Credit: CityLaw
Bike riding is enjoyable, healthy and fun. It can also be dangerous. The City is heavily invested in encouraging bike riding and bike safety. Yet, accidents happen, and when they do bike riders may opt to sue. Bike riders receive no special status as tort plaintiffs. Bike riders in court live by the same rules that govern tort claims by pedestrians and car drivers. As New York courts have repeatedly stated, a “bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position.”
Prior Notice
Riding a bicycle in the City is a good way to survey and experience the condition of the City’s roads and avenues. The bike rider learns to avoid potholes, sinkholes, manholes, drains, curbs, tree roots and cobble stones. On occasion, a defect in the pavement causes a bike rider to fall and the bike rider then may look to sue the City.
A bike rider, like any person injured by a roadway or sidewalk defect, has to show that the City had received a prior notice of the defect. The statutorily-imposed prior notice requirement protects the City from excessive liability for accidents by requiring that the City have a prior notice of at least 15 days prior to the accident, during which time the City has the opportunity to repair the defect. A failure to establish that the City had prior notice of the defect is fatal to a tort claim by the injured bike rider.
In a recent case, for example, Regina Gori was thrown from her bike while riding to work on 2nd Place between Henry and Clinton Streets, Brooklyn. Gori’s front wheel became caught on a depressed City sewer manhole cover. The City demonstrated that it had not received a prior notice of a defect in the manhole cover. Gori argued, to no avail, that City rules imposed a duty on the City to maintain its manhole covers. The court rejected the argument, dismissed Gori’s complaint, and ruled that a prior notice is a condition precedent to a civil lawsuit against the City even where the City is required to maintain the manhole. Gori v. City of New York, 98 N.Y.S. 3d 262 (2d Dep’t 2019).
In a similar case, bike rider Alan Budoff was injured when a defect in the bicycle lane on Manhattan Avenue in Brooklyn caused Budoff to fall. The City had not received a prior notice of the defect. Budoff attempted to avoid the prior notice rule by arguing that the City caused the defect or, alternatively, the City derived a special benefit from the bike lane unrelated to general public use. The bike lane, Budoff argued, bestowed a special benefit upon the City by enhancing the City’s status and attracting residents and tourists. The Appellate Division Second Department rejected Budoff’s arguments, ruling that the bike lane was just an ordinary public use of the City’s roadways. The court enforced the prior notice rule, ruled that Budoff could not demonstrate that the City had received a prior notice of the specific defect that had caused his injury, and dismissed Budoff’s complaint. Budoff v. City of New York, 83 N.Y.S.3d 163 (2d Dep’t 2018).
In another case Richard Garrison fell from his bike when his bike hit a hole in a path in a Bronx park. There had been no prior notice. Garrison argued that the City caused the defect because the City allowed the bike path to be used by motor vehicles to remove snow and collect garbage. As a secondary argument, Garrison asked the court to infer that the City had actual notice based on a Parks’ plan to resurface the entire 100-miles of bike paths.
The Appellate Division, First Department, rejected both arguments and dismissed Garrison’s complaint. The court declared that the occasional motor vehicle use was not a special use indicating that the City caused the defect, and that a decision to commence a major resurfacing plan was not the equivalence of a prior notice of a specific defect. Garrison v. City of New York, 751 N.Y.S.2d 436 (1st Dep’t 2002).
Park Rules
Many parks restrict or prohibit bike riding as a way of protecting pedestrians. These rules are not rigidly and uniformly enforced as any one walking through a City park can attest. Pedestrians walking in parks who have been injured by a bike rider have, without success, pointed to the City’s failure to enforce bike restrictions as a basis for liability. The failure to enforce bike restrictions rules does not in and of itself create tort liability.
For example, Carolyn Solomon, a child, was struck and injured by a bike rider unlawfully riding his bike on the promenade in Manhattan Beach Park, Brooklyn. Solomon sued the City, claiming that the City had failed to enforce its no-bike-riding regulation. The Court of Appeals rejected the argument, ruled that failing to enforce a park regulation did not create a duty to individuals such as Solomon, and reversed a $135,000 judgment in Solomon’s favor against the City, The Court ruled that, absent a special relationship, the City did not have a duty to individuals based solely on the failure to enforce park rules. Solomon v. City of New York, 66 N.Y.2d 1026 (1985).
A more positive result for the pedestrian occurred when a four-year-boy was struck by a bike rider on New York City Housing Authority property. NYCHA does not benefit from the prior notice rule, and torts on its property are treated as if they occurred on private property. The four-year-old, who was injured by a bicyclist, was playing in an open sprinkler shower when an older bike rider rode his bike through the spray and injured the four-year-old. NYCHA prohibited bike riding, but had failed to enforce its rule. The Appellate Division, Second Department, upheld a verdict in favor of the four-year-old and against NYCHA for negligently failing to enforce its no-bike-riding rule. The proof showed that NYCHA was aware that bikes were continuously propelled into the area of the sprinkler and that the failure to enforce the rule was the cause of the collision. Da Rocha v. NYCHA, 122 N.Y.S.2d 397 (2d Dep’t 1953).
Bike Rider’s Own Negligence
Bike riders, like all motorists, are required to see what there is to see and to avoid acting negligently with respect to their own safety. An injured biker who was riding recklessly or negligently risks losing any claim entirely. At a minimum, a jury would be required to allocate responsibility between the negligent bike rider and the negligent car driver.
Bike-rider Christopher Palma, for example, collided with a stopped car that was waiting to exit from a Duane Reade parking lot in Suffolk County. Palma attempted to ride his bike into the parking lot at an entrance where the car driver had the right-of-way and at a bike speed too great for the conditions. The court dismissed Palma’s complaint against the car driver, ruling that Palma’s negligence was the sole cause of the injury. The court stated that a “bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position.” The court ruled that the automobile merely furnished the occasion or condition for the accident, and was not the cause. Palma v. Sherman, 867 N.Y.S.2d 111 (2d Dep’t 2008)
In another case the State Court of Claims dismissed a claim by Wallace D. Watson who was injured when he rode his bike into a metal warning sign on the temporary bike path along the Hudson River. The metal sign had been installed during construction of West Street and the Hudson River Park. The court ruled that the sign was not a defect or danger. The sign was there to direct and guide cyclists, rollerbladers and pedestrians to one side or the other of the white line on the bike path. The court noted that the accident was caused by the bike rider’s inattention, speed and perhaps a lack of a headlight, a requirement for night riding. Wilson v. State of New York, 841 N.Y.S.2d 824 (Ct of Claims 2007).
A similar result occurred when an eleven-year-old bike rider lost control of his bike in Fort Greene Park, left a paved pedestrian path, rode onto an area covered by dirt and grass, and struck a retaining wall. The court noted that the wall was a considerable distance from the paved pedestrian path and dismissed the complaint against the City. The court ruled that the bike rider was the sole cause of his injury and that the retaining wall was merely the occasion for the injury, not the cause. Rattray v. City of New York, 997 N.Y.S.2d 707 (2d Dep’t 2014).
Violating Traffic Laws
Automobile drivers are entitled to assume that bike riders will obey traffic laws. A bike rider who rides against traffic or runs a stop sign or traffic signal risks losing any claim that the bike rider has against the driver. Violation of an applicable traffic rule is treated as negligence per se.
On May 12, 2009 bike-rider Yan Lu collided with a pick-up truck at the intersection of Burling Street and 45th Avenue in Queens. Testimony established that Lu ran the stop sign without stopping or slowing. The driver of the car, who had the right of way, attempted to avoid the collision, applied the brakes and slowed to a stop. The judge dismissed Lu’s case, stating that the driver was entitled to anticipate that the bike rider would stop at the stop sign and yield the right-of-way to the pick-up truck. Lu v. Saia, 999 N.Y.S.2d 101 (2d Dep’t 2014).
In another case a jury ruled against a bike rider who unlawfully rode against traffic and unexpectedly turned into a street. The bike rider was struck and killed by a truck. The jury credited the defendant driver who testified that the driver had no reason to anticipate a bike rider, riding against traffic, would turn into the street. Glassberg v. Filco Carting Corp., 958 N.Y.S.2d 123 (1st Dep’t 2013).
Similarly, a bike rider’s complaint was dismissed when the bike rider rode against traffic on Bennett Avenue in the Bronx and crashed into the passenger side door of a car. The car’s driver did not see Olangy Felix entering the intersection on his bike from the wrong direction. A video showed the driver slowing at the intersection’s yield sign and checking for cars. The judge dismissed the bike rider’s complaint, stating that the car driver was not “required to look in the opposite direction of the intersecting one-way street to see if someone was traveling in the wrong direction and at a speed indicating no time to stop. Felix v. Polakoff, 2019 N.Y. Slip Op. 73777(U) (1st Dep’t 2019).
Bike Lanes
Under New York City traffic rules, motor vehicles are prohibited from stopping in, driving on, or crossing bicycle lanes. Violation by a motorist risks liability.
Bike riders, however, must maintain proper lookout, even in a bike lane. A bike rider riding in the bike lane on First Avenue in Manhattan collided with a car that was lawfully in the process of parallel parking. Witnesses testified that the bike rider was turned around and looking backward when the bike rider struck the car that was momentarily stopped while in the process of parallel parking. The court ruled that the bike rider in the bike lane was the sole cause of the accident. Morales v. Caparella, 2015 N.Y. Misc. LEXIS 2696 (Sup. Ct. Queens Cty 2015).
In a similar case a bike rider was injured while riding in the bike lane on First Avenue at the intersection of East 11th Street, Manhattan. A car driver attempted to make a left turn and, in the process, crossed over the bike lane causing the bike rider to brake sharply and be propelled over his handlebars. The court, based on the car driver’s violation of the bike lane rules, granted the bike rider summary judgement on liability, but sent the case for trial on whether the bike rider was also negligent in failing to see the vehicle and avoid hitting the car. At the trial the jury could find both the car driver and bike rider negligent and would then allocate responsibility between the bike rider and the car driver. Bell v. Angah, 2018 N.Y. Misc. Lexis 1917 (Sup. Ct. NY Cty 2015).
In another bike lane case, a car driver collided with a bike at the intersection of Wythe Avenue and North 6th Street in Brooklyn. The bike rider was in the bike lane ahead of the car when the car struck the bike from the rear. The car driver crossed the bike lane in an attempt to make a right turn from Wythe Avenue onto North 6th Street. Under the circumstance of this case the court ruled that the car driver was the sole cause of the accident. Harth v. Reyes, 59 N.Y.S.3d 48 (2d Dep’t 2017).
Qualified Immunity
The City benefits from a qualified immunity from tort claims for its traffic management decisions, but only if those traffic management decisions are within permissible engineering judgment and are supported by actual engineering studies. When the City fails to meet these standards, the City may be liable.
An example occurred on Gerritsen Avenue in Brooklyn, a notorious location for speeding and drag racing. Many citizens and elected officials had complained to the City about the unlawful and dangerous drag racing on Gerritsen Avenue. On December 5, 2004, one of these speeding cars struck twelve-year-old Anthony Turturro who was riding his bike on Gerritsen Avenue.
The City defended by claiming that it enjoyed a qualified immunity and could not be held liable for Turturro’s injuries. DOT pointed out that it had made several studies of Gerritsen Avenue which confirmed that many vehicles were speeding, and that DOT had referred the speeding to the police department. But DOT also admitted that it had not installed speed bumps, additional traffic signals or any other physical changes to Gerritsen Avenue that would have “calmed” the traffic.
The Court of Appeals rejected the City’s claim for a qualified immunity as not supported by sufficient studies and permissible engineering decisions. The City had failed to conduct an adequate engineering study of the traffic and of methods that could have calmed and controlled the speeding. The Court ruled that the City could be held liable for Turturro’s injury based on the alleged negligent manner in which the City had managed the traffic on Gerritsen Avenue. Turturro v. City of New York, 28 N.Y.3d 469 (2016).
The Brooklyn Bridge’s narrow walkway with side-by-side pedestrian and bike lanes has also been the subject of claims that the City failed to manage traffic appropriately. On July 25, 2010 Donald Olenick, riding on the Brooklyn Bridge walkway, collided with a pedestrian who, Olenick claimed, stepped from the marked pedestrian lane into the marked bike lane. Olenick claimed that he did not have time to stop his bike. The collision resulted in severe injuries to Olenick who sued the City.
The City claimed qualified immunity for the engineering design of the Brooklyn Bridge walkway, but the court refused to grant the City immunity. The judge ruled that the City failed to show an appropriate engineering study to support its claim of immunity, and upheld Olenick’s complaint against the City’s motion to dismiss. Olenick v. City of New York, 52 N.Y.S.3d 839 (Sup. Ct. Kings Cty 2017).
Dogs
Dogs chase bikes. When a bike rider is injured, the law favors the dog, not the bike rider. The Court of Appeals in 2015 ruled that a bike rider can only prevail by showing that the dog owner had prior knowledge of the dog’s vicious propensities. The dog owner cannot be held liable for an injury caused by the dog even when the dog owner negligently allowed the dog to run free, failed to restrain the dog, or negligently handled the dog.
The recent Court of Appeals case involved two separate incidents. In the first case Wolfgang Doerr was riding his bike on the bicycle loop in Central Park when he collided with a dog. The dog owner had let the dog off its leash in an area that permitted dogs to run off-leash. The owner claimed that he called the dog to come to him, but it was too late and the dog crossed the loop road into Doerr’s path. Doerr hit the dog and was thrown from his bike. In the second case, Cheryl Dobinski was riding her bike on Route 98 in Franklinville, New York. As Dobinski rode near a farm house, the farmer released two German Shepherds from the house. Within ten seconds of the dogs’ release, the dogs ran into the road. Dobinski struck one of the dogs which caused her to flip over her bike.
Neither Doerr nor Dobinski could show that the owners had prior knowledge of the dog’s vicious propensity with the result that the Court of Appeals dismissed both complaints.
Doerr v, Goldsmith, 25 N.Y. 1114 (2015).
By: Ross Sandler (Ross Sandler is the
Ross,
Thank you for this comprehensive review.
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