This was originally posted on the SGR Blog.
Was County Liable for the Riders Injury?
My last blog post related 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. This 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.
At approximately 8:00 a.m. on June 16, 2018, Scott Dinhofer had already been riding his triathlon bicycle for two hours or thirty miles. While traveling south on the North County Trailway in the Town of New Castle in Millwood, New York, when his bicycle hit a bump on the Trailway that was shaded by a tree. As a result, the bicycle flipped forward causing Dinhofer to land on the right, back side of his body, and he was transported by ambulance to Westchester County Medical Center.
The Trailway was located in Westchester County and was maintained by the Westchester Department of Parks, Recreation and Conservation.
Dinhofer filed a notice of claim with the County on or about August 24, 2018. Attached to the notice were two map images and four photos, one of which identified the location and defect that purportedly caused his accident. At a hearing held on November 29, 2018 pursuant to General Obligations Law 50-h, Dinhofer testified that he had been bike riding since 1989 and owned a mountain, gravel, road and triathlon bike; he rode three or four days a week on various terrain depending on whether he was training or riding in a group sometimes riding between 30 and 115 miles during a single ride. Since 1997, Dinhofer had been riding the Trailway either alone or with his children and sometimes made weekly runs on the Trailway.
Dinhofer sued alleging the County was negligent in its ownership, operation, control and maintenance of the Trailway and with prior notice that the Trailway was in a dangerous, hazardous and defective condition constituting a trap, nuisance and hazard. And the County failed to repair, back-fill, level or pave that condition which caused Dinhofer to sustain injuries when his triathlon bicycle came into contact with the alleged condition.
The County moved for summary judgment dismissing the complaint. And argued that, as a matter of law, Dinhofer could not establish his claims because his claims were trivial in nature, barred by the primary assumption of risk doctrine and by failure to establish compliance with the County’s prior written notice law.
Section 780.01 of the Westchester County Laws states in pertinent part that:
No civil action shall be maintained against the county … for damages or injuries to person or property sustained in consequences of any… sidewalk being defective, out of repair, unsafe, dangerous or obstructed unless prior written notice of such defective, unsafe, dangerous or obstructed condition, specifying the particular place, was actually given to the Clerk of the Board of Legislators or the Commissioner of Public Works and Transportation and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of or, in the absence of such notice, unless such defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence…
A paved bike path over which the public has a general right of passage is the functional equivalent of a sidewalk or a highway. While the County correctly argued that Dinhofer failed to prove compliance with the County’s prior written notice requirement, the County’s witnesses establish that the County had constructive notice of the bump on the Trailway as far back as 2013 and, except to initiate a capital improvement project to resurface the Trailway, no further action was taken by the County.
Evelio Lopez had been with the County’s Department of Parks, Recreation & Conversation for thirty-one years, of which six years, from 2013 to July 2018, were spent working on the Trailway. Lopez testified that in 2013 he was aware of a bump on the Trailway and that the Parks Department did nothing to warn bicycle riders of the bump prior to June 16, 2018. Lopez described the alleged defect in the Trailway as a “bump in the road” that did not need repair and that he did not view as hazardous because he had seen numerous people ride over it without issue.
David DeLucia was with County’s Parks, Recreation and Conservation since 1982. And served as a Construction Coordinator for the County since February 2019. In his testimony, DeLucia stated that he reviewed the notice of claim and photographs of the condition provided by Dinhofer and had passed the site of the accident, at least once a month, either on a police bike or a road bike for recreation or by foot with his staff putting up signage “for no motorized vehicles”.
DeLucia also testified that there was a capital project in the works since approximately 2015 to resurface the entire Trailway, but believed the bump on the Trailway was a reasonably safe condition for a bicycle, describing it as “small, minor bump.”
The County’s Expert Timothy G. Joganich described the bump as upheaved pavement [that] measured approximately 1 and 1 ½ inches in height at 1 ½ and 3 feet, respectively from its apex. Surface cracking along the apex spanned the full width”.
DeLucia further testified that, although the Trailway had lots of areas with shade, he did not believe the bump presented a hazard that necessitated immediate repair based on his experience in riding over the bump, looking over the bump and standing near the bump. And stated that the County, Parks, Recreation and Conservation believed tree roots were the cause of the bump.
The Court found that the County had constructive notice of the bump in the Trailway prior to June 16, 2018. Thus, Dinhofer’s failure to show compliance with the written notice requirement was not fatal. And the County’s motion for summary judgment on that ground was denied.
As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation.
Here, the County argued that, because the suit arose out of a sporting and/or recreational activity, it was barred by the doctrine of assumption of risk. Claiming that, as an experienced cyclist, familiar with the Trailway from decades of regular use, Dinhofer should have been aware of the general condition of the Trailway and assumed the risks associated with riding his bicycle on that road.
But another Court rejected the notion that a bicycle rider subjected himself or herself to the doctrine of primary assumption of risk noting 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.”
Dinhofer was a noncompetitive recreational bicyclist on June 16, 2018. So the County’s motion for summary judgment on the theory that the action was barred by the doctrine of primary assumption of risk was denied.
Dinhofer testified that, before his bicycle hit the bump on the Trailway, he saw approximately 10-12 people cycling, running, or walking on the road and the bump was shaded by a tree.
The County argued that the alleged condition of the Trailway did not rise to the level of a dangerous condition but rather, was trivial and, by extension, not actionable. And also claimed that the bump on the Trailway would have been clearly visible to Dinhofer at 8:00 a.m. on a clear, sunny morning.
In formulating its argument, the County apparently relied on video footage and a video compilation of video footage of numerous pedestrians and people on bicycles and rollerblades successfully navigating the bump in the Trailway. Dinhofer provided still photographs taken from the video compilation. Although the video footage might show numerous people, of various ages and cycling abilities, successfully navigating the bump, of the two still photographs presented, the accuracy of which was not disputed by the County one was of an adult male and one was of a young girl in the process of falling to the ground where Dinhofer fell.
The County argued that the alleged defect did not, by reason of its location, adverse weather, or lighting conditions, or other relevant circumstances, have any of the characteristics of a trap or snare, and was too trivial to be actionable. But a defendant seeking dismissal of a complaint on the basis that an alleged defect was trivial must make a prima facie showing that the defect was, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed. Only then does the burden shift to the plaintiff to establish an issue of fact that the intrinsic characteristics or the surrounding circumstances magnified the dangers it posed, so that it unreasonably imperiled the safety of a pedestrian.
The Court found that considering the surrounding circumstance of the tree shading, the Trailway was characteristic of a snare or trap that caught Dinofer and, therefore, his action was not trivial. The County’s motion for summary judgment on the ground of the trivial defect doctrine was denied.