A recent decision by a New York appellate Court has inspired us to revisit our blog post, Play At Your Own Risk: A Valid Legal Concept? and to provide more information and greater detail regarding what a plaintiff must prove in order to win a personal injury lawsuit arising out of a bicycle riding accident. In Cotty v. Town of Southampton, the plaintiff was hurt when another bicyclist who was riding ahead of plaintiff fell in an unfinished portion of roadway, causing a passing car to veer from this bicyclist and into plaintiff's body. In this case, the plaintiff argued that the municipality should be held liable for her injuries because they failed to either mark or barricade the unfinished roadway. On the other hand, the defendants moved to dismiss this bicycle accident lawsuit in its entirety on the grounds that plaintiff inherently assumed the risk that she could be injured the second that she mounted that bicycle.

In siding with the plaintiff on this issue, the appellate court held that although the assumption of risk doctrine may bar certain claims with regard to sporting activities, they were unwilling to say that a claimant, or plaintiff, inherently permits the local municipality or its independent contractor to negligently repair or maintain its roadways. According to the court, a contrary result - which would greatly expand the assumption of risk doctrine - would sginficantly lessen municipal or contractor culpability for negligent maintenance, and thereby pose a greater danger to the public.

Thus, the litmus test appears to be the following: if the injury results from an activity that is inherent in the sport, the claim is barred. As applied to bicycle riding, the appellate court held that injuries related to off-road, or mountain, bike riding would be barred; in contrast, leisure bike riding, even if part of a club, would likely be permitted to survive.