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Court Rules Bicycling Is a 'Leisure' Activity, Finds No Assumption of Risk
New York Law Journal
May 28, 2009
Drawing a distinction between "sporting" and "leisure" activities, a Brooklyn-based appellate court has refused to dismiss a lawsuit filed by an avid Long Island bicyclist who was injured in an accident precipitated by roadway repairs.
The Appellate Division, 2nd Department, in Cotty v. Southhampton, 2007-08536, declined to apply the assumption-of-risk doctrine as a matter of law and ruled unanimously that the negligence action of Karen Cotty could proceed.
Courts frequently dismiss such suits, guided by a public policy of encouraging "vigorous participation in athletic activities" and reasoning that athletes might otherwise be reluctant to play aggressively for fear of being sued, the panel said. Morgan v. New York City Board of Education, 73 NY 2d 650.
For example, another 2nd Department panel recently held in Anand v. Kapoor that a golfer had no duty, as a matter of law, to yell "fore" before making a shot that left another golfer blind in one eye.
But the Cotty panel took a different tack.
"[I]t 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," Justice Peter B. Skelos wrote for the court. "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 the risk as expansively."
Cotty was among club members who gathered at a local bicycle shop on weekends for long-distance rides. On July 27, 2002, she was the last rider in one of several groups of eight on Deerfield Road in Southampton during a 72-mile ride. Cotty had previously ridden on the road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction in the area.
Beginning on July 24, 2002, CAC Contracting Corp., under a contract with the Suffolk County Water Authority, had been replacing the asphalt in a trench that had been dug along the edge of the road to install a conduit for a water main. On the day of the accident, only one of two planned layers of asphalt had been laid, leaving a "lip" approximately one inch deep parallel to the road, where the pre-existing roadway and the newly paved section met.
As they approached the lip, the bicyclists, traveling at a maximum speed of 17 to 18 miles an hour, began a "hopping" maneuver. However, rider Peter Deutsch's attempt to get over the obstacle went awry and he fell in the path of Cotty, who was 1 1/2 wheel lengths behind him. Trying to avoid Deutsch, Cotty swerved and slid into the roadway, where she collided with an oncoming car.
"It was essentially a trap," Cotty's lawyer, Michael Gluck of Rosenberg & Gluck in Holtsville, said in an interview. "You ended up in this dangerous situation before you even knew it."
Cotty, who was airlifted from the scene and spent some time in the hospital, sued the Town of Southampton, the water authority and the contracting company for $250,000. She did not file a claim against Deutsch, but the authority impleaded him.
All of the defendants argued that Cotty's voluntary participation in biking and assumption of the risk inherent in that activity relieved them of any duty to her. Gluck, who is himself a bicyclist, argued that the road conditions had created "an extraordinary risk," one that she could not have anticipated.
Suffolk County Supreme Court Justice Robert W. Doyle declined to grant summary judgment, and the defendants appealed to the 2nd Department, where some judges, at least initially, expressed skepticism about Cotty's case.
In fact, Gluck said he was surprised the 2nd Department had ruled for his client.
"They ate my heart out at oral argument," he said.
In determining whether Cotty had subjected itself to the doctrine, Skelos said the court had to consider whether she had been subjected to a "sporting activity." And he said it was not sufficient to show the defendant was engaged in some form of "leisure activity" at the time of the accident.
If that were so, he observed, the doctrine could be applied to such everyday activities as a sightseeing drive in an automobile or motorcycle, or jogging, walking and inline skating for exercise. Further, he noted that "the doctrine is not designed to relieve a municipality of its duty to maintain the roadways in a safe condition."
He conceded that the distinction between sport and leisure was an "elusive" one but added that it was "important to draw that line" to avoid confusion with the former doctrine of contributory negligence in which a plaintiff's own negligence barred recovery.
The defendants had argued that Cotty had been following too closely behind Deutsch, but Skelos wrote that whether she had herself acted negligently was a matter of comparative fault that must be determined by the factfinder.
Justices Mark C. Dillon, Fred T. Santucci and Ruth C. Balkin joined in the decision. The case was argued Nov. 10.
Norman H. Dachs and Jonathan A. Dachs of Shayne, Dachs, Corker, Sauer & Dachs in Mineola represented the water authority and CAC Contracting.
Jonathan Dachs said he would recommend that the water authority seek leave to appeal to the New York Court of Appeals, which, according to the 2nd Department ruling, has not defined what constitutes a sporting event that would trigger assumption of risk.
Anita Nissan Yehuda of Thomas C. Sledjeski in Roslyn Heights represented the Town of Southampton. A representative for the firm said it would not comment on the decision.
Robert X. Larkin of Loccisano & Larkin in Hauppauge represents Deutsch. He said he too was surprised that the panel rejected the assumption-of-risk argument.
"It seemed like a natural," he said.
Larkin said his client had "done nothing out of the ordinary" for an experienced bicyclist and there was "nothing about his activities that were a breach of duty."
He suggested that Deutsch eventually would be removed from the suit.
Gluck said Cotty had made a good recovery and has returned to running. However, she is "too afraid to ride bicycles on the road," he said.
