Assumption of Risk Does Not Apply To Road Cyclist

When someone voluntarily engages in sporting events or athletic activities, the primary assumption of risk doctrine will bar a personal injury lawsuit to recover for injuries sustained from conduct or conditions which are inherent in that activity.  An interesting case involving assumption of risk and injuries sustained by a road cyclist was decided on May 19th by the Second Department  – Cotty v Town of Southampton, 2009 NY Slip Op 04020.

The plaintiff was a member of a bicycle club which engaged in long-distance rides.  On the day her injuries occurred, she was the last cyclist in a group of eight riders cycling on a public road during a 72-mile ride. She indicated in her deposition that the road was not smooth and had potholes. In fact, at the time, a construction company had replaced asphalt in a trench along the edge of the road so that a conduit for a water main could be installed.  Two layers of asphalt were to be laid to fill the trench to bring it level with the existing roadway.  However, at the time of the accident, only one layer of asphalt had been laid.  This left a lip approximately one inch deep, parallel to the length of the road where the existing road and the newly paved section met.  This lip was not marked in any way.

The plaintiff had previously ridden on that same road about 20 to 30 times, and as recently as two to four weeks before the accident.  She was aware of the construction on the road.  The roadway had no shoulder.  She was riding about one to two feet from the edge of the road, and approximately 1 to 1 1/2 wheel lengths behind the cyclist in front of her. They were riding at a speed of 17 to 18 miles per hour.

The bicyclists in the front of the pace line then began a “hopping” maneuver with their bicycles to avoid the “lip” in the road.  However, the rider in front of the plaintiff unsuccessfully attempted the maneuver, and fell in the path of the plaintiff’s cycling.  The plaintiff thus swerved and slid into the road where she collided with an oncoming car.

The plaintiff sued the Town, the construction company, and the Suffolk County Water Authority which contracted for the work.  The defendants moved for summary judgment arguing the plaintiff had assumed the risks commonly associated with cycling.

The Second Department denied the defendants’ motion allowing the plaintiff’s action to proceed to trial.The Court rejected a broad application of the assumption of risk doctrine to all forms of leisure activities.  It indicated that the doctrine was not designed to relieve a municipality of its duty to maintain its roadways in a safe condition.  The Court then contrasted previous cases in which the cycling took place on paved roads or paths with cases involving mountain biking on unpaved trails.  The Court noted that assumption of risk was applied in the mountain biking case, but not in the cases involving paved surfaces.  The difference of course was that in mountain biking it is reasonably foreseeable that the unpaved nature of the trails is exactly the appeal and challenge of the activity, and thus, participants assume risks associated with riding on rough surfaces.  But this is, according to the Court, was not the case with cycling on paved surfaces.

The Court also rejected arguments by the defendants that the plaintiff was cycling too closely.

The Court concluded stating:

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

Commentary:

I think the Court missed a critical consideration in its analysis.  The Court focused on the risk presented to the plaintiff by the lip in the roadway, or generally the condition of the roadway.  By that was not the only, or, in my belief, the main risk that was present in the circumstances and which precipitated the plaintiff’s injuries. The plaintiff was cycling in a pack of 8 riders over long distance and at a relatively high rate of speed.  And most crucially, the plaintiff was 1 to 1 1/2 wheel lengths behind the cyclist in front of her.  Although not explicitly indicated in the court’s opinion, it is apparent that the cyclists were riding in what is known in road cycling as a “pace line.”  This is a formation in which the cyclists follow each other in close formation so as to “draft” off each other to reduce wind drag, and thus, save energy.  This is a technique  which requires a considerable degree of skill, constant attention, quick reflexes, and a great deal of confidence and trust in your fellow riders.  And it is one of the primary pleasures and challenges of road cycling.

The assumption of risk doctrine applies to both the conditions inherent in a particular activity as well as the conduct of the participants.  By focusing merely on the lip in the road, the court seems to have neglected the particular way in which the cyclists were riding.  The cyclists did not have to be riding so close to each other.  They did not have to be riding at such a high rate of speed (particularly on a road undergoing construction).  And the riders did not have to attempt the “hopping” maneuver over the lip in the road.  It was in fact the failure of the rider in front of the plaintiff to execute the maneuver which precipitated the plaintiff injuries.  There is in fact nothing in the Court’s opinion which indicates that the rider in front of the plaintiff failed to execute the maneuver because of the lip.  The Court in its decision stated that the issue of whether the plaintiff was following too closely to the rider in front of her was an issue of comparative fault, which should be decided by a trier of fact.  I believe this is incorrect.  It was not merely the plaintiff who was following too closely.  It appears that it was the whole group who were riding in this manner.  Thus each individual member of the group had to have a great deal of trust or confidence that the rider in front of them did not make any sudden, unexpected, or risky maneuvers which could put the whole group at risk.  I submit that this was the risk that each individual member of the group assumed.

It may be that the defendants did not sufficiently develop the record, or advance this particular argument to the Court.  Nevertheless, I believe the Court could have taken a closer look at the manner in which the cyclists chose to ride.

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