The doctrine of primary assumption of risk is still very much the law in New York for skiers and golfers – but perhaps not for leisure bike riders. A New York appeals court has ruled last month that the doctrine of primary assumption of risk bars a claim filed on behalf of a teenage skier who broke his tibia trying to slide along a rail on the Whiteface Mountain ski area.


leisurebiking.jpgMartin was skiing with friends at the Lower Valley Terrain Park at Whiteface Mountain, which is operated by the New York State Olympic Regional Development Authority, when he was injured in February 2005. At terrain parks, skiers engage in freestyle maneuvers, such as rail sliding, as opposed to the steep slopes where skiers ride downhill following trails.
As a self-described expert skier with 13 years’ experience, Brian W. Martin, 17, was well aware of the risks associated with rail sliding and had acknowledged falling before while attempting to execute a rail maneuver, an Appellate Division, 3rd Department, panel ruled last month in Martin v. State of New York, 505999.
Martin and his parents argued that the rail posed a concealed danger to skiers because it was not “skirted,” meaning its vertical support bars were not covered or cushioned. Martin broke his tibia when his left leg hit one of the supports after he fell from the rail.
But a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the state’s obligation to Martin was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.
“If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendants has performed its duty,” Justice Thomas E. Mercure wrote for the 5-0 court, citing Turcotte v. Fell, 68 NY2d 439 (1986), Morgan v. State of New York, 90 NY2d 472 (1997) and other cases.
As to the lack of skirting on the rail, the judges held that video submitted by the Martins showed that nothing prevented Martin from inspecting the rail before trying to slide on it and that “even a cursory glance” would have indicated to him that there was no skirting. A snow-covered ramp led up to the rail to give skiers the necessary lift to land onto the rail.
Last month, a divided 2nd Department panel determined that holding a golfer liable for not yelling “fore” before his shanked shot blinded a fellow golfer in one eye is “inimical” to the rationale underlying the doctrine, and counter to the public policy goal behind the doctrine of encouraging free participation in sporting and recreational activities.
But, drawing a distinction between “sporting” and “leisure” activities, a Brooklyn-based appellate court has refused to dismiss a lawsuit filed by an avid Long Island bicyclist who was injured in an accident precipitated by roadway repairs.
The Appellate Division, 2nd Department, in Cotty v. Southhampton, 2007-08536, declined to apply the assumption-of-risk doctrine as a matter of law and ruled unanimously that the negligence action of Karen Cotty could proceed.
“[I]t cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor,” Justice Peter B. Skelos wrote for the court. “Adopting such a rule could have the arbitrary effect of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of the risk as expansively.”
Cotty was among club members who gathered at a local bicycle shop on weekends for long-distance rides. On July 27, 2002, she was the last rider in one of several groups of eight on Deerfield Road in Southampton during a 72-mile ride. Cotty had previously ridden on the road approximately 20 to 30 times, as recently as two to four weeks before the accident, and was aware of construction in the area.
Beginning on July 24, 2002, CAC Contracting Corp., under a contract with the Suffolk County Water Authority, had been replacing the asphalt in a trench that had been dug along the edge of the road to install a conduit for a water main. On the day of the accident, only one of two planned layers of asphalt had been laid, leaving a “lip” approximately one inch deep parallel to the road, where the pre-existing roadway and the newly paved section met.
As they approached the lip, the bicyclists, traveling at a maximum speed of 17 to 18 miles an hour, began a “hopping” maneuver. However, rider Peter Deutsch’s attempt to get over the obstacle went awry and he fell in the path of Cotty, who was 1 1/2 wheel lengths behind him. Trying to avoid Deutsch, Cotty swerved and slid into the roadway, where she collided with an oncoming car.
Cotty, who was airlifted from the scene and spent some time in the hospital, sued the Town of Southampton, the water authority and the contracting company for $250,000. She did not file a claim against Deutsch, but the authority impleaded him.
All of the defendants argued that Cotty’s voluntary participation in biking and assumption of the risk inherent in that activity relieved them of any duty to her. Gluck, who is himself a bicyclist, argued that the road conditions had created “an extraordinary risk,” one that she could not have anticipated.
Suffolk County Supreme Court Justice Robert W. Doyle declined to grant summary judgment, and the defendants appealed to the 2nd Department, where some judges, at least initially, expressed skepticism about Cotty’s case.
In determining whether Cotty had subjected itself to the doctrine, Skelos said the court had to consider whether she had been subjected to a “sporting activity.” And he said it was not sufficient to show the defendant was engaged in some form of “leisure activity” at the time of the accident.
If that were so, he observed, the doctrine could be applied to such everyday activities as a sightseeing drive in an automobile or motorcycle, or jogging, walking and inline skating for exercise. Further, he noted that “the doctrine is not designed to relieve a municipality of its duty to maintain the roadways in a safe condition.”
He conceded that the distinction between sport and leisure was an “elusive” one but added that it was “important to draw that line” to avoid confusion with the former doctrine of contributory negligence in which a plaintiff’s own negligence barred recovery.

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