherent risk of motocross, operator of a motocross track has a duty to minimize this risk without altering the nature of the sport by providing a warning system, such as caution flaggers; triable issue of fact existed as to whether failure to provide a caution flagger constituted gross negligence].) RhodyCo claims that Saffro is inapplicable both because it is a secondary assumption of the risk case and because the “duty to minimize risk” language from Knight that Saffro and other cases have “latched onto” is dictum which has been abrogated by the Supreme Court’s subsequent decision in Nalwa.
We disagree with RhodyCo that the Nalwa court’s formulation of the primary assumption of the risk doctrine somehow supplanted the high court’s earlier discussion of the matter in Knight, particularly with respect to the Supreme Court’s statements [*45] regarding an organizer/operator’s duty “to minimize the risks without altering the nature of the sport.” (Knight, supra, 3 Cal.4th at p. 317.) Rather, Nalwa—far from disagreeing with Knight—referenced it as the “seminal decision explicating and applying primary assumption of risk in the recreational context.” (Nalwa, supra, 55 Cal.4th at p. 1155.) Moreover, Nalwa‘s formulation of the limited duty existing in a primary assumption of the risk case—”the duty not to act so as to increase the risk of injury over that inherent in the activity”—comes directly from Knight. (Nalwa, supra, 55 Cal.4th at pp. 1154–1155, 1162–1163.) Finally, and most importantly for our purposes, Nalwa did not reject cases such as Saffro and Rosencrans which concluded, based on language found in Knight, that operators/organizers have a duty to minimize risks without altering the nature of the sport. (Nalwa, supra, 55 Cal.4th at p. 1163 & fn. 7.) Instead, it characterized them as “decisions addressing the duty to reduce extrinsic risks of an activity” and found them distinguishable in that particular case because it concluded that the risk of injury from bumping—at any angle—was not an extrinsic risk, but was instead a risk inherent to riding bumper cars. (Id. at pp. 1157–1158, 1163.)
CA(16) (16) Indeed, Nalwa expressly states that “[t]he operator of a bumper car ride might violate its ‘duty to use due care not to [*46] increase the risks to a participant over and above those inherent’ in the activity (Knight, supra, 3 Cal.4th at p. 316) by failing to provide routine safety measures such as seatbelts, functioning bumpers and appropriate speed control.” (Nalwa, supra, 55 Cal.4th at p. 1163.) Thus, Nalwa actually reaffirms Knight‘s conclusions regarding the duties owed to participants by operators/organizers of recreational activities. In short, HN19 such operators and organizers have two distinct duties: the limited duty not to increase the inherent risks of an activity under the primary assumption of the risk doctrine and the ordinary duty of due care with respect to the extrinsic risks of the activity, which should reasonably be minimized to the extent possible without altering the nature of the activity. Nalwa explains the interplay between these two types of duties by confirming that an operator’s or organizer’s negligence with respect to extrinsic risks “might violate its ‘duty to use due care not to increase the risks to a participant over and above those inherent’ in the activity.” (Nalwa, supra, 55 Cal.4th at p. 1163.)
In the present case, both parties acknowledge that cardiac arrest is an inherent risk of the sport of long-distance running. Further, it is not suggested on these facts that RhodyCo did [*47] anything that increased the risk that Hass would have a heart attack.7 Moreover, requiring runners to slow down or take breaks in order to decrease this inherent risk would alter the character of racing to such a degree that it would likely discourage runners from participating. However, as both Knight and Nalwa teach us, this is not the end of the inquiry. While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm. (Nalwa, supra, 55 Cal.4th at p. 1163 [while risk of injury from bumping bumper cars is generally low, an operator could violate its duty not to increase this inherent risk by failing to provide routine safety measures]; Knight, supra, 3 Cal.4th at pp. 315–316 [negligent maintenance of towropes by ski resort could violate duty not to expose skiers to increased risk of harm]; Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297–1302 [222 Cal. Rptr. 3d 633] [crash landings caused by failure to safely pilot a hot air balloon are an inherent risk of hot air ballooning, but an operator has a duty not to increase that risk by failing to instruct participants on safe landing procedures, a customary practice in the ballooning industry]; Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 610–611 [202 Cal. Rptr. 3d 536] [although [*48] contact with the floor is an inherent risk in dancing, school may have increased student’s risk of harm through failure to properly disseminate its no-flip policy]; Rosencrans, supra, 192 Cal.App.4th at pp. 1083–1086 [negligent failure to provide collision warning system in motocross]; Saffro, supra, 98 Cal.App.4th at pp. 175, 179–181 [duty not to increase risk of dehydration and hyponatremia by unreasonably failing to provide adequate fluids]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 364–367 [114 Cal. Rptr. 2d 265] [although falling is an inherent risk of skiing, failure to mark off race area containing jumps which an ordinary skier would not expect to encounter may breach duty not to increase inherent risk]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] [although being hit by a golf ball is an inherent risk of golfing, golf course owner had a duty to design course to minimize the risk of being hit where possible without altering the nature of golf].) As the Fourth District recently opined in Grotheer, “[w]hat the primary assumption of risk doctrine does not do … is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317–318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so.” (Grotheer, supra, 14 Cal.App.5th at p. 1300.) And, in Solis, the appellate court succinctly [*49] illustrated the issue raised by these cases as follows: “[F]alling off a horse is an inherent risk of horseback riding. But if a person put a barrel in the middle of the Churchill Downs racetrack, causing a collision and fall, we would not say that person owed no duty to the injured riders, because falling is an inherent risk of horseback riding.” (Solis, supra, 94 Cal.App.4th at p. 365.)
When viewed under this analytical framework, Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307 [59 Cal. Rptr. 3d 770], disapproved on another ground as stated in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 327 [173 Cal. Rptr. 3d 662, 327 P.3d 774], and Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]—two cases relied upon by RhodyCo—are not inconsistent. In Rotolo, parents of a teenager who died as a result of sudden cardiac arrest while playing ice hockey sued the ice hockey facility for wrongful death, claiming that the facility had a duty to notify facility users of the existence and location of the facility’s AED. (Rotolo, supra, 151 Cal.App.4th at p. 313.) The appellate court disagreed, noting that sudden cardiac arrest is a risk inherent in playing strenuous sports and that the facility had done nothing to increase this risk. (Id. at p. 334.) During the course of its analysis, the Rotolo court stated: “We have found no authority for the proposition that a sports facility operator has a duty to reduce the effects of an injury that is an inherent risk in the sport, or to increase [*50] the chances of full recovery of a participant who has suffered such a sports-related injury, or to give notice regarding any first aid equipment that may be available for such a purpose.” (Id. at pp. 334–335.) In making this determination, however, the Rotolo court searched exhaustively for a duty that the facility could have breached in this context and could not find one. (Id. at pp. 319–339.) In particular, it noted that the facility had not breached its duties to keep the property in a reasonably safe condition or to summon emergency medical aid.8 (Rotolo, at pp. 316–317, 332–334.) Since the sports facility had not acted negligently with respect to any risks extrinsic to the sport of hockey, thereby increasing its inherent risks, the primary assumption of the risk doctrine barred recovery. (Id. at pp. 334–335.) Similarly, in Connelly, the plaintiff argued that the ski resort had insufficiently padded a ski lift tower, thereby causing him serious injury when he collided with it. (Connelly, supra, 39 Cal.App.4th at pp. 10–11.) The appellate court concluded that colliding with a ski lift tower is an inherent risk of skiing and that the ski resort had done nothing to increase this risk by padding the towers, which the resort had no duty to do in the first place. (Id. at pp. 12–13.) In essence, the court concluded that the ski [*51] resort had not breached its underlying duty to provide a reasonably safe ski resort and thus the primary assumption of the risk doctrine barred the plaintiff’s negligence action. (See id. at pp. 11–14.)
CA(17) (17) It is undisputed in this case that RhodyCo has provided event management and production services for “high profile” running and walking events for over 25 years and that, while these events involved over 1.5 million participants, Hass was the first fatality. Thus, while death from cardiac arrest is undeniably a risk associated with long-distance running, it appears from RhodyCo’s own facts to be a slight one. The question therefore remains whether RhodyCo, as the organizer of the Half Marathon, acted negligently in its provision of emergency medical services—a risk extrinsic to the sport of long-distance running—in such a way that it exposed Hass to an increased risk of harm over and above that generally inherent in the activity itself. Since we have previously concluded that the Hass Family has raised a triable issue of fact as to whether RhodyCo was grossly negligent in this regard, the primary assumption of the risk doctrine does not act as a complete bar to the present negligence action. [*52] 9 The trial court’s decision to reverse itself on this ground and allow the case to continue was therefore not error.
CA(18) (18) As a final matter, we note that HN20 imposing a duty of due care with respect to “extrinsic” risks for operators and organizers of recreational activities makes sense based on the policies underlying the primary assumption of the risk doctrine. As stated above and as articulated in Nalwa, supra, 55 Cal.4th at pages 1156–1157: “The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity. … [¶] … Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature.” (Id. at pp. 1156–1157.) Moreover, “active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects [*53] of potential tort liability for ordinary negligence.” (Id. at p. 1157.) The Nalwa court counseled that the doctrine’s parameters should be drawn according to this underlying policy goal. (Ibid.) Obviously, requiring an operator or organizer of recreational activities to provide a reasonably safe event, reasonably maintained attractions, and/or customary safety warnings—far from chilling vigorous participation in such activities—would almost certainly increase their attractiveness to potential participants. Moreover, an owner or event organizer is still protected from liability with respect to the inherent risks of these activities. And, given that participation in these recreational pursuits is almost always contingent on the signing of a release, such owners and organizers are generally also relieved of the consequences of their ordinary negligence. Allowing owners and organizers to avoid accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it. (Santa Barbara, supra, 41 Cal.4th at pp. 750–751; see also id. at pp. 767–776 [rejecting as unsupported by empirical evidence the assertion that refusing to uphold agreements releasing liability for future gross negligence [*54] will lead to the extinction of many popular and lawful recreational activities].)
The judgment is affirmed in part and reversed in part, and the matter remanded for further proceedings consistent with this opinion. In particular, the trial court is instructed to enter an order denying RhodyCo’s motion for summary judgment. The Hass Family is entitled to its costs on appeal.
Only a New York City bike share case create a 34-page opinion on just motions that are filed. The results are all over the board, both the defendants and the plaintiff winning issues on an electronic releasePosted: March 19, 2018
A Ten-page release was upheld as valid. But the process was full of enough holes the plaintiff is still in the game.
Corwin, et al., v. NYC Bike Share, LLC, et al., 238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
State: New York: United States District Court for the Southern District of New York
Plaintiff: Ronald D. Corwin, et al
Defendant: NYC Bike Share, LLC, et al
Plaintiff Claims: was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice
Defendant Defenses: Release, Assumption of the Risk Immunity
Extremely complicated decision because of the number of claims of the plaintiff and the number of defendants in the case. Each defendant has a different perspective to the defenses.
The decision looks at what happens if you are not wearing a helmet while cycling and you receive a head injury as well as how assumption of the risk and open and obvious defenses are dealt with in a city and against city agencies.
The last issue, is electronic releases in New York City.
The plaintiff had signed up for a year long bike share rental agreement with New York City bike share. He did that online and, in the process, agreed to a release that was ten pages.
He rented a bike one day and was riding on the street. He felt pressure from traffic on his left. A bike share area was coming up on his right and he rode into it. The bike share locations must be on the streets in New York. He continued through the area and at the end hit a concrete wheel stop. He crashed suffering injuries.
Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging that the Citi Bike station in question was improperly designed, in-stalled, and maintained, Corwin brought claims for common-law and gross negligence and professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.
He sued everyone there was in New York. Sixteen different law firms are listed in the case. The plaintiff sued:
City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program
NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system
New York City Department of Transportation
Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company
Alta Planning + Design (“APD”)
Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system
Metro Express Services, Inc. (“Metro Express”) installation
Sealcoat USA, Inc. (“Sealcoat”) installation
The lawsuit was in Federal District Court. This opinion is the magistrate’s opinion on the motions filed by the parties. Judge assign non-trial work, such as deciding motions to magistrates. After the magistrate’s opinion is filed the parties have X days to respond/object. The judge then reviews and either adopts, modifies or writes his own opinion.
When the judge rules on the magistrate’s opinion there is usually a written record of the ruling. There are two additional motions the magistrate writes about that are in the record, but no ruling from the court.
Probably the parties settled based on this ruling.
There are a lot of arguments in this 34-page ruling. I’m only going to write about the ones that are important to the outdoor recreation and cycling community.
Analysis: making sense of the law based on these facts.
The first defense discussed here is the electronic release signed by the plaintiff to become a bike share member and rent bikes.
The first issues were plaintiff did not remember signing the release, but did sign up and admitted that he probably agreed to things.
The Bike Share program could not produce a release “signed” by the plaintiff. The produced a release that was in use at the time the plaintiff signed the release and the produced testimony of a former manager to testified that the only way the plaintiff could have become a member and ride bikes was if he had agreed to the release.
The plaintiff also argued the release was Unconscionable.
A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party
The court first went into the issue of whether the release existed and was signed. The release was determined to be a “clickwrap” agreement.
Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of service. “[U]nder a clickwrap arrangement, potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.”
The court found clickwrap agreements were enforceable.
Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.
However, the presumption of enforceability is based several factors.
The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind them-selves to contract terms
In New York the courts have already set a group of tests to determine if a clickwrap agreement is enforceable.
Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through hyperlink.
Conversely, terms should not be enforced when they are “buried at the bottom of a webpage” or “tucked away in obscure corners.” (collecting cases refusing to enforce such agreements).
Special attention should be paid to whether the site design brought the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable (“When contractual terms as significant as . . . the right to sue in court are accessible only via a small and distant hyperlink . . . with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent.”) (internal quotation marks and citation omitted).
Broad exculpatory clauses waiving liability for negligence would certainly qualify as material terms that alter a contracting party’s commonly-understood default rights.
Using this set of parameters, the magistrate reviewed the bike Share release and found it was not unconscionable.
The plaintiff then argued the release was not clear, coherent or unambiguous.
To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims.
This ambiguity was based on contradictions between two sections in the ten-page release. However, the court found there was no ambiguity.
Then the plaintiff argued the release was void on public policy grounds.
The plaintiff raised three arguments on why the release violated public policy. It violated New York City Administrative Code, it violated New York General Obligations law § 5-326 and it violated the cities common law duty to maintain roads.
The court found New York City administrative code could not serve as a basis for invalidating a release.
New York General Obligations law § 5-326 is the statute that restricts on who can use a release. The language of the statutes says that “operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” can’t use a release. Since the bike share program was not a facility, the release was valid.
Finally, the common law duty the city of New York had to maintain the roads did not violate the release because “…the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads.”
The release was not void based on public policy considerations.
However, the release did not apply to the city of New York because that would be contrary to public policy.
In the end the negligence claims of the plaintiff were denied because of the release. The gross negligence claims were still valid. Under New York Law and the law of most states, claims for gross negligence cannot be stopped by a release.
The next issue was how the fact the plaintiff did not wear a helmet, at the time of his injury, would be used in the case.
The defendants argued that the plaintiff not wearing a helmet should be used by the defendants to show the plaintiff was liable for his injuries, (that the plaintiff was comparative negligence), to prove assumption of the risk and to mitigate the damages he incurred.
The plaintiff argued that since there was no statutory duty to wear a helmet, then the defendants could not make their arguments.
The court applied the same rationale to wearing a bike helmet as the courts had done in New York to wearing a seat belt in a car crash. Not wearing a bike helmet, it could not be used to prove liability on the part of the plaintiff but it could be used to reduce damages.
…the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how dam-ages, if any, should be assessed.
The defendant then argued they should have qualified immunity on the plaintiff’s claims of failing to provide a bike helmet to him while renting a bike.
Immunity is granted by statute to governments and their agencies for the decisions they make. As long as the decisions are not intentional and thought out the immunity applies. The immunity then stops the courts from reviewing those decisions as long as the decisions are made under the guidelines the law has set out.
Although the city may use the fact the plaintiff did not wear a helmet to reduce any damages the city might owe to the plaintiff. The plaintiff cannot use that argument to say the city was liable for not providing helmets. Nor can the plaintiff argue the his not wearing a helmet was unreasonable and did not breach a duty of care.
Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.
Here those guidelines were made by the city in its decision to not include helmets in the rentals of the bikes.
He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.
Assumption of the Risk
The defendants moved for summary judgment because the plaintiff assumed the risk of his injuries while riding a bike. Primary assumption of the risk is defined as:
In voluntarily undertaken recreational activities, the duty of a defendant is “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 risks were also identified in the release the plaintiff signed and which had been accepted by the court.
Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.”
However, the court rejected the defense because the plaintiff at the time of his injury was not engaged in a sporting activity.
Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her con-sent to the dangers inherent in the activity may reasonably be inferred.” Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.
So, assumption of the risk only applies to recreation and sports in New York? If you are walking down a sidewalk and see a hole in the sidewalk, on your way to work you don’t assume the risk if you fall into the hole?
The next argument by the defendants are not liable because the danger the plaintiff encountered was open an obvious.
The Open and Obvious defense seems fairly simple. If the thing or condition that injured the plaintiff was open and obvious then the plaintiff cannot sue for his injuries. It is very similar to an assumption of the risk defense.
A defendant has “no duty to protect or warn against an open and obvious condition which is not inherently dangerous. Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion
The defendants argue the concrete wheel stop was open and obvious.
…because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.
The plaintiff’s argument, based on the testimony of his expert witness was the wheel stop was not open and obvious because it was too big and was located in the travel lane had been camouflaged, in the way it was put in and painted.
The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.”.
How something could be too big and then not be open and obvious is confusing. This was enough for the court to deny motion for summary judgment based on the open and obvious theory.
Gross Negligence of the Bike Share defendant
Gross negligence under New York law is
…conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” “In order to establish a prima facie case in gross negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.
The plaintiff’s expert opined that the defendants ignored sound engineering practices when creating and installing the wheel stop and that it was foreseeable that the injuries would occur when the wheel stop was placed in the cycling path. Based on that language, the court found that the actions of the defendants could be defined as gross negligence.
The defendant won most of the decisions, however the plaintiff won enough and won significant ones that allowed the litigation to continue.
So Now What?
The final paragraph of the decision has a review of all decisions for the plaintiff and the defendants if you would like to keep a tally. However, there are several decisions concerning plaintiffs that were not reviewed here because they had no relationship to outdoor recreation or the legal issues commonly faced in outdoor recreation.
Obviously, the injuries to the plaintiff are significant to bring such forces to this litigation to justify this much work. The amount of effort put into prosecuting a case for a plaintiff can SOMETIMES be an indication of the damages to the plaintiff when those damages are not identified in the decision.
More importantly, the legal issues of suing New York City and its agencies are far more complex then found in most cities.
There are some interesting points worth noting. You could guess that the judge thought a ten-page release was long since she pointed it out. However, you cannot argue that your release is too long. Especially since electronically they do not have a length that is measured so easily.
Not wearing a helmet can be an issue in cycling and possibly skiing, even though the effectiveness of wearing one can be disputed. I suspect the next step would be to find a helmet expert by the plaintiff to argue that a helmet would not have prevented the damages the plaintiff received and the defendants will find an expert to argue the opposite.
The failure to provide proof that the plaintiff signed the release was overcome. However, design your system so you don’t have to jump through these hurdles. Crate a system that matches the signing to the credit card or other way of showing that on this date at this time the person entered his name and address, credit card number and clicked on this button saying he accepted the release. Then you add, his credit card would not have been charged unless he agreed to the release.
If you are designing bike share locations, do so in a way that people on bikes can assume they can ride through them.
Copyright 2018 Recreation Law (720) 334 8529
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Ronald D. Corwin, et al., Plaintiffs, -against- NYC Bike Share, LLC, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
238 F. Supp. 3d 475; 2017 U.S. Dist. LEXIS 29034
March 1, 2017, Decided
March 1, 2017, Filed
SUBSEQUENT HISTORY: Reconsideration denied by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 53812 (S.D.N.Y., Apr. 7, 2017)
Summary judgment granted by Corwin v. NYC Bike Share, LLC, 2017 U.S. Dist. LEXIS 57254 (S.D.N.Y., Apr. 13, 2017)
CORE TERMS: bike, station, wheel, helmet, bicycle, summary judgment, street, cyclist’s, parking, user, roadway, lane, public policy, matter of law, traffic, wear, installation, riding, notice, negligence claims, qualified immunity, affirmative defenses, municipality, contractor, installed, recreational, planning, genuine, rider, safe
COUNSEL: [**1] For Ronald D. Corwin, Beth Blumenthal, Plaintiffs: Martin William Edelman, LEAD ATTORNEY, Edelman & Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT; Neil R. Finkston, Law Office of Neil R. Finkston, Great Neck, NY.
For NYC Bike Share LLC, Alta Bicycle Share, Inc., Defendants, Cross Claimants, Cross Defendants: Peter W. Beadle, Law Offce of Vaccaro & White, LLP, New York, NY; Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.
For City of New York, Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Howard Martin Wagner, Trief and Olk, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.
For Alta Planning + Design, Inc., Alta Planning Design Architecture of New York, PLLC, Defendants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY; Katherine Buchanan, The Law Firm of Hall & Hall, LLP, Staten Island, NY.
For MetroExpress Services, Inc., Defendant: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.
For Sealcoat USA, [**2] Inc., Defendant, Cross Defendant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY; Brian L. Battisti, Morrison Mahoney, LLP(NYC), New York, NY.
For Sealcoat USA Inc., ADR Provider: Mitchell John Baker, LEAD ATTORNEY, Baker, Leshko, Saline & Blosser, LLP, White Plains, NY.
For Metro Express, Inc., Interested Party: Kevin F. Pinter, LEAD ATTORNEY, Nicoletti, Gonson, Spinner & Owen, LLP, New York, NY; Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.
For New York City Department of Transportation, Cross Claimant, Cross Defendant: Kimberly Kristen Brown, Hoey, King,Epstein, Prezioso & Marquez, New York, NY.
For NYC Bike Share LLC, Cross Claimant, Cross Defendant: Steve Vaccaro, Law Offices of Vaccaro and White, New York, NY.
For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY.
For Alta Planning Design, Inc., Alta Planning Design Architecture of New York, PLLC, Cross Claimants, Cross Defendants: Kevin Jude O’Neill, LEAD ATTORNEY, Gogick, Byrne & O’Neil, LLP, New York, NY.
For Beth Blumenthal, Cross Defendant: Martin William Edelman, LEAD ATTORNEY, Edelman & [**3] Edelman, P.C., New York, NY; Michael K. O’Donnell, LEAD ATTORNEY, Law Office of Michael K. O’donnell, Greenwich, CT.
For City of New York, Cross Claimant, Cross Defendant: Eileen Theresa Budd, Lewis Brisbois Bisgaard & Smith LLP, New York, NY; Judith Feinberg Goodman, Goodman & Jacobs LLP, New York, NY.
For MetroExpress Services, Inc., MetroExpress Services, Inc., Cross Defendant, Cross Claimants: Gary Richard Greenman, Nicoletti Gonson Spinner LLP, New York, NY.
For Sealcoat USA, Inc., Cross Claimant: John P. Cookson, LEAD ATTORNEY, McElroy, Deutsch, Mulvaney & Carpenter, LLP (NY), New York, NY.
JUDGES: SARAH NETBURN, United States Magistrate Judge.
OPINION BY: SARAH NETBURN
[*480] OPINION & ORDER
SARAH NETBURN, United States Magistrate Judge:
On October 25, 2013, Ronald D. Corwin, an annual member of the Citi Bike bicycle sharing program, was riding a Citi Bike in Midtown Manhattan. Upon passing through a Citi Bike station located on East 56th Street and Madison Avenue, he collided with a concrete wheel stop and violently hit his head against the cement. Alleging [*481] that the Citi Bike station in question was improperly designed, installed, and maintained, Corwin brought claims for common-law and gross negligence and [**4] professional negligence and malpractice, and Beth Blumenthal, Corwin’s wife, brought derivative claims for loss of her husband’s services, society, companionship, and consortium.1
1 As Blumenthal’s claims depend entirely on the viability of Corwin’s causes of actions, the two claims are referred to in shorthand as “Corwin’s” throughout the text of the opinion. Where the Court grants summary judgment or partial summary judgment to defendants on certain of Corwin’s claims, Blumenthal’s claims are dismissed as well. Vega-Santana v. Nat’l R.R. Passenger Corp., 956 F. Supp. 2d 556, 562 (S.D.N.Y. 2013) (“Where the primary cause of action is dismissed on summary judgment, the loss of consortium claim must be dismissed as well.”).
On February 27, 2014, Corwin brought claims against three defendants: the City of New York (“City”), who planned, oversaw, and collaborated with the other defendants in implementing the Citi Bike program; NYC Bike Share, LLC (“NYCBS”), the company operating the Citi Bike system, and the New York City Department of Transportation (“DOT”). ECF No. 1, Compl. On December 31, 2014, Corwin amended his complaint to remove the DOT and add three additional defendants: Alta Bicycle Share, Inc. (now named “Motivate, Inc.”), which is NYCBS’s parent company; and Alta Planning + Design (“APD”) and Alta Planning + Design + Architecture of New York (“APDNY”), a design company and its wholly-owned subsidiary who drafted site plans for the Citi Bike system. ECF No. 27, First Am. Compl. After conducting significant discovery, Corwin moved for and was granted leave to amend his complaint to join two additional defendants, Metro Express Services, Inc. (“Metro Express”) and Sealcoat USA, Inc. (“Sealcoat”), both contractors who are [**5] alleged to have participated, in violation of the station’s design plan, in the installation of the wheel stop struck by Corwin. ECF No. 192, Second Am. Compl.
All of the defendants move separately for summary judgment on a variety of grounds.2 All defendants argue that the condition was open and obvious and that Corwin’s negligence claims generally fail as a matter of law. The City, NYCBS, and APD argue that Corwin’s common-law negligence claims were released by the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”) that he had to sign as a condition of Citi Bike membership, and that they are barred by the doctrine of primary assumption of the risk. APD, Metro Express and Sealcoat argue that, as third-party entities in a contractual relationship with Corwin, they owed him no duty of care. APD additionally argues that the Citi Bike station’s deviation from the design is an absolute bar to liability, and that there was no causation between its design and Corwin’s injury. The City also contends that Corwin’s claims are barred due to the doctrine of qualified immunity and its lack of written notice of the condition pursuant to a municipal notice statute.
2 As their liability is exclusively a product of being a parent company of a wholly owned subsidiary, Alta Bicycle Share, Inc./Motivate, Inc. moves for summary judgment together with NYCBS, and APD moves together with APDNY. For the sake of brevity, these motions are referred to as the “NYCBS” and “APD” motions, respectively.
For his [**6] part, Corwin moves for partial summary judgment on two issues. First, he argues that the Release Agreement is unenforceable on numerous statutory, public policy, and contract formation grounds, and that defendants’ affirmative defenses [*482] relying on the Agreement should be dismissed as a matter of law. Second, he contends that the fact that he was not wearing a helmet at the time of the accident is irrelevant as a matter of law to issues of assumption of the risk, comparative fault, or failure to mitigate damages, and therefore defendants’ affirmative defenses relying on this argument should be dismissed.
For the following reasons, the cross-motions for summary judgment are GRANTED in part and DENIED in part. Corwin’s motion to dismiss defendants’ affirmative defenses relying on the Release Agreement is DENIED as to NYCBS; the Agreement is enforceable as a matter of law as to NYCBS. Corwin’s motion to dismiss the affirmative defenses relating to the Release Agreement is GRANTED as to the City because a contractual waiver of the City’s non-delegable duty to maintain public thoroughfares would be contrary to public policy. Corwin’s motion to dismiss defendants’ affirmative defenses relating [**7] to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED; as stated above, the Release Agreement is ineffective to waive Corwin’s claims at to the City, and the City has not demonstrated its entitlement to judgment as a matter of law on qualified immunity, notice, or other grounds. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable as to NYCBS, Corwin’s common-law negligence claims are barred, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED because APD and APDNY did not owe any duty to Corwin. Accordingly, APD and APDNY are dismissed from this case. Metro Express and Sealcoat’s motions for summary judgment are DENIED because a genuine dispute of material fact exists as to whether they owed Corwin a duty of care under applicable New York law.
I. History of the Citi Bike Program
Beginning in 2009, the City of New [**8] York began to study the feasibility of installing a bike share system in and around City streets, located in curbside parking lanes, on sidewalks, and near public spaces and parks. ECF No. 293, City’s Rule 56.1 Statement (“City St.”) ¶ 2. On April 10, 2012, the City and NYCBS entered into an agreement for the design, construction, operation, maintenance, and publicizing of “Citi Bike,” a network of self-service bike share stations with publicly available bicycles. ECF No. 310, Corwin’s Rule 56.1 Statement (“Corwin St.”) ¶ 2. The system became operational in May 2013. City St. ¶ 5; ECF No. 317, NYCBS’s Rule 56.1 Statement (“NYCBS St.”) ¶ 1.
The City-NYCBS contract required NYCBS to design and install on-street bike parking stations “with appropriate protections and markings from adjacent parking and moving traffic. . . . [including] non-permanent bollards and paint markings.” City St. ¶ 31. The contract also noted that all protections and markings were to be preapproved by the DOT’s Division of Traffic. Id.
The design for the Citi Bike stations was modeled in part on the City’s previous experience with “bike corrals,” which were also placed in parking lanes and were designed by the DOT’s Highway Design Unit and [**9] Pedestrian and Bicycle Group. City St. ¶¶ 41-42. These corrals had many elements that would ultimately be integrated [*483] into the Citi Bike stations, such as wheel stops, paint marking and bollards. Id. ¶ 42.
At the time that the NYCBS contract was signed with the City, APD and APDNY were subsidiaries of Alta Bicycle Share, Inc., NYCBS’s parent company. Id. ¶ 48. APD assembled a team of architects, engineers, and designers to collaborate with the City on station design. Id. ¶¶ 49-50. Using a bike corral on Smith and Sackett Street as an exemplar, the APD and the City developed “Station Siting Guidelines” that included the use of unpainted, concrete wheel stops. Id. ¶¶ 51-57. Though the City originally approved the use of rubber wheel stops, it instructed NYCBS to replace them with concrete wheel stops because the rubber stops were not sufficiently durable. Id. ¶ 96. The wheel stops were considered by APD to be necessary to prevent damage to the station equipment by encroaching vehicles. Id. ¶ 58.
The final design for Citi Bike stations situated in parking lanes included white thermoplastic markings and three-foot tall, reflective, flexible delineators on or near the markings. Wheel stops [**10] were to be used in the stations to protect the station equipment. Id. ¶¶ 64-66. These elements were collectively referred to as “street treatment.” Id. ¶ 81. While NYCBS installed the station equipment directly, it contracted the installation of street treatment to Metro Express, allegedly without the City’s awareness. Id. ¶ 83. MetroExpress, in turn, subcontracted this work to another entity, Sealcoat, allegedly without the awareness of either the City or NYCBS. Id. ¶¶ 85-86.
The City considered, but chose not to mandate that Citi Bike riders wear helmets. It also did not provide helmets for Citi Bike riders on demand. Id. ¶ 8. The City came to this conclusion because (a) New York law did not mandate that adult cyclists wear helmets and it did not want to promote different standards for Citi Bike riders and other cyclists as a matter of public policy; (b) it believed, based on studies conducted in other cities, that mandatory helmet laws decreased bicycle ridership in general and bike share system use in particular; (c) certain statistics indicated that mandatory helmet laws actually decreased cyclist safety by reducing the number of cyclists on the road; and (d) research suggested [**11] that helmeted cyclists tended to ride more recklessly than those without helmets. Id. ¶¶ 9-16; Corwin St. ¶ 10. The City also specifically evaluated the feasibility and wisdom of instituting a public helmet distribution system, but ultimately concluded that there were numerous logistical barriers to such a system, such as hygiene, the fact that the structural integrity of helmets would be compromised if they were involved in an accident, and lack of proper fitting and sizing capabilities. City St. ¶¶ 18-22. The City further considered what it viewed as unfavorable experiences with such systems in Seattle, Boston, and Melbourne, Australia. Id. ¶ 25. The City did, however, provide annual Citi Bike members with discounted vouchers for helmets and expanded its helmet giveaway and fitting programs. Id. ¶¶ 27-28.
II. Design and Installation of Citi Bike Station on East 56th Street and Madison Avenue
The station where Ronald Corwin’s accident occurred was located at the intersection of East 56th Street and Madison Avenue. Id. ¶ 98. The City issued a permit to NYCBS for the installation of the station on July 22, 2013, and the station equipment was installed on July 30, 2013. Id. ¶¶ 103-04. [**12] The City approved APD’s design drawing of the station on August 6, 2013, including all street treatment. Id. ¶ 100. The approved design had only one wheel stop at the west end of the station, [*484] no thermoplastic striping within the boxes at the ends of the station, a station width of eight feet, and a total of six delineators. ECF No. 301, Alta Planning and Design Rule 56.1 Statement (“APD St.”) ¶ 30. None of the site plan drawings, including the approved drawing, contained a wheel stop at the east end of the station closest to Madison Avenue.
The street treatment at the East 56th Street and Madison Avenue station was installed on or about October 22, 2013. APD St. ¶ 31. Notwithstanding its absence on the approved plan, a wheel stop was installed at the east end of the station as well, and the station did not conform to the approved plan in several other respects: the station footprint was made wider by the installation of thermoplastic striping more than eight feet in width, additional delineators were added, and cross-hatched striping was installed on either end of the station underneath the wheel stops. Id. ¶ 34. Though this is disputed by the defendants, Corwin argues that the wider footprint [**13] is relevant because, as it provided less clearance between the edge of the station and moving traffic, it would have encouraged a cyclist to use the station itself as a temporary riding lane. ECF No. 335, Decl. of Pl.’s Exp. James E. Green, ¶¶ 56-58. The City denies approving the installation of a second wheel stop at this site, and claims that its records do not show that it had written notice regarding the additional wheel stop. City St. ¶¶ 102, 106, 108.
The entity responsible for installing the wheel stop is contested; Metro Express and Sealcoat contend that an October 18, 2013 email from NYCBS informed them only of the need for repairs to the station, and that after Sealcoat representative Ryan Landeck visited the station on October 22, 2013, he reported that there was nothing to be done at the station in a October 24, 2013 email to Metro Express. ECF No. 368-3, Landeck Depo. at 41, 51; ECF No. 368-4, Landeck Oct. 24, 2013 E-mail. Metro Express further contends that the City had often instructed NYCBS, who in turn had instructed Metro Express to install “Supplemental Street Treatments” not depicted on station plans, and that such supplemental installations included second wheel [**14] stops. ECF No. 368-8, May 17, 2013 Email; ECF No. 335-20, Strasser 06/28/16 Depo. at 48-51. Metro Express alleges that on July 17, 2013, and October 9, 2013, it was specifically ordered by NYCBS to install a second wheel stop not depicted on station plans at three stations around the network. ECF 368-10; 368-11; 368-12; 368-13; 368-14. There is no direct evidence in the record, however, that such a request was ever issued for the East 56th Street and Madison Avenue station.
III. Ronald Corwin’s Citi Bike Membership and Release Agreement
Ronald Corwin signed up online for an annual Citi Bike membership on June 25, 2013. Corwin St. ¶ 15. Corwin does not remember the details of the process, and did not recall clicking on or reading the Bicycle Rental, Liability Waiver, and Release Agreement as a condition of membership. Id. ¶ 18. Nevertheless, he did admit in deposition testimony that “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike Pass.” NYCBS St. ¶ 21. NYCBS has not, however, produced a version of the Agreement dated contemporaneously to Corwin’s registration, or Corwin’s actual electronic signature. Corwin St. ¶ 22.
While the applicability and enforceability [**15] of the Release Agreement is disputed by the parties, there is no serious dispute as to its content. NYCBS has produced an agreement dated July 25, 2014, and Justin Ginsburgh, former General Manager of [*485] NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, testified that this agreement was active on the date that Corwin became a member. ECF No. 316, Ginsburgh Decl. ¶¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl. ¶¶ 2-3; ECF 316-1, Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). Ginsburgh attested that it would be impossible to become a Citi Bike member without first being shown the Release Agreement in a scrollable text box and then clicking a box stating “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in (sic) User Agreement.” NYCBS St. ¶¶ 17-18; City St. ¶¶ 118-20.
The Release Agreement contains several provisions, which are reproduced below in relevant part:
Section 6. Releases:
In exchange for You being allowed to use any of the Services, Citi Bike bicycles, Stations, Bike Docks, or related information, You . . . do hereby fully and forever release [**16] and discharge all Released Persons for all Claims that You have or may have against any Released Person, except for Claims caused by the Released Person’s gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended 3rd beneficiaries of such releases.
“Claims” is defined in the Release Agreement as “any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings [or] damages that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information . . . .” “Released Persons” is defined in the Agreement, as relevant, as including: “(i) NYCBS and all of its owners, managers, affiliates, employees, agents, representatives, successors, and assigns [and] (ii) the City of New York.”
Section 7. Disclaimers:
You do hereby acknowledge and agree that your use of any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, is at your sole risk. . . . [**17] All of the services, Citi Bike bicycles, stations, bike docks, or related information are provided “as is” and “as available” (and you rely on them solely at your own risk). . . . You assume full responsibility and risk of loss for using any of the services, Citi Bike bicycles, stations, bike docks, or releated [sic] information, and NYCBS and all other released persons are not liable for any claim attributable to any of the foregoing.
Section 8. Limited Liability:
You do hereby acknowledge and agree that, except as may otherwise be limited by New York General Obligation Law Section 5-326, NYCBS and all other released persons are not responsible or liable for any claim, including those that arise out of or relate to (A) any risk, danger or hazard described in the Agreement, (B) Your use of or inability to use, any of the services, Citi Bike bicycles, stations, bike docks, or releated (sic) information, (C) your breach of this agreement or your violation of any law, (D) any negligence, misconduct, or other action or inaction by you, (E) your failure to wear a bicycles helmet while using Citi Bike bicycle, or (F) any negligence, misconduct, or other action or inaction of any third party. You do hereby waive all claims with respect to any [**18] [*486] of the foregoing, including those based in contract, tort (including negligence), statutory, or other grounds, even if NYCBS or any of the other released persons has been advised of the possibility of such claims. The total liability of NYCBS and all other released persons for all claims, including those based in contract, tort (including negligence), statutory, or other grounds, is limited to the sum of $100.
Section 9. Assumption of Risk by Member:
Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death to Member or others, as well as damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Member agrees that such risks, dangers, and hazards are Member’s sole responsibility.
IV. Ronald Corwin’s Ride and Accident
At 10:57 a.m. on October 25, 2013, Ronald Corwin picked up a Citi Bike at a station located on the southeastern corner of 6th Avenue and East 56th Street. From there, he travelled in the direction of Grand Central Station. Corwin St. ¶ 25; NYCBS St. ¶ 32. He was not wearing a helmet. Corwin St. ¶ 26; City St. ¶ 137. Corwin proceeded eastbound in the [**19] traffic lane on East 56th Street, with vehicular traffic proceeding to his left. NYCBS St. ¶ 34. Because Corwin claimed to have been “under pressure” from the vehicular traffic, he turned into the Citi Bike station on East 56th Street and Madison Avenue. Id. ¶ 35. The station area was indicated by a perimeter of 4 inch white thermoplastic stripes on the asphalt roadway, and three foot tall white flexible delineators with gray reflective tape spaced approximately every 10 feet along the thermoplastic striping. Id. ¶ 36. At either end of the station, unpainted concrete wheel stops measuring 5 feet, 10.5 inches long by five inches high, were installed on the roadway. Id. ¶ 40. These wheel stops were framed by a box of white thermoplastic striping with diagonal cross-hatching, staked out by three-foot tall flexible delineators. Id. ¶ 41. While he was travelling within the station “envelope,” the front wheel of Corwin’s Citi Bike hit the concrete wheel stop installed near the crosswalk at the Madison Avenue end of the station, causing him to crash onto the pavement and sustain serious injury. Corwin St. ¶ 26.
I. Standard of Review
Under Federal Rule of Civil Procedure 56(a), the court “shall grant summary judgment if [**20] the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of establishing that there are no material facts in dispute and must provide “affirmative evidence” from which a factfinder could return a verdict in its favor. Id. at 257. Then “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to [*487] deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1224 (2d Cir. 1994).
In determining whether summary judgment is appropriate, the court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference [**21] could be drawn in favor of the nonmoving party. . . .” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). To create a disputed fact sufficient to deny summary judgment, the non-moving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. . . .” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Instead, the response “must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation and internal quotation marks omitted).
II. Waiver and Release
It is undisputed that in order to become a member of Citi Bike, Corwin would have been required to assent to a release of claims as set forth in the Bicycle Rental, Liability Waiver, and Release Agreement (“Release Agreement”). This Agreement covered “any and all claims, injuries, demands, liabilities, causes of action (including statutory, contract, negligence, or other tort theories) . . . that arise from or relate to (a) any of the Services, including any of the Citi Bike bicycles, Stations, Bike Docks, or related information or (b) Your use of any of the foregoing.” It required Corwin to “discharge all Released Persons for all Claims that You have or may have against any Released Person, except [**22] for Claims caused by the Released Person’s gross negligence or willful misconduct.” ECF 316-1, Release Agreement. As relevant here, the Agreement expressly included NYCBS and the City of New York, as well as all of NYCBS’s “owners, managers, affiliates, employees, agents, representatives, successors, and assigns” within the definition of “Released Persons.” Id.
Corwin moves for partial summary judgment to strike the City and NYCBS’s affirmative defenses based on the Release Agreement, arguing that the Agreement is ambiguous, contrary to law, and/or void as a matter of public policy. For their part, the City and NYCBS move for summary judgment arguing that Corwin’s negligence claims against them are waived by the release, with the exception of those sounding in gross negligence. Though it is not expressly named in the release, APD also argues that the claims against it are released because of its relationship to NYCBS.
As a threshold issue, the Court considers if there is a genuine dispute as to whether Corwin signed a release and, if so, its scope. Corwin argues that because defendants have failed to produce an actual copy of the Release Agreement with his electronic signature, or a [**23] copy of the Agreement as it existed when he became an annual member, defendants cannot demonstrate that he signed the waiver at all. Defendants have produced a declaration from Justin Ginsburgh, former General Manager of NYCBS and current Vice President of Business Development of its parent company Motivate Inc./Alta Bicycle Share, that describes the membership process and states that Corwin would have [*488] had to agree to the terms of the Agreement in order to become a member. ECF No. 316, Ginsburgh Decl., ¶¶ 7-9. Ginsburgh also declares that the Release Agreement appended to his declaration, dated July 15, 2014, was a “true and complete copy of the User Agreement that was in effect in May 2013 when Mr. Corwin became a Citi Bike member.”3 Id. at ¶ 10; ECF No. 371-3, Ginsburgh Supp. Decl., ¶¶ 2-3 (“The User Agreement . . . was fully in effect when plaintiff Ronald Corwin obtained his Citi Bike membership on June 25, 2013.”). Ginsburgh had previously noted in deposition testimony, however, that he was no longer in his General Manager position as of April 1, 2014, and therefore “[didn’t] know if any changes occurred [to the membership signup] after that.” ECF No. 360-6, Justin Ginsburgh Depo. [**24] at 463. Corwin stated in deposition testimony that he completed the membership application and “signed whatever it is [he] had to sign in order to get [his] Citi Bike pass,” but did not remember the contents of the Agreement or whether he had read it. ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.
3 The first Ginsburgh Declaration inaccurately references Corwin becoming a Citi Bike member in May 2013; in fact, Corwin became a Citi Bike member on June 25, 2013.
Corwin has failed to “set forth specific facts demonstrating that there is a genuine issue for trial,” Wright, 554 F.3d at 266, as to the existence and scope of the Agreement. Defendants have produced declaration testimony from Justin Ginsburgh, and Corwin has challenged the credibility of those statements. He has not, however, despite extensive discovery, introduced any evidence that there was an agreement with different terms in effect when Corwin became a Citi Bike member, or even any evidence that raises doubt as to whether the Agreement provided by defendants was in effect. Nor has Corwin provided any evidence that he was somehow able to sign up for his Citi Bike membership without following the process described by Ginsburgh, which required him to manifest assent to the Release Agreement. Therefore, Corwin has failed to raise a genuine dispute of material fact regarding the existence of a contract between [**25] the parties. Accordingly, whether or not Corwin’s claims are barred by the Release Agreement shall depend solely on the effectiveness of Corwin’s assent under the circumstances, and the enforceability of the waiver provisions as to the various defendants.
A. Unconscionability Analysis in Online “Clickwrap” Contracts
The first question for the Court’s consideration is whether, absent any overarching questions of statutory or common law public policy, the contract is enforceable on its own terms or whether, as Corwin argues, it is an “unconscionable and unenforceable contract of adhesion.” A contract or clause is unconscionable when it was “both procedurally and substantively unconscionable when made–i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 534 N.E.2d 824, 537 N.Y.S.2d 787 (1988) (internal quotation marks and citations omitted); see also Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999).
The parties agree that the contract in question is a “clickwrap” agreement. Such an agreement requires the user to take an affirmative action, usually, the clicking of a box that states that he or she has read and agrees to the terms of [*489] service. “[U]nder a clickwrap arrangement, [**26] potential licensees are presented with the proposed license terms and forced to expressly and unambiguously manifest either assent or rejection prior to being given access to the product.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2d Cir. 2004). Clickwrap agreements are “more readily enforceable [than online contracts that do not require the user to take an affirmative action], since they ‘permit courts to infer that the user was at least on inquiry notice of the terms of the agreement, and has outwardly manifested consent by clicking a box.'” Meyer v. Kalanick, No. 15-CV-9796 (JSR), 199 F. Supp. 3d 752, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *6 (S.D.N.Y. July 29, 2016) (citing Cullinane v. Uber Techs., Inc., No. 14-CV-14750 (DPW), 2016 U.S. Dist. LEXIS 89540, 2016 WL 3751652, at *6 (D. Mass. July 11, 2016)). While the Court of Appeals has not categorically ruled on the issue, it has strongly implied that such contracts are presumptively enforceable. See, e.g., Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (noting that case would have been “simpler to resolve had [defendant] used a ‘clickwrap’ mechanism to provide reasonable notice and to obtain [plaintiff’s] assent”). Accordingly, most lower courts have enforced such contracts, absent extraordinary circumstances. See Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 397 (E.D.N.Y. 2015) (collecting cases); Centrifugal Force, Inc. v. Softnet Commc’n, Inc., No. 08-CV-5463 (CM), 2011 U.S. Dist. LEXIS 20536, 2011 WL 744732, at *7 (S.D.N.Y. Mar. 1, 2011) (“In New York, clickwrap agreements are valid and enforceable contracts.”).
Nevertheless, a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability [**27] of clickwrap contracts turns on whether the website provided “reasonably conspicuous notice that [users] are about to bind themselves to contract terms.” Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002) (Sotomayor, J.). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways.” Meyer, 2016 U.S. Dist. LEXIS 99921, 2016 WL 4073071, at *8.
In this case, NYCBS represents that “before the prospective member can proceed to pay for the membership, each person is shown the . . . ‘User Agreement.’ The User Agreement is displayed on the page in its own scrollable text box, which may also be opened in a new window for ease [**29] of viewing and printing.” ECF No. 316, Ginsburgh Decl., at ¶ 7. The “continue” button allowing Corwin to provide his payment information would not activate until Corwin clicked on a statement reading “I certify that I am the Member, I am 18 years old or over, and I have read and agree to the conditions set forth in [sic] User Agreement.” Id. at ¶¶ 8-9; Release Agreement, ECF No. 316-1 at 56. The Release Agreement itself, roughly 10 pages in length, contained a bold-faced and underlined section in larger font titled “Releases; Disclaimers; Limited Liability; Assumption of the Risk.” The text of the sections in question are in normal-sized font. Though Corwin stated that he had no specific recollection of reading and signing the Release Agreement, he did admit “I don’t deny that I signed whatever it is I had to sign in order to get my Citi Bike pass.” ECF No. 315-4, Ronald Corwin 9/9/2015 Depo. at 195.
Applying the considerations in Berkson, the Release Agreement is enforceable. The full scrollable text of the agreement was available on the same page a user must utilize to register, requiring no clicking of hyperlinks, and the user cannot continue to input his payment information until [**30] he signals assent to the agreement by taking the affirmative step of clicking a box. While it is possible to imagine clearer signaling of the importance of the waiver provisions to an unwary or unsophisticated consumer, the terms are not hidden or buried in an obscure part of the website, but rather are in plain view. Accordingly, the Release Agreement is not unconscionable, and Corwin is not entitled to strike the City and NYCBS’s affirmative defenses on this basis.
To be enforceable, an exculpatory agreement must be stated in clear, coherent, unambiguous language and expressly release a defendant from ordinary claims. See, e.g., Spancake v. Aggressor Fleet Ltd., No. 91-CV-5628 (DLC), 1995 U.S. Dist. LEXIS 7319, 1995 WL 322148, at *4 (S.D.N.Y. May 26, 1995). Corwin argues that the waiver is unenforceable due to ambiguity, finding a conflict between Section 8 (“Limited Liability”), which purports to release defendants from claims arising from riders’ “failure to wear a bicycle helmet while using a Citi Bike bicycle,” and Section 5, which does not list failing to wear a helmet as one of 11 “Prohibited Acts.” ECF 316-1, Release Agreement.
There is plainly no contradiction between Section 5 and Section 8. Section 5 lists actions, such as defacing a Citi Bike bicycle, transferring a bicycle to a non-member, or using a cellphone while riding that [**31] could presumably lead to contractual consequences for the member. Not wearing a helmet is not prohibited, which is also consistent with New York law allowing adult cyclists to ride without a helmet. See infra Part III.
Section 8 instead provides a non-exhaustive list of circumstances for which the [*491] contract seeks to limit liability. On its face, the fact that this list is not identical to that in Section 5 presents no contradiction, as they are presented for entirely different purposes.4 Moreover, the examples in Section 8 are meant only to illustrate some of the circumstances under which liability is to be limited; the section refers to limited liability for “any claim, including those that arise out of or relate to . . . your failure to wear a bicycle helmet while using Citi Bike bicycle.” Id. (emphasis added).
4 On wholly separate grounds, in Part III of its opinion, the Court grants Corwin summary judgment on Defendants’ affirmative defenses that Corwin’s failure to wear a bicycle helmet relieves them of liability because as a matter of New York law, the failure to wear a helmet goes only to the question of mitigation of damages. This does not, however, affect the clear and unambiguous nature of the waiver provisions.
As such, the Release Agreement is not void due to ambiguity.
C. Unenforceability on Public Policy Grounds
New York law “frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny.” Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979). Therefore, an exculpatory contract must express “in unequivocal terms the [**32] intention of the parties to relieve a defendant of liability for the defendant’s negligence.” Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); Roane v. Greenwich Swim Comm., 330 F. Supp. 2d 306, 321 (S.D.N.Y. 2004) (finding that appearance of the actual word “negligence” was significant in determining whether exculpatory contract was to be enforced). But “even an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced . . . if it is found to violate public policy . . . .” Ash v. New York Univ. Dental Ctr., 164 A.D.2d 366, 369, 564 N.Y.S.2d 308 (1st Dep’t 1990).
Public policy “is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Lubov v. Horing & Welikson, P.C., 72 A.D.3d 752, 753, 898 N.Y.S.2d 244 (2d Dep’t 2010) (citation omitted); see also Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216, 222, 872 N.Y.S.2d 578 (3d Dep’t 2009) (defining New York public policy as “the law of the [s]tate, whether found in the Constitution, the statutes or judicial records”) (citation omitted). Parties may, however, “agree to give up statutory or constitutional rights in a contract, as long as public policy is not violated.” J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 20 N.Y.3d 113, 119, 980 N.E.2d 940, 957 N.Y.S.2d 275 (2012).
Corwin argues that the Release Agreement violates three sources of public policy–New York City Administrative Code § 19-110, which provides that municipal permit holders may be held liable for their own negligence, New York General Obligations Law § 5-326, which invalidates exculpatory clauses in agreements with operators of recreational facilities, and [**33] the City’s non-delegable common-law duty to maintain the public streets.
i. New York City Administrative Code § 19-110
New York City Administrative Code (“NYCAC”) § 19-110 reads:
Liability for damage. In all cases where any person shall engage in any activity for which a permit is required pursuant to [the subchapter concerning streets [*492] and sidewalks], such person shall be liable for any damage which may be occasioned to persons, animals, or property by reason of negligence in any manner connected with the work.
Corwin argues that this statute represents a “public policy” intended to provide a “statutory remedy” against all persons who negligently perform work subject to the issuance of a permit. He notes that there was no explicit reference to waiving any rights or remedies under NYCAC § 19-110 in the Release Agreement, but even if there were, such a waiver would be unenforceable because of an alleged public policy to protect the public and ensure a remedy against any person acting under a permit to individuals injured by their negligence.
Case law regarding § 19-110 (and its predecessor provision, § 19-107) is sparse, and no court has held that § 19-110 provides a statutory right at all–much less a non-waivable statutory right elevated to [**34] the status of public policy. Instead, the available case law deals exclusively with whether the statute can be invoked as a basis for the City to seek indemnification, as opposed to contribution, from a negligent municipal contractor. See City of New York v. Consol. Edison Co., 198 A.D.2d 31, 31-32, 603 N.Y.S.2d 47 (1st Dep’t 1993) (finding that statute did not provide a basis for indemnification, but rather only that a contractor was responsible for its own negligence); Petrucci v. City of New York, 167 A.D.2d 29, 34, 569 N.Y.S.2d 624 (1st Dep’t 1991) (concluding that statute did not provide a basis for indemnification of the City, but only an “intent to render the contractor responsible for those damages actually caused to injured third parties or property by its own negligence or carelessness”); Libardi v. City of New York, 201 A.D.2d 539, 540-41, 607 N.Y.S.2d 717 (2d Dep’t 1994) (same).
This limited case law appears to do no more than clarify, in line with common-law negligence principles, that the City may seek contribution for damages to third parties occasioned by a negligent contractor or property owner conducting work pursuant to a municipal permit. It is plainly insufficient to constitute an overarching public policy guaranteeing Corwin the right to sue any contractor notwithstanding a contractual waiver. Indeed, Corwin has cited no case in which the statute was interpreted to provide a plaintiff a private right of action or a “statutory [**35] remedy” differing in any way from a common-law negligence claim. Accordingly, NYCAC § 19-110 cannot serve as a basis for invalidating the Release Agreement.
ii. New York General Obligations Law § 5-326
New York has a statutory restriction that invalidates exculpatory clauses or agreements between users and owners and operators of recreational facilities. N.Y. General Obligations Law (“GOL”) § 5-326 provides:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment 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 [*493] deemed to be void as against public policy and wholly unenforceable.
The Release Agreement explicitly refers to this statute, noting that Released Persons are not “responsible or liable . . . except as may [**36] otherwise be limited by New York General Obligations Law 5-326.” ECF No. 316-1.
In order for GOL § 5-326 to apply, the plain text of the statute indicates that the agreement in question must (1) be made between a user and an owner or operator of a “place of amusement or recreation” or “similar establishment,” and (2) a fee or other compensation must be paid for “use” of a “facility” covered by the statute. Courts that have considered situations where equipment was rented and taken out of the control of the facility owner or operator have additionally considered whether the owner or operator exercised a substantial level of control over the environment in which the recreational activity takes place. See, e.g., Dumez v. Harbor Jet Ski, Inc., 117 Misc. 2d 249, 250, 458 N.Y.S.2d 119 (Sup. Ct. Niagara Cty. 1981).
Corwin argues that the Citi Bike program was primarily, or at the very least, substantially, a “recreational” program, and that the defendants’ business plan presupposed a significant number of daily and recreational users. He cites to a state court proceeding in which a neighborhood association challenged the installation of a Citi Bike station in a public park on the grounds that it was purely a commuter program. There, the City argued and the court held that the program fulfilled a valid recreational purpose. Friends of Petrosino Square v. Sadik-Khan, 42 Misc. 3d 226, 977 N.Y.S.2d 580 (Sup. Ct. N.Y. Cty. 2013), aff’d, 126 A.D.3d 470, 5 N.Y.S.3d 397 (1st Dep’t 2015). Therefore, [**37] according to Corwin, because the Citi Bike rental station where the accident occurred was a “place of recreation,” and he paid a fee to access the facility in the form of his annual membership, GOL § 5-326 operates to invalidate the exculpatory clause in the contract.5
5 Corwin also argues that the express language in the Release Agreement referencing GOL § 5-326 operates as an admission that negligence claims stemming from Citi Bike are not waivable and “is compelling proof of defendants’ recognition that [the] waiver is void.” ECF No. 361, Pl.’s Reply Mem. at 8. This is incorrect. Rather, the reference to GOL § 5-326 is plainly to ensure that the waiver provisions are not overbroad, putting users on notice that any such claims, were they to exist, would not be waived. It is not an admission that such claims actually could exist, or that in this case they do exist.
While the parties may dispute whether Corwin’s fateful Citi Bike ride was “recreational” in character, it is clear that the applicability of GOL § 5-326 cannot possibly turn on whether the given individual was using the bicycle recreationally or for commuting purposes. Defendants, moreover, argue that the statute does not apply because the membership fee does not entitle the user access or use of any physical facility; the fee is solely for the rental of a bike, while any individual is free to traverse the Citi Bike stations or New York City streets.
Several New York courts have held that GOL § 5-326 does not apply to accidents occurring on publicly accessible roadways, trails, or fields. See Deutsch v. Woodridge Segway, LLC, 117 A.D.3d 776, 777, 985 N.Y.S.2d 716 (2d Dep’t 2014) (statute not applied to plaintiff who rented a Segway vehicle and was taken on defendant-guided tour of muddy public trail “because the fee she paid to the defendant was for the rental of the Segway vehicle, and was not an admission [**38] fee for the use of the public trail over which the tour was conducted”); [*494] Brookner v. N.Y. Roadrunners Club, Inc., 51 A.D.3d 841, 842, 858 N.Y.S.2d 348 (2d Dep’t 2008) (statute not applied to marathon runner because entry fee “was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run” and “public roadway in Brooklyn where the plaintiff alleges he was injured is not a ‘place of amusement or recreation'”); Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d 758, 758, 673 N.Y.S.2d 181 (2d Dep’t 1998) (statute not applied to cyclist on paid bike tour “since the Verrazano Narrows Bridge, where the plaintiff . . . was injured, is not a ‘place of amusement or recreation'”); Stuhlweissenburg v. Town of Orangetown, 223 A.D.2d 633, 634, 636 N.Y.S.2d 853 (2d Dep’t 1996) (statute not applied to accident occurring in softball game where no fee was paid to access field).
On the other hand, other courts have applied GOL § 5-326 to certain accidents on publicly accessible roadways, trails, or fields. See Williams v. City of Albany, 271 A.D.2d 855, 856-57, 706 N.Y.S.2d 240 (3d Dep’t 2000) (declining to follow Stuhlweissenburg and invalidating waiver for accident occurring in publicly accessible field for plaintiff playing in privately-operated flag football league); Filson v. Cold River Trail Rides, Inc., 242 A.D.2d 775, 777, 661 N.Y.S.2d 841 (3d Dep’t 1997) (invalidating waiver in horseback-riding accident guided by defendant but occurring on publicly accessible parkland); Wright v. Freeport Hudson Anglers, Inc., 2009 N.Y. Misc. LEXIS 4712 (Sup Ct. Nassau Cnty. Apr. 8, 2009) (invalidating waiver for sea accident occurring in fishing tournament).
In seeking to reconcile [**39] the case law, Defendants point out that every court to consider the applicability of GOL § 5-326 to an accident occurring on a public, paved, urban street has found the statute to be inapplicable. Corwin, for his part, argues that these cases are inapposite because the bike station was not part of a public road at all, but rather a separate “recreational facility” that happened to be located on a public road.6
6 If true, this, of course, would contradict Corwin’s argument that the Release Agreement is unenforceable as to the City because it purports to waive the City’s non-delegable duty to maintain its roads.
Considering the case law and the legislative intent animating the statute, the Court finds as a matter of law that a Citi Bike station is not a “facility” for the purposes of § 5-326. The stations are plainly more properly characterized as storage facilities for bicycles rather than facilities for recreation in and of themselves. Even if riders incidentally enter or pass through the stations on their bicycles, or if the design of the particular bike station that was the site of the accident encouraged riders to pass through it, this does not turn them into “places of amusement or recreation.” Assuming without deciding that Citi Bike is properly characterized as a primarily recreational program, the intended sites for that recreational use are the City’s roadways and bike lanes–the very types of [**40] paved public thoroughfares that courts have held are not “places of amusement or recreation.” See, e.g., Brookner, 51 A.D.3d at 842. Therefore, the station can only be defined in two ways: either it is part of the public road on which riders are meant to engage in recreational activity, or it is a storage facility that is not part of the roadway. Either way, it is not a “place of amusement or recreation” or “similar establishment,” as required to trigger the statute. Accordingly, GOL § 5-326 cannot serve as a basis for invalidating the Release Agreement.
iii. City’s Common Law Duty to Maintain the Roads
New York courts have long held “that a municipality owe[s] to the public the absolute [*495] duty of keeping its streets in a reasonably safe condition.” Friedman v. State, 67 N.Y.2d 271, 283, 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986) (quotations omitted); see also Wittorf v. City of New York., 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 (2014) (“[A] municipality has a duty to maintain its roads and highways in a reasonably safe condition and liability will flow for injuries resulting from a breach of that duty.”). As this duty has been characterized as “absolute” and “non-delegable” (though subject to the doctrine of qualified immunity, see infra Part IV), Corwin argues that the City’s duty applies to the bike station and wheel stop at issue and cannot be released by means of a private contract. The City [**41] contends that while it does indeed have a duty to maintain public roadways, a contractual waiver of this duty is permissible and would not offend any overarching public policy.
Before considering whether the City’s duty to maintain public roadways may be released by contract to a voluntary participant in a public transportation program such as Citi Bike, the Court must first determine whether the Citi Bike station where Corwin’s accident occurred properly falls within the scope of that duty. Indeed, defendants argue repeatedly that cyclists are not intended to use bike station areas as a travel lane, and that those facilities are intended only for the storage, retrieval, and return of bicycles. They contend that the presence of the concrete wheel stops and surrounding cross-hatching, white thermoplastic striping, and flexible delineators plainly distinguished the bike station from the adjoining roadway, and should have indicated to a cyclist that it was an area in which cycling was not permitted.
In determining the scope of a municipality’s duty, New York courts have generally considered whether the municipality affirmatively undertook to provide an improved area adjacent to the road, [**42] such as a shoulder. If so, it has generally been held to be responsible for its maintenance. See Bottalico v. State, 59 N.Y.2d 302, 305, 451 N.E.2d 454, 464 N.Y.S.2d 707 (1983) (finding highway shoulder to be within scope of duty because it was “both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon”). The touchstone of this analysis is foreseeability. It does not necessarily depend on the reasonableness of a plaintiff’s conduct. A municipality is required to “maintain the shoulder in a reasonably safe condition for foreseeable uses, including its use resulting from a driver’s negligence.” Id. at 304; see also Stiuso v. City of New York, 87 N.Y.2d 889, 891, 663 N.E.2d 321, 639 N.Y.S.2d 1009 (1995) (same); Saulpaugh v. State, 132 A.D.2d 781, 781-82, 517 N.Y.S.2d 328 (4th Dep’t 1987) (same).
On the other hand, no duty exists where a paved roadway “is more than adequate for safe public passage and travel beyond those limits is neither contemplated nor foreseeable.” Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 385 N.E.2d 581, 412 N.Y.S.2d 842 (1978) (noting that “utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way . . . [b]ut for the careful driver, the placement of these items near the pavement creates no unreasonable danger”). The courts have repeatedly denied recovery for roadway users whose injury stemmed from the lack of maintenance of areas near the roadway whose use was unforeseeable even in emergencies. [**43] See, e.g., Preston v. State, 6 A.D.3d 835, 836, 775 N.Y.S.2d 115 (3d Dep’t 2004) (no recovery for driver hitting tree seven feet from the edge of the travel line, where “nothing in the record indicat[ed] [*496] that defendant affirmatively took any action to create or maintain the area”); Green v. Cty. of Allegany, 300 A.D.2d 1077, 1077, 752 N.Y.S.2d 487 (4th Dep’t 2002) (no recovery for failure to maintain drainage ditch and culvert headwall); Muller v. State, 240 A.D.2d 881, 882, 658 N.Y.S.2d 727 (3d Dep’t 1997) (no recovery for failure to maintain drainage ditch headwall beyond the traversable shoulder where the “emergency use of such additional area was neither contemplated nor foreseeable”).
The record does not demonstrate that the City actively contemplated that cyclists would be passing through Citi Bike stations; indeed, precisely the alleged failure to contemplate this possibility forms the basis for Corwin’s argument that the City is not entitled to qualified immunity on this issue. The Court does find, however, that the possibility of cyclists passing through Citi Bike stations located in on-street parking lanes was foreseeable. At times, defendants’ representatives have seemed to admit that riding in the parking lane was, if not expressly permitted, at least a common practice of cyclists. ECF No. 335-24, Jon Orcutt 09/03/15 Depo. at 396-97. (“There are plenty of places with a wide parking lane . . . where [**44] a wide parking lane is kind of implemented as a stealth bike lane.”) This conclusion is buttressed by a brief traffic study conducted by Corwin’s expert, James M. Green. ECF No. 335, Green Decl. ¶¶ 35, 57 (finding that cyclists regularly circulated through the station at issue and arguing that this was a “foreseeable consequence of this Station design,” which was wider and jutted further out into the traffic lane). But even absent the expert’s study, logic dictates that, just as an automobile is not generally permitted to drive on an improved shoulder but may swerve into it (negligently or not) in a situation where the circumstances so require, it is foreseeable that a cyclist such as Corwin may (negligently or not) enter into the Citi Bike station seeking safety when feeling pressured by tight traffic.
This is, perhaps, an imperfect analogy: whereas the express and primary purpose of an improved highway shoulder is to provide a safe outlet for motorists in emergency situations, this is not so for Citi Bike stations, whose primary purpose is the storage, retrieval, and return of bicycles. Nevertheless, the applicable case law does not require that the primary purpose of the improved [**45] space abutting the road be for such emergency uses; as stated above, foreseeability is sufficient to trigger the municipality’s duty. Nor have courts drawn distinctions between motorists and other roadway users; instead, they have found that cyclists may bring claims predicated on state or municipal government’s failure to maintain roadways. See, e.g., Cotty v. Town of Southampton, 64 A.D.3d 251, 255, 880 N.Y.S.2d 656 (2d Dep’t 2009) (primary assumption of risk doctrine “not designed to relieve a municipality of its duty to maintain its roadways in a safe condition . . . and such a result does not become justifiable merely because the roadway happens to be in use by a person operating a bicycle”); Caraballo v. City of Yonkers, 54 A.D.3d 796, 796-97, 865 N.Y.S.2d 229 (2d Dep’t 2008) (“[T[he infant plaintiff cannot be said, as a matter of law, to have assumed the risk of being injured by a defective condition of a pothole on a public street, merely because he was participating in the activity of recreational noncompetitive bicycling, and using the bicycle as a means of transportation.” (citations omitted)).
Finally, there can be no question that the duty to maintain the roads applies not only to the physical condition of the road itself, but also to the placement of [*497] obstacles or hazards that make use of the road unsafe. Annino v. City of Utica, 276 N.Y. 192, 196-97, 11 N.E.2d 726 (1937) (municipality found liable [**46] for a tripod dangerously placed over a manhole cover so as to constitute a dangerous obstruction); Whitney v. Town of Ticonderoga, 127 N.Y. 40, 44, 27 N.E. 403 (1891) (“[T]he impairment of a highway for public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway.”).
Accordingly, the Court finds that the Citi Bike station, including all of its on-street equipment located in the parking lane, falls within the City’s non-delegable duty to maintain the public roads. Therefore, the Court must now decide whether the City can waive this duty by contract as a condition of participating in the Citi Bike public transportation program.
“[E]ven an agreement that clearly and unambiguously attempts to exempt a party only from liability for ordinary negligence will not be enforced by the courts . . . if it is found to violate public policy either by way of conflicting with an overriding public interest or because it constitutes an abuse of a special relationship between the parties, or both.” Ash, 164 A.D.2d at 369. Indeed, when choosing to invalidate such clauses, courts have often analyzed the “public interest” and “special relationship” prongs together. See id. at 369-71 (invalidating exculpatory clause between dental clinic and patient both [**47] because of the public interest in protecting the welfare of its citizens and ensuring medical quality and the uniqueness of the physician-patient relationship); Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 247-48, 194 N.E. 692 (1935) (invalidating clause between common carrier and passenger because allowing public service corporations to disclaim all liability for negligence by contract is contrary to public interest, and passengers are not typically given a choice in contracting); Johnston v. Fargo, 184 N.Y. 379, 384-85, 77 N.E. 388 (1906) (invalidating exculpatory clause between employer and employees both because of the state interest in the “maintenance of proper and reasonable safeguards to human life and limb” and the unequal bargaining power between the parties). On the other hand, courts have readily enforced exculpatory clauses in arm’s length commercial transactions between two private parties, see, e.g., Florence v. Merchants Cent. Alarm Co., Inc., 51 N.Y.2d 793, 412 N.E.2d 1317, 433 N.Y.S.2d 91 (1980), when not expressly prohibited by statute.
No case has considered the specific question of whether a municipality’s duty to keep its streets in a reasonably safe condition for travel can be waived by contract. For almost two centuries, however, New York state courts have spoken of an “absolute” duty that could not be delegated to third parties. See Annino, 276 N.Y. at 196 (1937) (“The city owed to the public the absolute duty of [**48] keeping its streets in a reasonably safe condition for travel and was bound to exercise reasonable care to accomplish that end.”) (emphasis added) (citations omitted); Storrs v. City of Utica, 17 N.Y. 104, 108-09 (1858) (finding that municipal corporations “owe to the public the duty of keeping its streets in a safe condition for travel” and “although the work may be let out by contract, the corporation still remains charged with the care and control of the street in which the improvement is carried on . . . [and cannot] either avoid indictment in behalf of the public or its liability to individuals who are injured.”). The only significant exception to this nondelegable duty is that “it is intended to protect the traveling public”–therefore, [*498] the duty has been held not to extend to injured employees of independent contractors working on road construction projects. Lopes v. Rostad, 45 N.Y.2d 617, 624-25, 384 N.E.2d 673, 412 N.Y.S.2d 127 (1978). In reaching this conclusion, the Lopes court stated that, because the government is responsible for providing the public with roads and highways for travel:
[w]ith this responsibility comes the further obligation to assure, insofar as is reasonably possible, that the thoroughfares of travel will be constructed and maintained in a safe condition. A governmental body would hardly [**49] have fulfilled its responsibility if the roadways it provided for public use were a source of public danger. It is for this reason that “[g]overnments have ever been most zealous to afford special protection to the users of streets, highways and other means of transportation” (1936 Report of NY, Law Rev Comm, p 955).
Id. at 625.
Corwin, a cyclist passing through a bike station located in a parking lane on a public street, falls within the category of those deemed protected by a municipality’s duty to maintain its roadways. While it is certainly understandable that the City would seek to limit its exposure to liability stemming from those using the Citi Bike program, its desire to see this salutary transportation initiative succeed is not sufficiently related to the key, centuries-old public policy of guaranteeing the safety of the users of City streets. It is this public policy that underlies its non-delegable duty to keep streets and roadways safe. The City has designed a public transportation system that involves physical installations in parking lanes on heavily transited streets, and permitted a contractor, NYCBS, to implement and manage that program. Even though the purported liability waiver is confined [**50] to road conditions in the circumscribed area of the bike stations, the Court finds that the enforcement of such a waiver against over a million Citi Bike users is contrary to the public policy that dictates that the City has the duty to guarantee road safety.7
7 The waiver would certainly be effective as to claims unrelated to road conditions, such as, for example, the quality of the bicycles or the malfunctioning of the rental kiosks.
After all, the fact that Corwin was riding a Citi Bike, as opposed to his own bicycle, at the time of his accident was purely coincidental. The City does not articulate any public policy in barring Corwin’s claim but permitting a claim brought by a non-member of Citi Bike who strikes the same wheel stop while riding his own bicycle. There is no basis for immunizing the City from suit by one class of cyclists–who participate in a highly publicized transportation program such as Citi Bike–while allowing non-Citi Bike users to bring suit for the same accident occurring in the same area of the street. Simply put, the law clearly imposes upon the City a duty to ensure road safety for all pedestrians, cyclists, motorists, and road users on all sections of the road that are foreseeably transitable.
At oral argument, counsel for the City indicated that the execution of transportation programs such as Citi Bike would not be feasible without [**51] such waivers of liability. But the City is not left wholly unprotected. As discussed in Parts IV and V of this opinion, the finder of fact may determine that the City is entitled to qualified immunity in regards to the station design, or that the City was not “affirmatively negligent” and is thus protected by the notice provisions of New York Administrative Code § 7-201. Therefore, the Court does not believe that its invalidation of the [*499] waiver as to road conditions and hazards within the bike stations threatens the viability of the Citi Bike program.
For the foregoing reasons, the Release Agreement effectively releases Corwin’s common-law negligence claims against NYCBS, allowing only claims of gross negligence to proceed against it. The waiver does not apply to the City, however, because such a release of the City’s duty would be contrary to public policy; accordingly, Corwin may proceed with his common-law negligence claims against the City. The Court need not decide if the APD is a “Released Person” under the Agreement, as it grants summary judgment to APD on all claims in Part VIII of this opinion on other grounds.
III. Affirmative Defenses Based on Corwin’s Failure to Wear [**52] a Helmet
Defendants have set out various affirmative defenses–including comparative negligence, primary assumption of the risk, and failure to mitigate damages–premised on the uncontested fact that Corwin was not wearing a bicycle helmet at the time of the crash. Corwin moves for partial summary judgment on all of these defenses, arguing that there was no statutory obligation that he do so, that the City and NYCBS themselves represented that wearing a helmet was unnecessary, and that New York Vehicle and Traffic Law (“VTL”) § 1238(7) and case law in New York and other jurisdictions expressly prohibits such conduct from being considered for the purposes of liability or damages.
As a preliminary matter, Corwin argues that defendants have failed to produce sufficient evidence to raise a factual question as to whether there was an unreasonable risk of a head injury while riding a Citi Bike without a helmet. Summary judgment is improper if “there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party . . . .” Chambers, 43 F.3d at 37. There are disputed questions of material fact in this case as to both (a) whether a reasonably prudent person in Corwin’s [**53] circumstances would have worn a helmet and (b) whether wearing such a helmet would have mitigated the damages Corwin suffered. See, e.g., ECF No. 344, Decl. of Elizabeth McCalley (arguing that Corwin would not have sustained many of his severe injuries had he worn a helmet).
There is no dispute that Corwin was not obligated to wear a helmet while riding a Citi Bike or any other bicycle; unlike the seatbelt requirements of N.Y. VTL § 1229-c, there is no statutory obligation for an adult bicyclist to wear a helmet while riding a bike on a public road. N.Y. VTL § 1238(5) does require children under the age of fourteen to do so, but imposes no affirmative obligations on individuals over that age. A subsection of the same statute also indicates that “the failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action.” VTL § 1238(7); see also Lamica v. Precore, 273 A.D.2d 647, 647-48, 709 N.Y.S.2d 694 (3d Dep’t 2000) (in accident involving helmetless child on bicycle, dismissing defendants’ counterclaim that parents were negligent [**54] for failing to ensure child wore helmet). Therefore, Corwin argues, if New York has seen fit to preclude expressly the consideration of helmet evidence for either liability or damages purposes even when wearing a helmet is mandated [*500] by law, surely the failure to wear a helmet by someone not obligated to do so by law should be similarly inadmissible.
The fact that New York has categorically barred the consideration of such evidence in a statute aimed at the protection of children does not, however, imply that the state has a general public policy against the admission of such evidence for all bicycle riders. Indeed, though Corwin argues that it would be “anomalous and irrational” to admit helmet evidence for an older rider under no legal obligation to wear a helmet, there is a clear and obvious rationale for the limited reach of the statute: a desire to prevent families from being burdened with costs stemming from accidents occurring on account of their young children’s inability to perceive risks, and a determination that parents should not be found negligent for failing to ensure that their children wear helmets. No court has interpreted VTL § 1238(7) to stand for a general public policy that the [**55] failure to wear a helmet is inadmissible for purposes of measuring comparative negligence or mitigation of damages, and the Court declines to do so today.
While the New York Court of Appeals has not spoken authoritatively on the specific question of whether the non-use of a bicycle helmet is admissible under such circumstances, the framework that it adopted regarding the non-use of seat belts in automobiles is instructive. At a time when no law mandated that occupants of a passenger car wore seat belts, the court explicitly rejected the failure to wear a seat belt as a basis for contributory negligence8 or primary assumption of the risk, but concluded that:
nonuse of an available seat belt . . . is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However . . . the plaintiff’s nonuse of an available seat belt should be strictly limited to the jury’s determination of the plaintiff’s damages and should not be considered by the triers of fact in resolving the issue of liability. [**56]
Spier v. Barker, 35 N.Y.2d 444, 449-50, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974).
8 Though the Spier decision was rendered before New York’s adoption of the comparative fault system and therefore discussed only if a plaintiff would be wholly barred from recovery under the then-existing doctrine of contributory negligence, New York courts have consistently considered seat belt evidence exclusively for purposes of mitigation of damages, and not for the apportionment of comparative fault. See, e.g., Stein v. Penatello, 185 A.D.2d 976, 976-77, 587 N.Y.S.2d 37 (2d Dep’t 1992).
Therefore, in cases involving the failure to wear a seat belt, New York law imposes a pre-accident obligation to mitigate damages, and the burden of proving that the injured party failed to do so rests upon the defendant. Davis v. Davis, 49 A.D.2d 1024, 1024, 374 N.Y.S.2d 482 (4th Dep’t 1975). Lower New York courts have applied the same principles to other types of protective gear as well. See, e.g., Penzell v. State, 120 Misc. 2d 600, 466 N.Y.S.2d 562, 567 (Ct. Cl. 1983) (motorcycle helmets); Giannetti v. Darling Del. Carting Co., 175 Misc. 2d 1, 666 N.Y.S.2d 372, 374-76 (Sup. Ct. Suffolk Cnty. 1997) (safety gloves in fast food restaurant). And, indeed, in the state court proceedings parallel to this case, the Appellate Division explicitly applied this reasoning to bicycle helmets, noting that “[Corwin’s] failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability, but rather to how [*501] damages, if any, should be assessed.” Corwin v. City of New York, 141 A.D.3d 484, 490, 36 N.Y.S.3d 118 (1st Dep’t 2016) (citation omitted).9
9 State courts in other jurisdictions have also drawn analogies between seat belt and helmet use. See, e.g., Stehlik v. Rhoads, 2002 WI 73, 253 Wis. 2d 477, 645 N.W.2d 889 (Wis. 2002) (same principles govern seat belt and helmet defenses for ATV rider); Meyer v. City of Des Moines, 475 N.W.2d 181, 186 (Iowa 1991) (same for moped rider); Warfel v. Cheney, 157 Ariz. 424, 758 P.2d 1326 (Ariz. App. 1988) (same for motorcyclist).
To be sure, some courts across the country have reached contrary conclusions.10 See, e.g., Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 647-48 (D.N.J. 1997) (noting that nothing in federal or state law alerts adult cyclists that their rights may be prejudiced by failure to wear a helmet, finding fewer safety concerns with helmetless biking and rejecting analogy to seat belt laws); Walden v. State, 250 Mont. 132, 818 P.2d 1190, 1196-97 (Mont. 1991) (holding same in state where evidence [**57] of seat belt use is inadmissible for mitigation of damages purposes). The decision in Corwin, however, and the logic of Spier and the New York cases extending it beyond the seat belt domain, compel denial of Corwin’s motion for summary judgment as it pertains to the affirmative defenses relating to mitigation of damages.
10 Corwin relies on Phelan v. State of New York, 11 Misc. 3d 151, 804 N.Y.S.2d 886 (N.Y. Ct. Cl. 2005), where the New York Court of Claims declined to consider a bicyclist’s non-use of a helmet in mitigation of damages. The case, however, is distinguishable as “no persuasive testimony, medical or otherwise, was proffered to establish that [plaintiff’s] injuries would have been either avoided or reduced had she worn a helmet.” Id. at 167. Therefore, the defendant failed to make even a prima facie case that damages should be mitigated by the decedent’s failure to wear a helmet. To the extent that Phelan also based the decision on the fact the “[d]ecedent was not required to wear a helmet [by law],” this is inconsistent with the Appellate Division’s decision in Corwin, 141 A.D.3d 484, 36 N.Y.S.3d 118, and the logic of Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916.
Nevertheless, even as Spier and its progeny indicate that Corwin’s non-use of a helmet will be admissible for the purposes of calculating damages, the cases also hold that such evidence is inadmissible on questions of liability. Therefore, defendants shall not be permitted to argue that Corwin was comparatively negligent for failing to wear a helmet.11 For the same reason and for the reasons expressed in Part VI of this Opinion, defendants will also not be permitted to argue that Corwin’s claims are barred by the doctrine of primary assumption of risk. See also Cotty, 64 A.D.3d at 256 (2d Dep’t 2009) (“[R]iding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine.”).
11 Of course, defendants may still argue at trial that Corwin was comparatively negligent for other reasons, including, inter alia, the speed, manner, and location of where he was riding his bicycle.
Accordingly, Corwin’s motion for summary judgment is DENIED as to the City’s Seventh and Ninth affirmative defenses (ECF. No. 200), NYCBS’s Sixth affirmative [**58] defense (ECF No. 199), and Metro Express’s Sixth affirmative defense (ECF No. 213) concerning the relevance of his non-use of a helmet to mitigation of damages, and GRANTED as the City’s Second and Eighth affirmative defenses, NYCBS’s First and Seventh affirmative defenses and Metro Express’s Second and Seventh affirmative defenses, inasmuch as those defenses assert the relevance of his non-use of a helmet to comparative negligence and assumption of the risk. Sealcoat [*502] did not explicitly reference Corwin’s failure to use a helmet as an affirmative defense, (ECF No. 211) and in Part VIII, the Court grants summary judgment to APD and APDNY, thus rendering the question of summary judgment on their First affirmative defense moot.
IV. Qualified Immunity
A. City’s Qualified Immunity for Bike Station Design and Wheel Stop Placement
The City of New York moves for summary judgment on the grounds that its involvement in the design and planning of the Citi Bike program is a uniquely governmental function for which it is entitled to qualified immunity as a matter of law. See Valdez v. City of New York, 18 N.Y.3d 69, 76, 960 N.E.2d 356, 936 N.Y.S.2d 587 (2011) (“Even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental [**59] function can avoid liability if it . . . proves that the alleged negligent act or omission involved the exercise of discretionary authority.”).
“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.” Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 995 N.E.2d 131, 972 N.Y.S.2d 169 (2013). A municipality engages in governmental functions when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers,” and in proprietary functions when “its activities essentially substitute for or supplement traditionally private enterprises.” Id. (citations omitted). If a municipality acts in a governmental capacity, the plaintiff must prove that he was owed a special duty, and that the exercise of governmental authority was not discretionary. Turturro v. City of New York, 28 N.Y.3d 469, 478-79, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016).
Traffic planning decisions, including decisions about the design of roads and other facilities, are proprietary functions, arising from a municipality’s “proprietary duty to keep its roads and highways in a reasonably safe condition.” Wittorf, 23 N.Y.3d at 480. This duty, while “nondelegable . . . is measured by the courts with consideration given [**60] to the proper limits on intrusion into the municipality’s planning and decision-making functions.” Friedman, 67 N.Y.2d at 283 (internal quotation marks and citations omitted). As such, “in the specific proprietary field of roadway safety, a municipality is afforded ‘a qualified immunity from liability arising out of a highway planning decision'” under certain circumstances. Turturro, 28 N.Y.3d at 479-80 (quoting Friedman, 67 N.Y.2d at 283)).
Such immunity arises only when the defendant can “demonstrate that a public planning body considered and passed upon the same question of risk as would go to a jury in the case at issue.” Jackson v. N.Y. City Transit Auth., 30 A.D.3d 289, 290-91, 818 N.Y.S.2d 32 (1st Dep’t 2006) (finding general evaluation of buses referencing passengers’ ability to grab onto overhead racks insufficient to grant qualified immunity on claim that transit authority should have installed grab bars and handholds); Leon v. N.Y. City Transit Auth., 96 A.D.3d 554, 554-55, 947 N.Y.S.2d 33 (1st Dep’t 2012) (denying qualified immunity for passenger injured by falling in gap between train car and platform when City had only studied the risk that train would scrape platform); see [*503] also Turturro, 28 N.Y.3d at 483 (no qualified immunity for City’s failure to study speeding traffic on avenue); Poveromo v. Town of Cortlandt, 127 A.D.3d 835, 837, 6 N.Y.S.3d 617 (2d Dep’t 2015) (no qualified immunity for municipality’s failure to install certain traffic devices at an intersection absent a study); Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637 (2d Dep’t 2011) (no qualified immunity for design of traffic [**61] intersection in absence of any pedestrian traffic studies); cf. Levi v. Kratovac, 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 (2d Dep’t 2006) (qualified immunity granted for design of traffic intersection pursuant to a pedestrian safety study and reasonable traffic plan).
In light of these principles, the key question is whether the City’s planning of the Citi Bike program “passed upon the same question of risk” that this case presents–namely, that the placement of unpainted concrete wheel stops within Citi Bike stations could pose a tripping danger to cyclists. The City describes a collaborative process between it and APD based on its experiences with “bike corrals” that employed similar features, including wheel stops. ECF No. 293, City St. ¶¶ 40-42, 50. The City indicates that it viewed wheel stops as “the most important safety feature that was also installed in 2011.” Id. ¶ 46. Accordingly, the result of its collaboration with APD was a set of guidelines including the use of “non-permanent bollards, wheel stops, and paint markings.” Id. ¶ 55; ECF No. 289-19, 04/23/12 Station Siting Guidelines at 11. The City notes that APD and APDNY considered a wheel stop to be a necessary feature to protect the bike station from vehicles encroaching on the station and [**62] damaging the equipment or injuring individuals who may be within the station. City St. ¶ 58; ECF No. 289-3, Adrian Witte 08/14/15 Depo. at 20-21; ECF No. 289-5, Jeff Olson 09/29/15 Depo. at 410-11. The City did not, however, approve of the use of wheel stops that extend outside of the parking lane and into the travel lane. City St. ¶ 66; ECF No. 291, Sameer Barkho Decl. ¶ 10. The City determined that a yellow and black object marker, which had been included in the original design of some bike corrals, was “optional” because the on-street bike parking station sat in a parking lane and not a travel lane, and “pavement markings were more than sufficient to signal to an approaching motorist or bicyclist the presence of the on-street bike parking station and the presence of the wheel stop in the parking lane.” Id. ¶ 11. On the contrary, wheel stops would be situated within a white painted rectangular box with “white paint markings forming diagonal lines within the rectangular box.” Id. at ¶ 12.
The record plainly indicates that the decision to install concrete wheel stops in Citi Bike stations was the product of careful consideration and deliberation between the City and APD’s design and [**63] engineering experts. This mere fact, however, does not suffice for the City to be entitled to qualified immunity as a matter of law. Corwin does not merely seek to have the fact finder “examine the criteria that were considered by the State’s professional staff, emphasize factors allegedly overlooked, and, with the benefit of hindsight, rule that the studies were inadequate as a matter of law.” Friedman, 67 N.Y.2d at 285-86. Rather, he argues that though the City considered the need and efficacy of wheel stop placement to prevent cars from encroaching into the stations and harming individuals or property, it conducted no studies whatsoever as to whether such wheel stops could constitute tripping hazards for cyclists passing through such stations.
[*504] Though it is a close question, because the City has obviously given the coloring, placement, and demarcation of wheel stops some thought, the Court finds that there is a genuine dispute of material fact as to whether the City studied or “passed upon the same question of risk” presented in this case. While there is extensive testimony in the record that the City believed that wheel stops were of great importance in protecting stations from automobiles, the City has presented [**64] no specific study that suggests that it considered the effect of wheel stop placement or design on the safety of pedestrians or cyclists passing through the station, or whether the City considered that the wheel stops might be in the foreseeable paths of cyclists who, by custom or necessity, pass through the Citi Bike station footprints. In particular, it is not clear on what basis the City decided that object markers were to be made “optional,” or if the City considered the adequacy of shorter wheel stops that would extend no further into the parking lane than the bikes themselves. Therefore, as a reasonable fact-finder could find that the City did not study or pass on the “same question of risk,” the City is not entitled to qualified immunity as a matter of law on the specific question of wheel stop placement. At trial, the jury will be asked special interrogatories to resolve these disputed facts.
B. City’s Qualified Immunity for Failure to Provide Bicycle Helmets to Citi Bike Users
The City also moves for summary judgment on the basis of qualified immunity on Corwin’s claims that “the intentional failure and refusal of the Defendants to design Citi Bike to include a convenient system [**65] of helmet rentals–as in place in Melbourne, Vancouver and Seattle–or otherwise provide helmets at all Citi Bike sites, was negligent . . . .” ECF No. 192, Second Am. Compl. ¶ 352.
The record plainly demonstrates that the City’s decision not to mandate or provide helmets to Citi Bike users was the fruit of a well-reasoned policy based on extensive study of the “same question of risk as would go to a jury in the case at issue.” Jackson, 30 A.D.3d at 290. As early as 2009, the City’s Feasibility Study noted that “increasing the number of bicyclists is one of the most reliable ways to increase bicyclist safety,” and cast doubt on the feasibility of helmet distribution. City St. ¶ 4; ECF No. 290-1, Bike Share Feasibility Study. The director of the City’s Bike Share Unit stated that the City found that “mandatory helmet laws decreased bicycle ridership in general and decreased participation in bike share programs in particular. [The City] considered statistics showing that mandatory helmets laws actually decreased the safety of bicycling . . . [and] bicycle riders wearing helmets tend to ride more recklessly than riders who do not.” ECF No. 290, John Frost Decl. ¶ 5. The City specifically noted that in Melbourne, [**66] Australia, mandatory helmet laws resulted in a lowered rate of bicycle usage. City St. ¶ 13; ECF No. 289-2, Kate Fillin-Yeh 08/20/15 Depo. at 46-48. The City also specifically considered installing automatic helmet rental machines and rejected the proposal on hygiene and structural integrity grounds in public comments justifying the policy choice. ECF No. 290, John Frost Decl. ¶ 6; ECF No. 289-1, Stephanie Levinsky-Shaw 08/12/15 Depo. at 222. Nevertheless, the City encouraged bicycle helmet use by distributing discount voucher coupons for the purchase of helmets to annual members and expanding helmet fitting and giveaway programs. ECF No. 290, Frost Decl. ¶ 7; ECF No. 289-2, Fillin-Yeh Depo. at 56, 60.
[*505] Contrary to Corwin’s contentions, the fact that Defendants may raise the issue of his non-use of a helmet to prove a failure to mitigate damages does not affect the City’s qualified immunity on this issue. Corwin will, of course, be free to demonstrate that his “conduct was not unreasonable under the circumstances and that he did not breach a duty of care because adults are not required to wear helmets while riding bicycles in New York City and the Citi Bike program does not provide helmets.” [**67] Corwin, 141 A.D.3d at 495 (Andrias, J., dissenting). He may not, however, seek to hold the City liable for what was a well-reasoned and studied determination made in the public interest. See Weiss v. Fote, 7 N.Y.2d 579, 588, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960) (“[C]ourts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits.”). Accordingly, the City is granted summary judgment on Corwin’s negligence claim regarding its failure to provide helmets because it has qualified immunity on this issue.
V. New York City Administrative Code § 7-201
New York City Administrative Code § 7-201(c)(2) provides that:
No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street . . . being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation . . . or where there was previous injury to person or property as a result of the . . . condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the . . . condition, and there was a failure or neglect [**68] within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.
Popularly known as the “Pothole Law,” the purpose of § 7-201(c)(2) is to prevent municipal liability for “nonfeasance” and to limit it to cases where the municipality had actual notice and opportunity to correct the hazardous condition. Katz v. City of New York, 87 N.Y.2d 241, 243, 661 N.E.2d 1374, 638 N.Y.S.2d 593 (1995). It is uncontested that the City did not have written notice of the installation of the specific wheel stop at the Madison Avenue end of the Citi Bike station where the crash occurred until after the accident, and that the drawing accompanying the permit does not show a wheel stop at that location. City St. ¶¶ 107-12. City records do not demonstrate any written complaints or claims of injury regarding a wheel stop at that location. Id. at ¶¶ 111-13.
There are, however, two exceptions to § 7-201(c)(2)–“that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” Yarborough v. City of New York, 10 N.Y.3d 726, 728, 882 N.E.2d 873, 853 N.Y.S.2d 261 (2008) (citation omitted).
Corwin does not merely allege that the City failed to remediate a dangerous condition created by a third party; indeed, his entire theory of liability [**69] is predicated on the premise that the City was affirmatively negligent in the design and placement of Citi Bike stations and wheel stops in the system as a whole. Additionally, he argues that the City was on notice of contractors’ failures to install stations as per plan specifications and yet failed to monitor them effectively, and ultimately approved an [*506] identical policy of putting wheel stops on both ends of Citi Bike stations. ECF No. 335-33, NYC Comptroller Audit; ECF No. 336-25, Station Plan w/ 2 Wheel Stops. The City, for its part, notes that neither it nor NYCBS, with whom it had a contractual relationship, actually installed the wheel stop at issue; rather, it alleges that it was installed by Sealcoat, a contractor of MetroExpress, who itself was NYCBS’s contractor. City St. ¶¶ 83-84.
The Court finds that there is a genuine dispute of material fact as to whether the City was affirmatively negligent so as to lose the written notice protections of § 7-201(c)(2). While Corwin cannot produce “smoking gun” evidence that the City affirmatively directed NYCBS or its agents to install the specific wheel stop in question, Corwin does provide evidence indicating that similar wheel stops were installed [**70] elsewhere in the City and that modifications to station plan installations were often done informally. See ECF No. 368-6 (10/30/2013 email from Dani Simons, NYCBS, to Stephanie Levitsky, DOT, stating “I do not know why [the wheel stop is] not in the drawings. I do know that [NYCBS directors] Hasib [Ikramullah] and Michael [Pellegrino] have both told me that we’ve started putting them on the cross-walk side of stations in high traffic areas . . . .”); ECF No. 336-19 (07/01/2013 email from Stephanie Levinsky to Jon Orcutt referencing “numerous on the fly modification[s]”); ECF No. 368-8 (May 15, 2013 email from DOT to NYCBS referencing “supplemental street treatments” not on the initial plan diagrams).
This evidence could lead a reasonable finder of fact to conclude that either the specific wheel stop in question, or all wheel stops that enter into the foreseeable pathway of a cyclist, were installed pursuant to affirmative acts of negligence by the City. The fact that the City had no direct contractual relationship or knowledge of the involvement of Metro Express or Sealcoat is not dispositive. Just as the City cannot delegate its duty to maintain the roads to a contractor, it cannot do so to a subcontractor [**71] of that contractor.
Accordingly, the question of whether the affirmative negligence exception to the written notice protections of § 7-201(c)(2) applies is a disputed question of fact to be resolved at trial, and the City is not entitled to summary judgment because it was not provided notice of the allegedly defective condition.12
12 Because the Court finds that the “affirmative negligence” exception may apply and because neither party has adequately briefed the “special use resulting in a special benefit” exception to § 7-201(c)(2), the Court declines to address the “special use” exception in this opinion.
VI. Primary Assumption of the Risk
The City, NYCBS, and APD also move for summary judgment on the grounds that the doctrine of primary assumption of the risk bars Corwin’s negligence claims. In voluntarily undertaken recreational activities, the duty of a defendant is “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.” Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986). In this case, the Release Agreement signed by Corwin contained explicit provisions on assumption of the risk, which state, inter alia, that “Member agrees that riding a Citi Bike bicycle involves many obvious and not-so-obvious risks, dangers, and hazards, which may result in injury or death . . . and that such risks, dangers, and hazards cannot always be predicted or [*507] avoided. Member agrees that such risks, dangers, [**72] and hazards are Member’s sole responsibility.” ECF No. 316-1, Release Agreement. Whether or not the broad assumption of the risk language is applicable depends on what courts consider to be the risks inherent in bicycling, recreational or otherwise, on a paved road in an urban environment.
The New York Court of Appeals has cautioned that the doctrine of assumption of risk is justifiable exclusively for its utility in “‘facilitat[ing] free and vigorous participation in athletic activities'” and warned that the doctrine must be “closely circumscribed” and not “applied outside this limited context” lest it unduly displace the state’s comparative negligence regime. Trupia v. Lake George Cent. Sch. Dist., 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010) (citing Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989)).13 Accordingly, the assumption of the risk doctrine is not applicable to this case. “In determining whether a bicycle rider has subjected himself or herself to the doctrine of primary assumption of risk, we must consider whether the rider is engaged in a sporting activity, such that his or her consent to the dangers inherent in the activity may reasonably be inferred.” Cotty, 64 A.D.3d at 255. Courts have consistently held that riding a bicycle on a paved road is not such a “sporting activity.” The fact that an individual may be engaging in a recreational [**73] or leisure activity is not enough because the doctrine “is not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.” Id.; see also Moore v. City of New York, 29 A.D.3d 751, 752, 816 N.Y.S.2d 131 (2d Dep’t 2006) (plaintiff did not assume risk of recreational cycling on paved park road); Vestal v. Cty. of Suffolk, 7 A.D.3d 613, 614-15, 776 N.Y.S.2d 491 (2d Dep’t 2004) (“[T]he injured plaintiff cannot be said as a matter of law to have assumed the risk of being injured as a result of a defective condition on a paved pathway merely because she participated in the activity of bicycling,” even where County argued that the pathway was “abandoned”).
13 In its reply memorandum of law, NYCBS appears to characterize Trupia as permitting an open-ended “social benefit” analysis to determine whether the assumption of risk doctrine applies and discusses the numerous beneficial aspects of the Citi Bike program as a public transit system. Trupia, however, was limited to discussing the social benefit to certain risky athletic activities and explicitly warns against applying the doctrine in any other context. 14 N.Y.3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127.
To be sure, courts have held that the doctrine of assumption of the risk applied in other contexts involving recreational cyclists. See, e.g., DeJesus v. City of New York, 29 A.D.3d 401, 402, 815 N.Y.S.2d 502 (1st Dep’t 2006) (plaintiff assumed risk for riding on pedestrian-only pathway in housing development); Chrem v. City of New York, 293 A.D.2d 301, 302, 741 N.Y.S.2d 201 (1st Dep’t 2002) (plaintiff assumed risk of steep drop-off in the back of a dirt mound not designated for cycling); Furgang v. Club Med, Inc., 299 A.D.2d 162, 162, 753 N.Y.S.2d 359 (1st Dep’t 2002) (“[T]he risk of encountering ruts and bumps while riding a bike over a rough roadway without a helmet is so obvious [that] as a matter of law, plaintiff assumed any risk inherent in the activity . . . .”); Goldberg v. Town of Hempstead, 289 A.D.2d 198, 198, 733 N.Y.S.2d 691 (2d Dep’t 2001) (“Since the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces, [**74] and the defective condition in this case was open and obvious, the infant plaintiff assumed [*508] the risk associated with riding her bicycle on the ballfield.”) (citations omitted); Calise v. City of New York, 239 A.D.2d 378, 379, 657 N.Y.S.2d 430 (2d Dep’t 1997) (plaintiff assumed the risk of hitting an exposed tree root on unpaved path in public park). These cases, however, are readily distinguishable because they all involved individuals riding a bicycle on an unpaved path or other area plainly not designated for cycling. While defendants contend that the Citi Bike station was such an “undesignated” area, the station was obviously integrated into the public roadway, and Corwin has at the very least raised a genuine dispute of material fact as to whether the design of this station compelled or encouraged him to ride through it to avoid riding dangerously close to traffic. Therefore, his brief passage through the parking lane and bike station cannot be analogized to a considered decision to engage in recreational mountain biking or to ride down an undesignated pedestrian walkway.
Accordingly, the doctrine of primary assumption of the risk is unavailable, and defendants are not entitled to summary judgment on this theory.
VII. “Open and Obvious”
A defendant has “no duty [**75] to protect or warn against an open and obvious condition which is not inherently dangerous.” Stern v. River Manor Care Ctr., Inc., 106 A.D.3d 990, 990, 965 N.Y.S.2d 377 (2d Dep’t 2013). Whether a condition was open and obvious is generally a question of fact inappropriate for summary judgment and “depends on the totality of the specific facts of each case.” Russo v. Home Goods, Inc., 119 A.D.3d 924, 925-26, 990 N.Y.S.2d 95 (2d Dep’t 2014). Nevertheless, “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . .” Tagle v. Jakob, 97 N.Y.2d 165, 169, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001). Defendants contend that Corwin’s claims fail as a matter of law because the concrete wheel stop, located in a striped white box with “zebra” cross-hatching underneath and surrounded by four three-foot-tall flexible delineators, was “open and obvious.”
Defendants’ claims are buttressed by cases holding that wheel stops located in parking lots or similar environments were sufficiently “open and obvious” so as to bar claims by injured pedestrians. See, e.g., May v. Ruby Tuesday, Inc., No. 13-CV-170 (FJS)(ATB), 2014 U.S. Dist. LEXIS 140090, 2014 WL 4966544, at *5-6 (N.D.N.Y. Oct. 2, 2014) (parking lot wheel stop open and obvious especially given plaintiff’s admission that she had previously seen it); Abraido v. 2001 Marcus Ave, LLC, 126 A.D.3d 571, 571-72, 4 N.Y.S.3d 43 (1st Dep’t 2015) (wheel stop in well-lit parking lot open and obvious); Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 868, 978 N.Y.S.2d 73 (2d Dep’t 2013) (parking lot wheel stop open and obvious when plaintiff admitted she was attempting to step over it); Wachspress v. Cent. Parking Sys. of New York, Inc., 111 A.D.3d 499, 499-500, 974 N.Y.S.2d 439 (1st Dep’t 2013) (parking [**76] lot wheel stop open and obvious); Zimkind v. Costco Wholesale Corp., 12 A.D.3d 593, 593-94, 785 N.Y.S.2d 108 (2d Dep’t 2004) (same).
Whether or not a potential hazard is readily visible to the naked eye is evidently an important consideration in determining whether it is open and obvious, but it does not definitively resolve the question because “[t]he nature or location of some hazards, while they are technically visible, make them likely to be overlooked.” Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 (1st Dep’t 2004). On at least two occasions, New York courts, considering the broader context of plaintiffs’ encounter with wheel stops, declined [*509] to find that they were “open and obvious.” In Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797-98, 22 N.Y.S.3d 106 (2d Dep’t 2015), the court found that a concrete wheel stop that began in a designated parking space but partially extended into and obstructed a pedestrian walkway was not “open and obvious” as a matter of law. Similarly, in O’Leary v. Saugerties Cent. Sch. Dist., 277 A.D.2d 662, 662, 716 N.Y.S.2d 424 (3d Dep’t 2000), a plaintiff who tripped over a concrete parking lot wheel stop raised a triable issue of fact by arguing that it was undetectable and camouflaged by cars parked bumper-to-bumper.
Were the Court to view the wheel stop, cross-hatching, and delineators in isolation, it would be hard-pressed to distinguish them from the conspicuous parking lot wheel stops that New York courts have found to be “open and obvious” as a matter of law. Notwithstanding [**77] Corwin’s argument that the wheel stop was “camouflaged” because it was not painted in a bright color that would contrast it with its surroundings, photographic evidence submitted by both Corwin and defendants suggests to the Court that it would have been readily visible to an observant pedestrian. Nevertheless, the types of obstacles that a pedestrian might expect to encounter in a parking lot are substantially different from those that a cyclist would expect in an on-street bike station. Therefore, the Court finds that Corwin has raised a genuine issue of material fact as to whether the wheel stop was open and obvious to an attentive person in his position–that is, a cyclist traveling within a station that arguably invited use as a bike lane.
The declaration of James M. Green, Corwin’s engineering expert, brings forth various issues relevant in this analysis. First, Green alleges that the Citi Bike station in question was wider than the specifications required, presenting Corwin with the “choice of continuing through the bike parking facility, or turning out into traffic, with only approximately 0.75 feet between [him] and moving vehicular traffic.” ECF No. 335, Green Decl. ¶ 56. An [**78] hour-long traffic study conducted by Green found that “cyclists circulate through the [Citi Bike] station with regularity” and that this was a “foreseeable consequence of this Station design.” Id. ¶¶ 35, 57. Green therefore argues that the wheel stop, though in a parking lane, was placed within the foreseeable path of a cyclist. Id. ¶ 46. He further concluded that various factors, including the wheel stop’s partial obscuring by parked bicycles, its lack of contrast against the grey asphalt, and a cyclist’s need simultaneously to pay attention to dynamic vehicular and pedestrian traffic, would have made the wheel stop inconspicuous, not “open and obvious.” Id. ¶¶ 48-49.
In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the non-moving party. See Scott, 550 U.S. at 378. Drawing all inferences in his favor, Corwin has distinguished the cases that feature garden-variety wheel stops in parking lots. Similar to the scenario in Rivera, 134 A.D.3d at 797, where the court did not find that a wheel stop was open and obvious as a matter of law when it partially obstructed a pedestrian walkway, there is a genuine dispute of material [**79] fact as to whether the wheel stop hazardously obstructed a path that was foreseeably and actually utilized by cyclists.
Accordingly, defendants are not entitled to summary judgment on the grounds that the wheel stop that caused Corwin’s accident was “open and obvious.”
[*510] VIII. Claims against Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC
Alta Planning + Design, Inc. and Alta Planning + Design + Architecture of New York, PLLC (collectively, “APD”), the architects and designers for the Citi Bike project who collaborated with the City to generate site plans for stations, move for summary judgment on Corwin’s claims of common law, gross, and professional negligence. APD notes that the key elements of the station that Corwin alleges caused his crash–primarily, the installation of the additional wheel stop at the east end of the station and the increased width of the station footprint–were installed in violation of its approved design. Corwin alleges that, even if APD did not recommend the installation of the specific wheel stop, their recommendation of unpainted concrete wheel stops throughout the Citi Bike system, and wheel stops’ placement within the [**80] foreseeable path of cyclists passing through stations were substantial factors in his accident. The Court need not resolve this dispute, however, because it finds that, regardless of the propriety of its recommendations to the City, APD did not owe a duty of care to Corwin under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002).
It is uncontested that, as an architecture firm, APD did not have any contractual obligations to install, inspect, or maintain Citi Bike stations and, therefore, could not be liable to Corwin under any theory dependent on its control of Citi Bike stations or wheel stops. See Gibbs v. Port Auth. of New York, 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 (1st Dep’t 2005) (“Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises . . . .”). It is similarly clear that APD had no direct contractual obligation to Corwin. Therefore, any duty to Corwin would necessarily flow out of APD’s contractual obligation to Alta Bicycle Share/NYCBS. “In the ordinary case, a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries.” Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 556 N.E.2d 1093, 557 N.Y.S.2d 286 (1990); see also H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896 (1928) (Cardozo, J.) (noting that a contrary holding would imply that a contracting party would be forced into “the involuntary assumption [**81] of a series of new relations, inescapably hooked together”).
In Espinal, the New York Court of Appeals, synthesizing decades of case law, announced three exceptions to the general principle that contracting parties do not owe a duty of care to third persons. These exceptions are:
(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’ (Moch, 247 N.Y. at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties (see Eaves Brooks, 76 N.Y.2d at 226) and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely (see Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 589, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994)).
Espinal, 98 N.Y.2d at 140.
Corwin could not have relied on APD’s continuing performance under its contract with Alta Bicycle Share/NYCBS because [*511] APD had no such obligations except submitting site plans, and it had no effect on the duty of the other defendants to maintain the bike stations safely. Therefore, the only Espinal exception that arguably applies is that APD “launched a force or instrument of harm” with its allegedly negligent site plans and recommendations for wheel stop placements. This standard is met where “the promisor, while engaged affirmatively in [**82] discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk.” Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 111, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002); see also Guzman v. Wackenhut Corp., 394 F. App’x 801, 803 (2d Cir. 2010) (summary order).
On these facts, accepting the argument that providing allegedly negligent design advice and site plans is sufficient to “launch a force or instrument of harm” would lead to the very limitless expansion of tort liability that New York law seeks to prevent. Moch Co., 247 N.Y. at 165 (Cardozo, J.) (“An intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose.”). Indeed, Corwin’s argument is that APD’s negligence consists not of specific malfeasance relating to the design of the Citi Bike station where his accident occurred,14 but its general negligence in approving the type, appearance, and placement of wheel stops throughout the Citi Bike system. The logical conclusion of this argument is that by providing services to Alta Bicycle Share/NYCBS, APD would be subjecting itself to potential tort liability to literally millions of potential plaintiffs who could be involved in an accident involving wheel stops in any one of hundreds of Citi Bike stations–even as [**83] it had no responsibility for the maintenance or installation of the allegedly hazardous obstructions.15 This is not the law as summarized in Espinal.
14 Indeed, as APD argues, the Citi Bike station at issue in this case did not conform to its plan at all. See ECF No. 321-30, APD Expert Report. Corwin’s own expert would seem to agree. In a rebuttal report, James M. Green contended that “the original Engineering design [presented by APD] was proper in minimizing the clearance behind the parked bicycles and leaving out a wheel stop at the [relevant] intersection and was not followed during the construction of the bike station.” ECF No. 321-24, Green 01/06/16 Rebuttal Report at 9.
15 Corwin’s evidence that APD actually had some responsibility for the installation of Citi Bike stations, which appears to consist of a single May 22, 2013 email from APD engineer Adrian Witte referring the installation of station “bridging” (ECF No. 336-28), and deposition testimony references to the “collaborative” process between APD, NYCBS, and the City (ECF No. 335-6. Jeff Olson 08/26/15 Depo. at ¶¶ 401-02, 484, 530), is insufficient to raise a genuine dispute of material fact about APD’s lack of responsibility over Citi Bike stations.
Finally, Corwin argues that APD was an alter ego of Alta Bicycle Share/NYCBS because APD served as the parent company over Alta Bicycle Share before its sale in 2014. ECF No. 192, Second Am. Compl. ¶ 16. “It is well-settled that the party seeking to pierce the corporate veil has the burden of establishing that there is a basis to do so.” Maggio v. Becca Constr. Co., 229 A.D.2d 426, 427, 644 N.Y.S.2d 802 (2d Dep’t 1996) (citations omitted). Notwithstanding the close relationship between APD and Alta Bicycle Share/NYCBS, and their former association, Corwin has failed to establish that APD is anything but a legitimate and separate business entity engaging in planning and design. “Those seeking to pierce a corporate veil of course bear a heavy burden of showing that the corporation was dominated as to the transaction [*512] attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. . . . An inference of abuse does not arise . . . where a corporation was formed for legal purposes or is engaged in legitimate business.” TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339-40, 703 N.E.2d 749, 680 N.Y.S.2d 891 (1998); see also Joseph Kali Corp. v. A. Goldner, Inc., 49 A.D.3d 397, 398-99, 859 N.Y.S.2d 1 (1st Dep’t 2008) (refusing to pierce corporate veil [**84] between two entities operated by same principal). On the record before it, the Court sees no conceivable equitable reason to disregard the corporate form in this case.
As the Court concludes that APD did not owe any duty to Corwin under Espinal, it need not consider APD’s alternate arguments regarding proximate causation and its defense that Corwin’s claim arose out of a deviation from its design. The Court GRANTS APD’s motion for summary judgment in its entirety.
IX. Claims against Metro Express Services, Inc. and Sealcoat USA, Inc.
Defendants Metro Express Services, Inc. and Sealcoat USA, Inc. (“Metro Express” and “Sealcoat,” respectively), third-party contractors who are alleged to have installed or sub-contracted the installation of the specific wheel stop that caused Corwin’s injuries, move for summary judgment, arguing that they did not owe Corwin a duty of care under Espinal, 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), and that the wheel stop is an open and obvious condition as a matter of law. Having already rejected the “open and obvious” argument in Part VII of this opinion, the Court considers whether Metro Express and Sealcoat had a duty to Corwin under one of the three Espinal exceptions discussed in Part VIII.
As was true [**85] for APD, there is no argument that Corwin “detrimentally relie[d] on the continued performance of the contracting party’s duties” or that Metro Express or Sealcoat “entirely displaced the other party’s duty to maintain the premises safely.” Id. at 140. Detrimental reliance becomes a consideration only when there is some form of continued contractual performance by the third-party contractor and is not relevant when the alleged negligent conduct concerns a one-time installation of station equipment (even if the contractor may have installed said equipment in many stations). And there is no evidence in the record that Metro Express or Sealcoat assumed any responsibilities, much less exclusive responsibilities, for the maintenance and safety of Citi Bike facilities.
Therefore, the only issue is whether there is a genuine dispute of material fact that Metro Express or Sealcoat “launch[ed] a force or instrument of harm.” Corwin contends that the wheel stop on the east side of the Citi Bike station was an “instrument of harm,” and a contractor negligently responsible for its installation could be found liable under Espinal. To be sure, “[a] builder or contractor is justified in relying upon the plans and specifications [**86] which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46, 145 N.E. 321 (1924). There are, however, genuine disputes of material fact as to whether the contractors installed the wheel stop in question and whether they did so pursuant to a plan provided them by NYCBS.
Citing ambiguities in emails received from NYCBS, Metro Express contends that a full installation of street treatments [*513] was never ordered for the Citi Bike station at issue, and in fact NYCBS only ordered Metro Express and Sealcoat to carry out repairs. ECF No. 366, Metro Express Reply Mem. at 3-4. Metro Express further notes that Sealcoat reported that there was nothing wrong with the station and never invoiced or received payment for any work. Id. at 5. Finally, it contends that Metro Express was never provided with a plan for the Station, and that NYCBS had been instructing Metro Express to install “supplemental street treatments” not depicted on the station plans, noting two specific instances in which they were ordered to do so in stations at Jay Street and Tech Place, and Charles Street and Greenwich [**87] Ave. Id. at 7-9.
While Metro Express and Sealcoat certainly raise issues of fact about their liability, there is sufficient information in the record to preclude a finding that they are entitled to judgment as a matter of law. For example, in addition to NYCBS’s allegations that Metro Express and Sealcoat were responsible for the installation, Ryan Landeck, Sealcoat Vice President, admitted in non-party deposition testimony in 2015 that Sealcoat had installed the wheel stop in question under Metro Express’s direction. ECF No. 289-10, Landeck 11/19/15 Depo. at 34, 45.16
16 Mr. Landeck later testified at a deposition that took place after Sealcoat was joined in the case that Sealcoat found that there was nothing to do be done at that location and Sealcoat did not invoice or receive payment for its alleged work at the station. ECF No. 368-3, Landeck 05/25/2016 Depo. at 51, 55. An October 23, 2013 email from Landeck to Michael Strasser, General Manager at Metro Express, further stated that “nothing was wrong at this station.” ECF No. 368-4.
Accordingly, the Court concludes that, unlike APD, there is a material dispute whether Metro Express and/or Sealcoat “launched a force or instrument of harm” if plaintiffs prove at trial that they negligently installed the wheel stop at the East 56th Street and Madison Avenue Citi Bike station in contravention of the site plan and the directions received from NYCBS. Unlike the case for APD, who provided general designs for hundreds of Citi Bike stations, there is no danger of an undue ballooning of tort liability because the contractors would be liable only for their own negligence and have an absolute defense if they can demonstrate [**88] that they were carrying out a pre-existing plan. Cf. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 430 (S.D.N.Y. 2014) (finding that Espinal and Moch stood for “the general public policy that courts will not impose a tort duty on a contracting party where doing so would expose the party to potentially unlimited and undefined liability” and finding a duty where there was “no risk of . . . boundless tort liability”).
Therefore, because the Court finds that a question of fact exists regarding whether Metro Express and/or Sealcoat “launched a force or instrument of harm,” Metro Express and Sealcoat’s motions for summary judgment are DENIED.
X. Gross Negligence Claims
Given that Corwin’s common-law negligence claims against NYCBS are barred by the enforceability of the Release Agreement as discussed in Part II of the opinion, NYCBS moves for summary judgment on the grounds that Corwin’s gross negligence claims fail as a matter of law.17
17 The City has also moved for summary judgment on this point; however, the Court has found that Corwin’s common-law negligence claims may proceed as to the City.
Under New York law, gross negligence is “conduct that evinces a reckless [*514] disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” Am. Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 556 (2d Cir. 1996) (quoting Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821, 823-24, 611 N.E.2d 282, 595 N.Y.S.2d 381 (1993)). “[T]he act or omission must be of an aggravated character, as distinguished from the failure to exercise ordinary care.” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998). “In order to establish a prima facie case in gross [**89] negligence, a plaintiff ‘must prove by a fair preponderance of the credible evidence’ that the defendant ‘not only acted carelessly in making a mistake, but that it was so extremely careless that it was equivalent to recklessness.'” Travelers Indem. Co. of Connecticut v. Losco Grp., Inc., 204 F. Supp. 2d 639, 644 (S.D.N.Y. 2002) (quoting Hong Kong Exp. Credit Ins. Corp. v. Dun & Bradstreet, 414 F. Supp. 153, 160 (S.D.N.Y. 1975)).
Drawing all reasonable inferences in favor of Corwin, the nonmoving party, summary judgment is not appropriate on Corwin’s gross negligence claims. If, as argued by Corwin’s expert James M. Green, NYCBS is proven at trial to have unjustifiably ignored sound engineering practices and placed camouflaged wheel stops in the direct and foreseeable paths of cyclists, a reasonable factfinder could conclude that their conduct was sufficiently reckless and/or aggravated to meet the gross negligence standard. The defendants’ motion for summary judgment on Corwin’s gross negligence claims is therefore denied.
Corwin’s motion for summary judgment on defendants’ affirmative defenses relying on the Release Agreement is GRANTED as to the City and DENIED as to NYCBS. Corwin’s motion for summary judgment on defendants’ affirmative defenses relating to his non-use of a helmet is GRANTED in part; defendants may not argue that this is relevant to questions [**90] of liability to establish comparative negligence or assumption of the risk, but if liability is found, may argue that Corwin failed to mitigate damages. The City’s motion for summary judgment is DENIED. NYCBS’s motion for summary judgment is GRANTED in part; because the Court finds that the Release Agreement is enforceable, Corwin’s common-law negligence and professional negligence and malpractice claims are dismissed, but he may still maintain gross negligence claims. APD’s motion for summary judgment is GRANTED. Metro Express and Sealcoat’s motions for summary judgment are DENIED.
The Clerk of Court is respectfully directed to terminate Dkt. Nos. 288, 295, 303, 304, 309, and 314 and terminate defendants Alta Planning + Design, Inc. and Alta Planning Design Architecture of New York, PLLC from the case.
/s/ Sarah Netburn
United States Magistrate Judge
DATED: New York, New York
March 1, 2017
Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.Posted: July 3, 2017
Spectators are always the biggest risk of many outdoor recreational activities. Even if they are behind fences or lines, the creep closer to the event and if a competitor leaves the track or run, it is the event host who might pay for the damages to the spectators.
State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County
Plaintiff: Andrea Ochall et al.,
Defendant: William M. McNamer et al.,
Plaintiff Claims: negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium
Defendant Defenses: Assumption of the Risk
Holding: for the Defendants
This court was almost tedious in its review of the facts and the application of the law to the facts in this case. This case is another one outside of the normal scope of this review; however, it covers assumption of the risk in infinite detail under Ohio’s law and deals with claims of spectators. Spectators are present at most sporting events and in some cases assume the risk, like the baseball rule at baseball games and sometimes do not.
The defendant land owner’s kids built a go-kart track. The decision involves a go-kart track in a homeowner’s back yard. The track was just a simple asphalt track. There were no barriers, no bleachers, nothing else except one bench. The land owner worked for a paving company so the track was paved. There was also a paved driveway from the barn where the go-karts were kept to the track. The track was built for no other purpose than for the use and enjoyment of the landowners and people they might invite over.
The track owner’s next-door neighbors used the track a lot and owned a go-kart that was stored with the landowner’s go-karts. However, the neighbors never used the track without asking permission before hand.
One day, the neighbors wanted to invite their friends to the track. Those friends became the plaintiffs.
Everyone took turns driving go-karts around the track, including the plaintiff. When not driving the go-karts, most of the people seemed to congregate on the asphalt drive between the track and the barn. The plaintiff argued this was a safe environment and the place to stand. There were no barriers between this or any place around the track and the track.
Various times during the day, different people drove off the track. After going off the track people simply drove back on the track and kept racing.
When not racing, the plaintiff was taking pictures. Taking pictures obscured the plaintiff’s view of what was going on sometimes.
During one race, the headband of one of the go-kart drivers slid down over her eyes. She grabbed the headband and through it off. While doing so she drove off the track striking the plaintiff.
The last picture the plaintiff took was the driver throwing her headband off.
The plaintiff’s sued the paving company the landowner worked for, as well as the landowner. The paving company was dismissed earlier on its motion and was not part of this discussion.
The plaintiff’s sued the landowner and the neighbors who invited them. The trial court dismissed the plaintiff’s claims based on various motions filed by the different defendants. The plaintiff appealed. The arguments presented in the various motions were boiled down to two and discussed without regard to the plaintiffs and all defendants even though they filed separate motions.
Analysis: making sense of the law based on these facts.
The appellate court first looked at assumption of the risk and whether it applied to this case. Assumption of the risk means the defendant owes the plaintiff no duty. Therefore, there is no negligence. Ohio recognizes three types of assumption of the risk: express, primary and secondary (implied).
Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” “Express assumption of the risk applies when parties expressly agree to release liability.” “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to plaintiff’s action.”
Primary assumption of the risk is the defense that is applied to people who voluntarily engage in sports or recreational activities.
Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”
The argument for this is some sports or recreational activities cannot be played without risk. If the risk is removed from the sport, then the value in playing or the sport disappears. Another baseball example is the batter assumes the risk of being hit by a badly thrown pitch. If you remove that risk, the batter has nothing to swing at and there is no game of baseball.
By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.”
Ohio law applies the doctrine of primary assumption of the risk to participants and spectators alike [emphasize added].
Thus, courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of owners, operators, and sponsors of recreational activities. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. The doctrine also applies to spectators and participants alike.
Assumption of the risk when applied to a sport or recreational activity is not dependent upon the plaintiff’s knowledge and appreciation of the risks of the sport or activity. Normally to assume the risk a person must know and understand the risk as required in primary assumption of the risk. In sporting or recreational activities, knowledge of the risk is immaterial. Whether a participant assumes the risk is solely based on the risks of the sport, not what the participant knows.
Furthermore, when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” (Noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.”
Those risks that apply are the ones directly associated with the activity. Consequently, a court must proceed with caution when examining the activity and the risks because assumption of the risk is a complete bar because no negligence can be proved. Was the risk that injured the plaintiff a risk of the sport and if so, was that risk increased by the activity of the defendant. If the risks are part and parcel of the sport, then the defendant does not owe a duty to the plaintiff.
[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.”
The doctrine of applying primary assumption of the risk to sports and recreational activities was created to ensure the sport was played vigorously and freely without fear of reprisal.
The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”);…
That doctrine then defines primary assumption of the risk when applied to a sport as:
…where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’
The test is then applied with a three-part test.
Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists.
Risks that are “foreseeable, common, and customary risks of the activity” are therefore assumed by participants whether they knew of the risks or not. The Ohio Supreme Court further defined the definition to mean “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’”
Looking at the risks of go-karting the court found that it was an inherent risk of the sport for a go-kart to leave the track. (Since go-karts had been leaving the track all day, this seems pretty implicit and also gives the plaintiff notice of the risk, although not required by the definition of primary assumption of the risk.)
Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object, which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons.
Primary assumption of the risk barred the claims of the plaintiffs.
The court then looked at whether the actions of the driver who left the track and struck the plaintiff where reckless which would defeat the defense of assumption of the risk. The court looked at the definition of recklessness under Ohio’s law.
An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.
That conduct must be measured against how the sport is played.
What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.”
Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.”
The plaintiff argued the defendants were reckless in failing to inform the plaintiff of the rules of the track. The court found there were no rules and there was no obligation to create them. The track was a backyard track built by the songs of the landowner for their enjoyment. There were no rules nor was there a requirement for the landowner to create rules for the use of the track.
Additionally, there is no duty to reduce or eliminate the risks of a recreational activity. The only duty is to not increase the risk of the activity. Consequently, the land owners did not owe a duty to create rules for the track or to inform the spectators of any rules if they were created.
Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity
The son of the landowner who built the track stated he had a ruled that spectators should stay in the barn. However, he had never enforced the rule. The court found that rule of no real value and no duty to create, enforce it or tell the plaintiff about it.
Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.
There was a bench located near the track. The defendant land owner’s son argued it was for racers to sit on between races to rest. The plaintiff argued it was there for spectators and built to entice the plaintiff to stand near it where she was injured. However, the court did not agree with this argument either.
However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.”
The plaintiff’s then argued it was reckless of the defendants to conceal the dangers of the track by failing to warn them of the risks or educating them of the dangers. However, they could not tie these arguments, failing to warn, to the injury received by the plaintiff. The court found even if they had been informed of the risks, it would not have changed anything; the plaintiff would still have probably been injured.
Another recklessness claim was directed at the adults in charge of the minor driver who injured the plaintiff when she drove off the track. However, again, they could not relate those claims to the cause of the accident.
Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident.
Finally, the plaintiff claimed the minor driver was reckless in how she drove.
Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall.
This argument failed because reckless conduct is a conscious act. There was no conscious decision to drive off the track. The decision was to remove the headband when it was blinding her.
…reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man
The court could not find in the plaintiff’s recklessness arguments, a proximate cause or a relationship in the arguments that might have or would have changed the way things happened.
However, every tragic accident does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.
The appellate court agreed with the trial court, and the case was dismissed.
So Now What?
The first issue is assumption of the risk applies to spectators. Spectators have always been the unknown possible lawsuit at events. Spectators usually pay to see the event so recreational use statutes provide no protection. They do not sign releases because they are not participating. However, based on this definition of assumption of the risk and the idea that a spectator should assume the risk because they watch the sport, a spectator is prevented from sung when injured under Ohio Law.
The second issue is the clear definitions of assumption of the risk defined in this.
On a side note, the plaintiff hired an expert witness who opined that the landowner should have built a small elevated wooden platform for spectators to stand on next to the track.
Hawn stated that a “reasonable solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.”
The expert also opined that the spectator’s area should have been relocated to the inside of the track and elevated. (So you have a group of people above the track level all turning around together to watch the race……)
Can you see what would happen at backyard playgrounds, sandboxes and every other play or recreational device in backyards? Sand boxes would have to come with sneeze guards you see on salad bars so sand could not accidentally be thrown in a grandparent’s face.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
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By Recreation Law Recfirstname.lastname@example.org James H. Moss
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