Awhile back, we had a discussion regarding who is liable for what during a race. A California Court of Appeal issued an opinion yesterday in an action, Moser v. Ratinoff, where one cyclist collided with another during the Death Valley Double Century in 1999. The court said that the injured cyclist has no remedy against the cyclist that swerved into him, hitting him and causing his injury, because the doctrine of primary assumption of the risk applies to organized, noncompetitive cycling. This doctrine provides that a co-participants in a sport have no duty of care to protect against the risks inherent in a particular sporting activity, absent some reckless or intentional misconduct; however, they due owe a duty not to increase the risk of harm beyond that inherent in the sport. Thus, while Ratinoff's conduct in swerving into Moser may have been negligent, the risk of such negligence was assumed by Moser, and thus no liability attached. Something the think about on your next group ride.
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Re: new law stuff [garth]
[ In reply to ]
But if you think about it, you might be better off riding alone. Thanks for the update.
Re: new law stuff [garth]
[ In reply to ]
Well, at first blush that sounds like a reasonable decision, but what constitutes "reckless" behavior on a bike? If you violate the USAT rule against passing on the right, collide with another biker, and cause him injury, have you been reckless? I applaud the court's unwillingness to spread mere negligence causes of action like road rash across the jurisprudential landscape, but it sounds like they've also muddied the waters considerably.
-Robert
"How wonderful it is that nobody need wait a single moment before starting to improve the world." ~Anne Frank
-Robert
"How wonderful it is that nobody need wait a single moment before starting to improve the world." ~Anne Frank
Re: new law stuff [Robert]
[ In reply to ]
I think California law on co-participant liability is more clear than it might appear from reading that one decision in a vacuum. If you have nothing to do and you care, read Knight v. Jewett and some of the ski cases cited in the Moser decision. They make it clear that you have to be doing something very reckless indeed, something totally outside the pale of what any participant would consider reasonable to be held liable. I haven't read Knight since law school but if I recall, it was a case about a co-ed touch football game during halftime at a superbowl party. The defendant (a guy) stepped on the plaintiff's (a 110 lb girl) finger and messed it up pretty good (it had to be amputated or she lost use of it) and there were even (kind of nebulous) allegations that he was trying to hurt her. Still, the court said "football, even co-ed touch football involves contact and sometimes people get carried away. no liability."
The Moser court also made it clear (again, consistent with earlier California law) that the fact that the defendant broke a rule of the sport (or even a state law) doesn't matter. Several of the ski defendants broke state laws (codifying the skier responsibility code). The defendant in the waterski case violated a section of the harbors and navigation code and the defendant in the Moser case violated the vehicle code. Yet none of the defendants were held liable.
It is crystal clear that the California courts believe that recreational sports are a good thing and that imposing liability against co-participants for anything but the most egregious conduct will chill participation in sports. I think we would all agree with both of those positions. I also agree, however, with what I think is the underlying sentiment in your post, that they could draw the line in a place that provides a little more safety for blameless participants without chilling participation in sports too much. That doesn't mean though that the law is unclear or that Moser muddied the waters.
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Anyone who tells you they're as fast now as they were when they were 18...
sure wasn't very fast when they were 18.
The Moser court also made it clear (again, consistent with earlier California law) that the fact that the defendant broke a rule of the sport (or even a state law) doesn't matter. Several of the ski defendants broke state laws (codifying the skier responsibility code). The defendant in the waterski case violated a section of the harbors and navigation code and the defendant in the Moser case violated the vehicle code. Yet none of the defendants were held liable.
It is crystal clear that the California courts believe that recreational sports are a good thing and that imposing liability against co-participants for anything but the most egregious conduct will chill participation in sports. I think we would all agree with both of those positions. I also agree, however, with what I think is the underlying sentiment in your post, that they could draw the line in a place that provides a little more safety for blameless participants without chilling participation in sports too much. That doesn't mean though that the law is unclear or that Moser muddied the waters.
________________________________________________
Anyone who tells you they're as fast now as they were when they were 18...
sure wasn't very fast when they were 18.
Re: new law stuff [Rich]
[ In reply to ]
Rich: Thanks for that explanation. Yes, I think participation is a good thing, but I gotta' tell you I'm a rule guy. Break the rules, pay the penalty. I agree the difference between reckless conduct and mere negligence is a fuzzy line but the Knight case sounds like it gives almost absolute immunity to the participants for their conduct. I think that goes too far. If you break a state law or a rule of sport and injure someone then I think it should be a jury question whether the conduct was reckless and not merely negligent. To take it away from the jury seems odd, particularly coming from a jurisdiction that is perceived to be, uh, well, to put it politely, "creative". :)
I had some young kid almost run me over passing me in the right lane in the gutter of the road! He knocked me over coming by because he had no room. The kid is brain dead for sure, but if I had been seriously injured I would have wanted to sue him. If we hadn't been going up a steep hill (me 180, him 120) I would have chased him down and given him a tongue lashing. :),
Anyway, interesting case!
-Robert
"How wonderful it is that nobody need wait a single moment before starting to improve the world." ~Anne Frank
I had some young kid almost run me over passing me in the right lane in the gutter of the road! He knocked me over coming by because he had no room. The kid is brain dead for sure, but if I had been seriously injured I would have wanted to sue him. If we hadn't been going up a steep hill (me 180, him 120) I would have chased him down and given him a tongue lashing. :),
Anyway, interesting case!
-Robert
"How wonderful it is that nobody need wait a single moment before starting to improve the world." ~Anne Frank
The way things work
[ In reply to ]
Given the restraint a court has to exercise when issuing an opinion, I thought the Moser court did a pretty good job. In general, a court does (and should, in my opinion) limit its decisions to those questions squarely before it. As Rich pointed out, the opinion does not make any new law, it simply applies an existing doctrine to a new circumstance. In doing so the Court found two things:
1). That organized, noncompetitive cycling is to be considered a sport such that primary assumption of the risk applies; and,
2). That a cyclist in the above context assumes the risk that the cyclist riding beside them may suddenly swerve into them after announcing "I have to come over," causing them to crash.
As for breaking rules governing of an event, this will have little bearing on whether the risk associated with the conduct is assumed or not. A horrible injury resulting from a cut-block during a football game is not compensable, absent some evidence of its recklessness or intent. Another aspect of the Moser decision was that breaking traffic laws, as the offending cyclist did, does not, de jure, trump primary assumption of the risk. This is interesting because, in a normal negligence context, you can prove negligence per se and create a rebutable presumption of breach by using the opposing party's violation of a statute that was intended to prevent the harm suffered if you are of the class of persons that the statute was intended to protect. The Moser court found that despite Ratinoff's violation of the vehicle code designed protect users of public roads, like Moser, such a violation does not abrogate Moser's assumption of the risk, absent a statutory intent to do so.
The million-dollar question is what constitutes recklessness this context? One way to get at that question is to look at the policy underlying primary assumption of the risk. As Rich said, the court has to balance the duty it imposes against the chilling effect that duty may have on the nature of and participation in the sport. If you knew that you could be sued for the injury resulting from you not holding your line in a corner and therefore taking out someone behind you, would you still do a crit? Probably not; at least I wouldn't. I'd there is a good chance I assume this risk. On the other hand, should we be able to sue for the injury resulting from me grabbing another cyclist and pulling them out of the way to make room for me in a pace-line? Probably yes, (though maybe not in a pro peleton). Imposing a duty not to do that sort of thing probably will not discourage many cyclists from racing.
1). That organized, noncompetitive cycling is to be considered a sport such that primary assumption of the risk applies; and,
2). That a cyclist in the above context assumes the risk that the cyclist riding beside them may suddenly swerve into them after announcing "I have to come over," causing them to crash.
As for breaking rules governing of an event, this will have little bearing on whether the risk associated with the conduct is assumed or not. A horrible injury resulting from a cut-block during a football game is not compensable, absent some evidence of its recklessness or intent. Another aspect of the Moser decision was that breaking traffic laws, as the offending cyclist did, does not, de jure, trump primary assumption of the risk. This is interesting because, in a normal negligence context, you can prove negligence per se and create a rebutable presumption of breach by using the opposing party's violation of a statute that was intended to prevent the harm suffered if you are of the class of persons that the statute was intended to protect. The Moser court found that despite Ratinoff's violation of the vehicle code designed protect users of public roads, like Moser, such a violation does not abrogate Moser's assumption of the risk, absent a statutory intent to do so.
The million-dollar question is what constitutes recklessness this context? One way to get at that question is to look at the policy underlying primary assumption of the risk. As Rich said, the court has to balance the duty it imposes against the chilling effect that duty may have on the nature of and participation in the sport. If you knew that you could be sued for the injury resulting from you not holding your line in a corner and therefore taking out someone behind you, would you still do a crit? Probably not; at least I wouldn't. I'd there is a good chance I assume this risk. On the other hand, should we be able to sue for the injury resulting from me grabbing another cyclist and pulling them out of the way to make room for me in a pace-line? Probably yes, (though maybe not in a pro peleton). Imposing a duty not to do that sort of thing probably will not discourage many cyclists from racing.
Garth:
"As for breaking rules governing of an event, this will have little bearing on whether the risk associated with the conduct is assumed or not."
NOT! When I do a race I have a reasonable expectation that others will obey the rules. Why am I assuming the risk of injury if they violate the rule? This is what bothers me. The court is saying that is a risk you assume, i.e. it is within the parameters of reasonable foreseeability. I think recklessness and whether the risk was assumed should be a jury question. If someone cuts me off in a crit and I die, leave it to the jury to decide whether his rule violation, if any, was reckless. I think the court is using this doctrine of assumption of risk to abrogate the reasonable functions of the jury. Furthermore, I don't think this decision does anything to further sport. Their fear that every soccer game, touch football game, etc. is a potential lawsuit is really unfounded. The system has enough checks and balances without throwing a whole genre of cases out the window. The Knight decision is terrible in my view. Just plain wrong.
I think you should write an article about this for one of the sports publications, or maybe the HAAAVAHD Law Review. Feel free to use all my uncopyrighted material. :),
-Robert
"How wonderful it is that nobody need wait a single moment before starting to improve the world." ~Anne Frank
"As for breaking rules governing of an event, this will have little bearing on whether the risk associated with the conduct is assumed or not."
NOT! When I do a race I have a reasonable expectation that others will obey the rules. Why am I assuming the risk of injury if they violate the rule? This is what bothers me. The court is saying that is a risk you assume, i.e. it is within the parameters of reasonable foreseeability. I think recklessness and whether the risk was assumed should be a jury question. If someone cuts me off in a crit and I die, leave it to the jury to decide whether his rule violation, if any, was reckless. I think the court is using this doctrine of assumption of risk to abrogate the reasonable functions of the jury. Furthermore, I don't think this decision does anything to further sport. Their fear that every soccer game, touch football game, etc. is a potential lawsuit is really unfounded. The system has enough checks and balances without throwing a whole genre of cases out the window. The Knight decision is terrible in my view. Just plain wrong.
I think you should write an article about this for one of the sports publications, or maybe the HAAAVAHD Law Review. Feel free to use all my uncopyrighted material. :),
-Robert
"How wonderful it is that nobody need wait a single moment before starting to improve the world." ~Anne Frank