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William C. Altreuter
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Friday, May 29, 2009

The Second Department declines to apply the doctrine of primary assumption of risk in a case where the plaintiff was injured while riding a bicycle on a paved public roadway. The plaintiff was the last bicyclist in one of several groups of eight riders cycling on a 72-mile ride. The road "was not perfectly smooth," and contained potholes. The plaintiff was injured when the rider in front of her fell into her path. She swerved and slid into the road where she collided with an oncoming car.

Assumption of risk, a complete defense, is a concept that is simply a mess in New York. As a general proposition New York is a comparative negligence jurisdiction-- fault is assessed on a proportional basis. For some activities, notably sports, but some others as well, the court can find that that the risks inherent in the activity are "known, apparent, natural, or reasonably foreseeable consequences of... participation", and therefore there is no duty of care owed to the participant by any third party. Well known examples of people who have been screwed by this theory include Elliot Maddox, who wrecked his knee when he tripped on a drain in Shea Stadium's outfield; and Ron Turcotte, who was rendered paraplegic when he was thrown from his mount after being fouled by another rider.

The decisional law in this area has always had an ad hoc quality in my view. Sometimes the courts will find that there was some sort of defect in the premises that takes the occurrence out of assumption of risk, but drains in the outfield or improperly watered, "cuppy" tracks don't qualify. Apparently riding a bicycle doesn't qualify, at least in this context, which is good news, but hardly something that anyone could have felt comfortable predicting. It is not clear to me if the doctrine would apply had the riders been participating in a race, rather than an organized tour. Should it make a difference if a pedestrian trips and falls on a roadway defect if that pedestrian is walking to work or running in a 5k? What if the 5k participant is a Kenyan, competing for prize money? It all seems arbitrary to me, and that is not something that a complete defense to liability should be.

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