Recreational Injuries And Assumption Of Risk In New York
One of the most common question that comes up in New York sporting accident cases is whether a defendant can be held liable for a dangerous condition or other negligence in a sporting activity or was the injury caused by a danger that is inherent in the game. Under New York law, there is a duty to exercise reasonable care which requires owner sand operators of recreational areas, to protect the public from foreseeable risks of harm. But the law in New York is equally clear and observes the maxim that landowners ,are not insurer of the safety of those using their property for recreational purposes, and the mere happening of an accident does not render a landowner liable.
The first concept that often comes up in sporting or recreational activity injuries is the assumption of risk doctrine. Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity. In other words, tisks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation, like physical contact in football or being hit by a ball in baseball. In these cases there is no obligation to warn of hazards associated with activities, which are obvious. When a person assumes the risk of participating in a sporting event, the landowner is relieved of legal duty to the participants; and cannot be charged with negligence. As long as the other person’s conduct does not unreasonably increase the risks assumed by the plaintiff, the landowner will be shielded by the doctrine of primary assumption of risk. The doctrine also has been extended to the condition of the playing surface. If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport. In other words, If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine of assumption of risk applies.
But this doctrine does have limits. The Courts have held that it is not sufficient for a defendant to show that the plaintiff was engaged in some form of leisure activity at the time of the accident. If such a showing were sufficient, the doctrine of primary assumption of risk could be applied to individuals who, for example, are out for a sightseeing drive in an automobile or on a motorcycle, or are jogging, walking, or inline roller skating for exercise, and would absolve municipalities, landowners, drivers, and other potential defendants of all liability for negligently creating risks that might be considered inherent in such leisure activities. In one case the Court held that the plaintiffs, who were injured while riding their bicycles on paved pathways in public parks, ” ‘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 they participated in the activity of bicycling In another case the Court held that the assumption of risk did not apply to a plaintiff who was injured when his bicycle struck a raised concrete mound on a public roadway, even though the plaintiff, like the plaintiff in the instant case, was “an avid bicyclist” and was participating in “a noncompetitive, recreational bicycle ride with about eight or nine other riders”
These decisions recognize that riding a bicycle on a paved public roadway normally does not constitute a sporting activity for purposes of applying the primary assumption of risk doctrine. By contrast, mountain biking, and other forms of off-road bicycle riding, have been classified as sporting activity. In other cases, the Courts have held that merely by riding 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 does not consents to the negligent maintenance of such roadways by a municipality or a contractor. Our New York bicycle accident lawyers have continued to fight for those who are injured in recreational activities because of another’s negligence.
The deaths of two pedestrians in Central Park over the past few months, both hit by bicyclists, has cast a dark shadow over one of the most popular recreational roads in the world. Our New York City bicycle accident lawyers have handled numerous cases of bicyclists injured in car and truck accidents,
On September 18, 2014 a married mother of two was fatally struck by a 31-year-old Jason Marshall, a bicyclist, apparently traveling in excess of the 25 mph speed limit in Central Park. When Marshall swerved to avoid a group of pedestrians, he allegedly screamed “Get out of the way!” before colliding with Jill Tarlov, 59, the victim. Shortly after arriving at New York Presbyterian Hospital/Cornell Medical Center, doctors pronounced Ms. Tarlov brain dead. Three days later she died. Mr. Marshall, admitted during questioning that he was in the car lane, not the bike lane, when he struck Ms. Tarlov, although it is unclear who had the right of way at the time, however, motorists and bicyclists always have a responsibility to keep a proper lookout and avoid colliding with pedestrians and other bicyclists.
This was the second well-publicized death involving bicyclists in Central Park over the last few months. On August 3 of this year, a 17-year-old cyclist struck 75-year-old Irving Schacter, who was jogging near 72nd Street on the east park loop. After suffering head trauma, Mr. Schacter was taken to New York Presbyterian Hospital and was dead within two days.
Mr. Marshall stated that the accident was “unavoidable.” In personal injury law, whether or not an injury is foreseeable is a key element for any negligence claim. Of course, Mr. Marshall’s assertion that the accident itself was unavoidable does not mean that the consequences of the accident were equally unavoidable. Also, whehter something was unavoidable is often a question for a jury, notwithstanding a defendants self serving assertions, especially where the accident’s unavoidability was caused by the defendant’s acting irresponsibly in the first place. It seems clear that any person operating a bicycle in a heavily-trafficked area, should do so with care so as to lessen the harm of any possible accident, even if the accident itself is unavoidable. According to the New York Times, the NYPD has already issued over 450 moving violations to bicyclists so far this year. In 2014, only 151 summonses were issued.
While some of the tabloid newspapers would have you believe that New York roads are run by overzealous bicyclists, in reality bicyclists, too, are at great risk on the New York City roads. Most bicycle-related accidents in New York involve some sort of contact with a motor vehicle that makes an unexpected left turn in the bicycle lane or fails to yield the right-of-way and share the road, thus forcing cyclists into a collision off the road. But other factors come into play, such as defective roads, poor maintenance, impaired visibility, debris, even parked cars opening their doors in the bicyclists’ path.
Furthermore, juries are sympathetic to bicyclists, and recent settlements include a $8.57 million verdict for a 36-year old bicyclist who was injured after being hit by a bus; $5,5 million on behalf of a bicyclist struck by a NYPD car (which was pursuing him); and $5,000,000 for the widow of a doctor who was hit and killed by a NYPD tow truck.
Ultimately, however all people on the road have a duty observe the New York State Vehicle and Traffic Laws.
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