Tour de Désastre

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Rivera v. Glen Oaks Village Owner’s, Inc. (New York)
(Off Road Bicyclist Crashes Into Hole in Trail; Recreational Use Statute Immunized Landowner; Assumption of the Risk Also a Viable Defense)

The plaintiff and two friends were riding their bikes on a roadway. They turned off the road and onto a dirt trail located in a two-acre wooded area, which was part of a large residential cooperative community. The trail was approximately 500 feet long and 10 feet wide, and the plaintiff described it as “bumpy.” After traveling about 40 feet on the trail, the plaintiff came upon a hole in the ground, approximately two feet wide and three feet deep. Unable to avoid the hole, the front wheel of the plaintiff’s bicycle went into the hole, causing him to be thrown over the bicycle’s handlebars and into the hole. Plaintiff filed a lawsuit against the landowner based upon the alleged dangerous condition on the premises. The defendant filed a motion for summary judgment based upon New York’s “recreational use statute.” The motion was denied, and the defendant appealed.

New York General Obligations Law § 9-103, commonly referred to as the “recreational use statute,” provides that “an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for,” among other things, “bicycle riding . . . or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such [a] purpose.” The “sole purpose” of the statute is “to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities,” such as bicycle riding. The statute applies when (1) the plaintiff is engaged in one of the activities identified in § 9-103 and (2) the plaintiff is recreating on land suitable for that activity.

The court noted that it was undisputed that the plaintiff was engaged in bicycle riding, an activity included within § 9-103, when he was injured. The question was then whether or not the property is the type “which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation.” Ultimately, the court concluded that a dirt trail measuring 500 feet long and 10 feet wide and located within a wooded area that is undeveloped and has not been designated for any other use is appropriate for bicycle riding particularly in a large urban setting where open space is limited.

The court stated that a substantial indicator that property is physically conducive to the particular activity is whether recreationists have used the property for that activity in the past. Such past use by participants in the sport would manifest the fact that the property is physically conducive to it. The defendant had offered affidavits from three residents about prior use of the trail by bicyclists, but the defendant failed to disclose the identities of the witnesses. Therefore, the court held that the trial court’s refusal to consider the affidavits was reasonable. Nonetheless, the court said that the use of the trail by the plaintiff’s friends on the day in question, along with its physical characteristics, established that it was physically conducive for bicycling.

The plaintiff’s contention that the dirt trail was unsuitable for bicycling because of the presence of large holes, mounds of dirt, and other allegedly dangerous conditions was without merit. As the court explained, the presence or absence of a dangerous condition is not the benchmark for determining suitability. Therefore, the court concluded that the defendant was entitled to immunity pursuant to § 9-103.

Alternatively, the court stated that the defendant’s motion for summary judgment dismissing the complaint should have been granted under the doctrine of primary assumption of risk. By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. The defendant established that the plaintiff was an experienced bicyclist. Citing prior case law, the court said that the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces. The plaintiff assumed that risk when he rode his bicycle on the dirt trail.

NOTE: The application of the recreational use statute, particularly the second prong of the test (i.e., whether the land is suitable for the activity in question) appears to be a bit mechanical and cumbersome. The bottom line is that the property was open for public use and the plaintiff was engaged in a recreational activity on the premises. Analyzing the suitability of the premises can be a heavy factual determination that may result in some cases unnecessarily proceeding to trial for consideration by the jury. In light of the mechanical application of the statute, the assumption of the risk defense may tend to be stronger in these types of circumstances.

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