This was originally published on the SGR Blog.
Was New York Liable For the Rider’s Injury?
This blog post relates to an action that arose after a recreational rider was injured in a fall on a bike path in a New York State park that was claimed to have been negligently maintained. My next blog post relates to a proceeding that arose, on similar facts, after a recreational rider was injured in a fall on a bike path in a Westchester County park.
Victor Alfieri alleged that, on August 15, 2016, he was injured at Rockland Lake State Park after the wheel of his bicycle got caught on broken asphalt on the bike path, and he fell to the ground as a result of the State of New York’s negligent maintenance of the bike path. A virtual trial on the issue of liability was held on May 4, 2021.
The parties stipulated to admission of certain exhibits into evidence. Alfieri testified on his own behalf. Park Manager Christian Nielsen testified for both parties. The State called Investigator Adrienne DeGaetano as a witness.
Alfieri, testified that on August 15, 2016, at approximately 7:30 p.m., he had a bicycle accident on the bike path at the Park. At the time of the accident, the weather was clear, and according to him it was still light out. The wheel of his bicycle got caught in some broken-up asphalt at the extreme left side of an asphalt patch approximately 15 feet long and 2½ to 3 inches high. The patch, which Alfieri described as an asphalt berm, spanned the width of the bike path, had cracks in it, and the ends of the patch were broken up. He testified that there were a lot of “these” patches around Rockland Lake.
Alfieri further testified that he was familiar with the bike path as he had walked or biked the path at least three times a week for the last 15 years. He was aware of the asphalt patch and its broken condition for the past year, but he did not report it to Park staff. On the day of the accident, as he approached the asphalt patch, he saw two people walking in the middle of the path toward him. He could have stopped his bicycle, but he steered to the left to avoid them, which is what he claims cyclists usually do. At the time of his fall, he was focused on the people and not on the ground.
After falling, Alfieri testified that he lay on the ground for at least 45 minutes before help arrived. His cycling partner arrived first, then the Park Police and an ambulance. He does not know whether the people he was avoiding on the path called 911. He was having trouble making a call on his cellphone because his hands were numb and tingling. He denied calling 911, then conceded that he had made the call after hearing his voice on the 911 recording. That call was made at 8:28 p.m. An earlier call to 911 was made at 8:12 p.m.
Christian Nielsen, the Park Manager, was in charge of overseeing day-to-day maintenance at the Park. Prior to the accident, Nielsen inspected the path two-to-three times a week checking for hazardous conditions. It was customary practice for Park personnel to report any hazardous conditions they saw. The Park did not keep a record of hazardous conditions reported by employees, nor did they keep a record of repairs. He explained that the asphalt patch depicted in the photographs was a patch on the pavement over a drainage pipe with “minor sections” of erosion. Nielsen testified that the pavement there was worn — something to keep an eye on — but he did not consider the patch a hazard. There were no reports of accidents at that location or complaints made about the condition of the asphalt. He further testified that, at 7:30 p.m. in August, there would be about 50 people in the park, and by 8:00 p.m. that number would drop because it would be getting dark and there was no artificial lighting in the area.
The New York State Incident Report showed that the accident was reported at 8:20 p.m. The report noted that Alfieri lacerated his left cheek in a fall off his bicycle. It was noted in the Patron Accident Supplemental Report prepared by Park Police Officer Deliane Lessard that, at 8:30 p.m., when he arrived at the scene, the weather was “clear,” visibility was “excellent,” and the pavement was “dry”. In the report under “Lighting” it was noted that it was “night” and “unlighted”.
Adrienne DeGaetano testified that she worked as an Investigative Specialist 1 with the New York State Attorney General’s Office. She reviewed the post-accident photographs of the asphalt patch and surrounding area taken on August 15, 2018, during her investigation conducted two years after the accident. The pictures showed orange lines and the word “bump” painted on both sides of the patch. Investigator DeGaetano testified that she understood the markings to be a warning to the public of a hazardous condition. She also testified about her observance of lighting conditions during her investigation. Alfieri’s attorney objected, and the Court stated it would allow the testimony subject to weight. The investigator described the light at 7:15 p.m. as “getting dark,” and at 7:30 p.m. as “even darker.” By 8:00 p.m., it was dark and she could not see the bike path. DeGaetano concluded that the tree cover shown in those pictures of the scene was the same as the tree cover shown in her photographs taken two years later. The Court did not give much weight to that testimony, given the passage of time, and the difficulty of knowing if the tree cover and other conditions were the same since Alfieri’s own pictures showed several tree stumps in the area.
Alfieri had the burden of proving the State’s liability by a fair preponderance of the credible evidence. The trial court, in its capacity as trier of fact, determined the testimony and evidence that was reliable and the weight to be given to each piece of evidence.
Alfieri argued that the condition of the asphalt patch was a dangerous condition; the State had actual notice of the condition; and failed to fix it within a reasonable period of time. The State argued that Alfieri assumed the risk of falling by bicycling in the waning light and choosing to ride over broken-up asphalt that he knew was present.
The Court first addressed the State’s affirmative defense of assumption of the risk, because if Alfieri was a participant in a qualified activity, aware of the inherent risks, the defense applied and the State’s duty of care had been met as long as the condition of the bicycle path was as safe as it appeared to be. The question was whether the assumption of the risk defense even applied to Alfieri’s riding his bicycle on the park’s asphalt covered bike path.
In the era of comparative negligence, the doctrine of assumption of risk as an absolute defense with no liability attaching to defendant has survived in the realm of sporting or recreational activities — what has been termed the primary assumption of risk. The doctrine of primary assumption of risk operates to bar recovery if the risks of the activity are fully comprehended or perfectly obvious, claimant has consented to them, and defendant has performed its duty. The Court’s analysis began with first determining whether Alfieri’s activity was a “qualified activity”.
The Court of Appeals had narrowed the types of activities to which the primary assumption of risk doctrine applied. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreational activities, or athletic and recreational pursuits that take place at designated venues. Alfieri was not engaging in a sporting event or a sponsored activity. The evidence established that he was engaging in a pursuit that was both recreational and athletic. The question turned on whether Alfieri was engaged in an athletic or recreational activity at a designated venue.
Alfieri was riding his bicycle on a paved “bike path” around Rockland Lake. Both he and the Park Manager identified the area of the accident as a “bike path” in their testimony. And the summary in the Incident Report states that Alfieri fell off his bike “on the bike path”. The bike path was not a public road. Here, although the bike path was also used by pedestrians for walking, it was clearly a venue used specifically for biking. So the Court found that the bike path was a “designated venue” for bicycling.
By voluntarily participating in the activity of bicycling around Rockland Lake on the bike path, Alfieri consented to those commonly appreciated risks that were inherent in and arose out of the nature of the sport generally and flowed from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty by making the conditions as safe as they appear to be. The assumption doctrine applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on.
Alfieri’s recollection of the events on the evening of the accident was either poor or he was not being entirely candid. He denied calling 911, which was easily disproved by playing the 911 tape during his cross-examination. He testified that two pedestrians were present when he fell at 7:30 p.m., but the first 911 call was not made until 8:12 p.m. Nevertheless, Alfieri was forthright in testifying that he was familiar with the asphalt patch on the bike path which had been there for about a year. That was relatively consistent with the testimony of the Park Manager. Alfieri was also quite adamant that the usual way in which cyclists avoid pedestrians was to steer around them which he attempted to do in this case. The testimony that he was familiar with this bike path and its asphalt patches, having ridden his bicycle or walked the path three times per week for the past 15 years, lead the Court to conclude that the risks involved in cycling over such open and obvious rough and uneven surfaces, on which a bicycle wheel could catch, or the rider go off balance and fall, were inherent risks in the activity and reasonably foreseeable. The risk of striking a hole and falling was an inherent risk in riding a bicycle on most outdoor surfaces.
The Court found that the State established with prima facie evidence that the doctrine of primary assumption of risk applied to Alfieri in this case. The State of New York, like any other landowner, generally had the duty to maintain its property in a reasonably safe condition taking into account all the circumstances. But that duty was met. Alfieri was an avid bicyclist, with more than a decade of experience on the bike path — a path that was also commonly used by pedestrians, along with his knowledge of the crumbling asphalt, and the readily apparent risks associated with bicycling — the bike path was as safe as it appeared to be. As a result, it was not necessary for the Court to determine whether the condition of the asphalt, of which the State was admittedly aware, constituted a dangerous condition that the State failed to remedy within a reasonable time.
The State of New York was not liable for negligence and Alfieri’s claim was dismissed.