Claim seeking damages for injuries sustained in a bicycle accident due to the State's alleged failure to keep foliage and brush from obstructing visibility while traversing a curve was dismissed after trial. The Court found that the claimant assumed the open and obvious risks presented by the curve in the bicycle path under the primary assumption of risk doctrine
|Claimant short name:||MONACO|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Anderson, Moschetti & Taffany, PLLC
By: Ingrid A. Effman, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Anthony Rotondi, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 27, 2020|
|See also (multicaptioned case)|
On July 6, 2017 the claimant and her husband decided to go for a ride on their bicycles. The day was sunny and they drove to a neighborhood in the City of Saratoga Springs, New York, where they intended to access the city's Railroad Run bike and jogging path. They entered onto the bike path and began to travel a route which they took two to three times per week, a two and one half hour ride of approximately 28 miles. Following their custom they took the Railroad Run bike path to a point where they entered the Saratoga Spa State Park. Continuing on their customary route through the state park, they proceeded in a southerly direction through an open straightaway area in the vicinity of a tree farm which runs parallel to Route 9. Both the claimant and her husband testified that as a result of their multiple weekly rides within the park they were aware that the straight portion of the path near the tree farm entered a wooded area which they described as containing "[t]wists and turns throughout" (Tr. 94). They were also aware that within the wooded area was a sharp left curve described as a blind curve at trial because trees, bushes and brambles did not permit persons approaching in either direction to see through or around the curve. Given this awareness it was their custom to each ring the bells mounted on their respective bicycles "profusely" as they approached and traveled through the sharp left turn in order to warn individuals approaching from the opposite direction of their presence. In addition, it was the claimant's individual practice to call "I'm coming, I'm coming" before entering and while transiting through the curve (Tr. 14, 94).
Upon completing the straight portion of the bike path and entering the wooded area claimant's husband was ahead of her and was first to approach the sharp left turn. As was his custom, claimant's husband began ringing the bell on his bicycle approximately 30 to 40 yards prior to entering the left-hand curve. As he approached he was unable to view the approach of northbound joggers or bicyclists due to the thick brush and bramble filling the inside portion of the curve. Claimant's husband was riding his bicycle on the right side of the bike path and continued to ring his bell as he rode his bike through the curve. As he began to exit the curve he observed a northbound bicyclist on the left side of the path about to enter the curve and verbally warned him that the claimant was behind him.
The claimant testified that she began ringing her bell "[n]onstop" beginning at the point where she entered the woods (Tr. 95). As she approached the curve she began calling "I'm coming, I'm coming", and continued to call "I'm coming" while transiting through the curve (Tr. 97). According to her testimony, she attempted to look through the brush on the left side of the path to observe anyone proceeding in a northbound direction but was unable to see through the brush and bramble. While still ringing her bell and calling "I'm coming, I'm coming" she entered the curve on the right side of the bike path (Tr. 94). As she continued towards the apex of the curve she was confronted by a northbound bicyclist in the center of the lane who she first observed when they were one foot apart. While claimant had begun applying her brakes at the point where she entered the curve, when the northbound bicyclist suddenly appeared in the middle of the lane she applied her hand brakes, went over her handlebars and came to rest on her back.
After safely completing the left hand curve, claimant's husband could not see his wife or hear her bell ringing. He turned around and proceeded in a northbound direction through the curve where he observed his wife, on her back, lying half on and half off the asphalt surface of the path. Claimant was screaming in pain and her husband immediately called 9-1-1. Although the northbound bicyclist stopped following claimant's accident, claimant's husband did not speak to the bicyclist nor did he obtain any personal information. Park Police were contacted and arrived at the scene and the claimant was taken to the hospital.
Both the claimant and her husband agreed that they were familiar with the left curve within the wooded area where claimant was injured, claimant's husband agreeing at trial that they had ridden the same path as part of their customary route "for years" (Tr. 42). Both testified that there were no lane markings on the bike path and no warning signs were posted prior to the curve warning northbound and southbound users of the potential danger posed by what claimant and her husband referred to as a blind curve. However, both also testified that given their long familiarity with both the Spa State Park bike path and the particular curve where claimant's injury occurred, neither required warning signs to know that it was not possible to view traffic coming through the curve from the opposite direction. Exhibits 2 through 8 provide views from the perspective of southbound traffic approaching the curve. The northbound approach is depicted in Exhibit 9.
New York State Park Police Officer Donald Lavarge testified that he was dispatched to the scene of claimant's accident following receipt of a 9-1-1 call by the Saratoga Springs Police Department. He entered the bike path from the East-West Road located south of the sharp curve where claimant was injured and proceeded in a northbound direction until he came upon the claimant, who was laying on the ground, as EMS personnel also arrived at the scene. Officer Lavarge inspected claimant's and her husband's bicycles, and determined that both were equipped with a bell or sounding device. He then interviewed the claimant and her husband and inspected both the northbound and southbound approaches to the curve. In describing his observations he testified "looking northbound, slightly south of the curve where Mrs. Monaco fell, you could not see a person or bicycle approaching, only up to the point of them actually entering the curve, and at that point, there was maybe feet before you could actually see the person" (Tr. 77). He stated "there was very heavy brush, and that's what hindered the visibility" (Tr. 78). In an incident report prepared in response to the claimant's accident, Officer Lavarge states "they were at a point where there is a fairly sharp curve on the pavement and sounded their bells. The curve is almost completely blind to patrons meeting from both directions" (claimant's Exhibit 1). Reviewing Exhibits 2 through 8, photographs depicting the southbound approach to the curve, the witness testified that the entire area on the left side of the path at the curve contains "significantly more underbrush, bushes and -- and things like that" than is shown in the photographs, which were taken by the claimant's husband subsequent to her accident (Tr. 80). He then reviewed Exhibit 9, a photograph depicting the northbound approach to the curve, and testified that thick brush adjoining the path on the right-hand side prevented a view of southbound traffic approaching the curve. According to the witness, the view available to the northbound traffic was "almost completely obstructed with underbrush" (Tr. 81). Officer Lavarge did not observe any signs warning individuals of curves ahead, there were no signs directing individuals to keep right while using the bike path and there was no white line to indicate separate tracks for northbound and southbound traffic. He related that while he was conducting his investigation of the scene, he observed a bicyclist approaching the curve traveling southbound who "almost collided with me, because of that lack of visibility" (Tr. 83).
On or about July 12, 2017 Officer Lavarge spoke to Michael Greenslade, the Spa State Park Manager, and informed him of the claimant's accident. Mr. Greenslade indicated he was aware there was an issue with regard to that particular curve, stated that there had previously been signs present but they had been taken down, and indicated that he would consider Officer Lavarge's suggestion that mirrors be posted on both approaches to the curve.
On cross-examination Officer Lavarge confirmed that he had not been called to an accident at the same location prior to or following claimant's accident on July 6, 2017. He testified that approximately two feet on each side of the path was clear of foliage and he observed no debris or defects in the pavement.
Michael J. Greenslade was the park manager at the Saratoga Spa State Park from 2007 until his retirement in October 2018. Several days following the accident Mr. Greenslade was advised by State Park Police Officer Lavarge of the claimant's accident. Officer Lavarge related the existence of a sharp turn at the location of the accident and advised that perhaps mirrors could be used to provide users of the path at that location better visibility of oncoming traffic. Mr. Greenslade went to the wooded area where he had been advised the accident occurred but was unable to determine which of several curves was involved. He testified that Saratoga Spa State Park maintenance crews were responsible for maintaining both the bike path and areas adjacent thereto. Maintenance crews trim brush within the wooded area where claimant's accident had occurred "on occasion" but there was no formal inspection schedule, no guidelines regarding the frequency with which maintenance, in particular the trimming of trees and bushes, should be undertaken and work orders were not used to record the nature and frequency of work actually performed (Tr. 61).
Mr. Greenslade reviewed Exhibits 2 through 8 and Exhibit 9 and agreed that it was important to keep trees and bushes on the left side of the sharp curve where the claimant's accident occurred trimmed to ensure that both northbound and southbound traffic had adequate visibility of persons proceeding in the opposite direction. He also testified that prior to the claimant's accident signs urging caution and stating "curves ahead" were posted at both the southern and northern entrances to the wooded area where claimant's accident occurred (Tr. 54). Those signs had been removed by members of the public and thrown in the woods on two occasions prior to July 6, 2017, and Mr. Greenslade was unsure whether the signs were up on the day of claimant's accident. He agreed that no mirrors were mounted and no lane markings existed on the asphalt surface of the bike path prior to the date claimant was injured. He testified that the bike path opened in either 2014 or 2015 and he was not aware of any other bicycle accidents at the particular curve where claimant was injured prior to the date of her accident.
The law is settled that "assumption of risk is not an absolute defense but a measure of the defendants' duty of care" (Turcotte v Fell, 68 NY2d 432, 439 ; see also Custodi v Town of Amherst, 20 NY3d 83 ; Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395  ). Viewed in this light, the operator of a sporting or recreational venue will be relieved of liability "when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Morgan v State of New York, 90 NY2d 471, 484 ; Turcotte v Fell, 68 NY2d at 439 [no liability where risks were "fully comprehended or perfectly obvious"]). Thus, risks that are "commonly encountered or inherent in a sport . . . are risks [for] which various participants are legally deemed to have accepted personal responsibility " (Bukowski v Clarkson Univ., 19 NY3d 353, 356  [internal quotation marks and citation omitted]).
The Court of Appeals has clarified that although the primary assumption of risk doctrine survived the adoption of comparative negligence (CPLR 1411), its application is generally restricted to "cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic or recreative activities, or athletic and recreational pursuits that take place at designated venues" (Custodi v Town of Amherst, 20 NY3d at 89). The justification for the continuing vitality of the doctrine is the fact that such activities "possess enormous social value, even while they involve significantly heightened risks" and the prohibitive liability that would otherwise arise without its application (Trupia v Lake George Cent. School Dist., 14 NY3d at 395). Courts have circumscribed application of the doctrine so as not to displace principles of comparative negligence or "create an unwarranted diminution of the general duty of landowners, both public and private, to maintain their premises in a reasonably safe condition" (Custodi v Town of Amherst, 20 NY3d at 980). In Trupia, for example, the Court of Appeals found the injury-producing "horseplay" at issue unworthy of protection through application of the primary assumption of risk doctrine because it had none of the socially redeeming qualities of sponsored sport or recreative activities (Trupia v Lake George Cent. School Dist., 14 NY3d at 396). In Custodi, the Court of Appeals found the doctrine inapplicable to shield property owners from liability for injuries sustained by a rollerblader due to obvious defects in a public road and abutting private sidewalk. In so holding, the Court distinguished the duty of property owners to maintain their premises in a reasonably safe condition from the duty of a sport or recreative owner to make conditions as safe as they appear to be. In the latter situation, the social value of sport or recreative activities fully justifies application of the primary assumption of risk doctrine, whereas application of the doctrine in the former situation would displace principles of comparative negligence and diminish the general duty of landowners to maintain their premises in a reasonably safe condition.
Here, the claimant's bicycle accident occurred on a State-owned and maintained bike path, and application of the doctrine in this context is amply justified by the socially redeeming qualities which inure in the sport of cycling. Moreover, because the accident occurred in a sport venue for bicyclists, application of the doctrine would not displace principles of comparative negligence or diminish the general duty of landowners to maintain their premises in a reasonably safe condition (cf Custodi v Town of Amherst, supra; DeMarco v DeMarco, 154 AD3d 1226 [3d Dept 2017] [primary assumption of risk was inapplicable to accident on trampoline in a privately owned back yard]). Accordingly, the Court will now turn to the issue of whether or not the defendant is free from liability under the primary assumption of risk doctrine.
The Court of Appeals has made clear that "in assessing whether a defendant has violated a duty of care . . . the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Morgan v State of New York, 90 NY2d at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 ; see also Anand v Kapoor, 15 NY3d 946  [although a plaintiff does not assume the risk of reckless or intentional conduct, golfer's failure to warn of his intent to strike ball did not unreasonably increase risk]). Here, like the facts in Gortych v Brenner (83 AD3d 497 [1st Dept 2011]), the blind curve in the bike path did not constitute a defective condition that unreasonably heightened the risk of harm assumed by cyclists. The blind curve was not concealed but was open and obvious to all users of the bike path. Indeed, claimant was admittedly aware of the blind curve by virtue of her numerous bike rides through this same area.(1) She testified at trial that upon nearing the subject curve she customarily rang the bell on her bike and shouted to warn of her presence, a custom she followed on the day of her accident. That the curve in the bike path could have been made safer had brush been removed and lane markings been in place does not preclude application of the assumption of risk doctrine because the doctrine encompasses risks which not only inhere in the sport generally, but also those "involving less than optimal conditions" (Bukowski v Clarkson Univ., 19 NY3d at 356). This is because the doctrine depends not upon a determination that the conditions were as safe as they could be, but upon a determination that the conditions were as safe as they appeared to be. Thus, where the injury producing conditions are open and obvious and the risks readily appreciable, application of the assumption of risk doctrine is not foreclosed by the fact that the conditions could have been made safer (Bukowski v Clarkson Univ., 19 NY3d at 356; Martin v State of New York, 64 AD3d 62, 64 [3d Dept 2009], lv denied 13 NY3d 706 ). Indeed, for the purposes of applying the assumption of risk doctrine "it is irrelevant that a defendant 'could feasibly have provided safer conditions' " (Martin v State of New York, 64 AD3d at 64; Simoneau v State of New York, 248 AD2d 865, 866-867 [3d Dept 1998]). The blind curve in the bike path here was not concealed, claimant was admittedly familiar with it, and it was open and obvious to all users of the bike path. Accordingly, the Court finds that claimant failed to establish, by a preponderance of the credible evidence, that defendant was negligent in the care and maintenance of the bike path. Considering claimant's familiarity with the area and the open and obvious nature of the curve, the Court finds defendant fulfilled its duty "to make the conditions as safe as they appear[ed] to be" (see Turcotte v Fell, 68 NY2d at 439).
Based on the foregoing, the claim is dismissed.Let judgment be entered accordingly.
May 27, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Claimant's admitted familiarity with the condition of the curve renders her allegation that the defendant was negligent in failing to provide warnings meritless (see e.g., Tkeshelashvili v State of New York, 18 NY3d 199, 205-206  ["Any warning would have only alerted (diver) to what he already knew about the approximate water level in the (lake) . . . as a result of his familiarity with the depth of the lake's water."]).