Can they sue me?

November 13, 2014 § 24 Comments

It’s a common question with a short answer: Yes.

Here’s the scenario: You come up with a new course and invite your friends to join you. It’s the classic “group ride” with no waiver, no rules, no controlled access to the course, no referees, no ambulance on stand-by, and no entry fee.

The guy who invites his buddies to the beatdown wants to know, of course, whether or not he can be sued if someone falls off his bicycle, gets hit by a car, or gets taken out by another wanker.

The easy answer of course is “YES.” Anyone can sue anyone for anything at any time. Pay the filing fee and it’s game on. But the real question is whether or not the plaintiff will win. And it all starts with something called assumption of the risk.

In California, if some wanker sues you because he fell off his bike during the Thursday morning beatdown ride that you mentioned on Facebook, your best defense is assumption of the risk. In common language, this means that if you’re dumb enough to do it, don’t come whining to the judge when you get hurt.

Technically, it’s more, well, technical. After your former best friend sues you, and you’ve become the defendant, you move for summary judgment on the basis of primary assumption of the risk. This is a fancy way of saying that you’re asking the court to kick the case out the door before it ever goes to trial because you can show that you owed no legal duty to the whining wanker to prevent the harm that he’s now complaining about.

If you can show that the wounded wanker expressly assumed the risk, then you have a complete defense to his negligence lawsuit. Of course, the group ride is exactly the scenario in which you won’t have a signed waiver, or even a speech advising everyone that they’re about to engage in something that may maim or kill them, so proving an express assumption of the risk may be contentious. One way you can protect yourself is by admonishing everyone at the start of the ride that they’re voluntarily assuming the risk of death or catastrophic injury. Another way, of course, is making people sign a waiver.

The rationale behind the assumption of risk defense is that you owe no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the wanker, absent some reckless or intentional misconduct. For cycling, falling off your bicycle is unquestionably an inherent risk of riding in proximity to other wankers. The only thing that a defendant may not do is increase the risk of harm above that inherent in the sport. For example, tossing hand grenades into the peloton, or intentionally knocking someone off his bike to “teach him a lesson,” or pushing someone off a cliff on a descent.

The ordinary stupidity that most wankers exhibit on a group ride isn’t enough for the whining wanker to win his lawsuit. California courts have said that “[i]n some situations, the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” So, when there are 85 knuckleheads on the NPR, many of whom still don’t know how to ride in a straight line, you can’t sue someone because you got knocked off your bike.

Whether the primary assumption of risk doctrine applies doesn’t have anything to do with whether the whining wanker behaved reasonably. It’s a question of law that depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.

In other words, group rides involve riding proximately to unskilled idiots, lots of them. It is inherent that if you’re going to hammer your bike on a public road next to some bonehead, said bonehead may inadvertently chop your wheel, whack into you from behind, or barf onto your handlebars. The law says, “Tough shit.”

Generally, the primary assumption of risk doctrine applies in a “sports setting,” and an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies. The case of Moser v. Ratinoff basically held that you can’t sue a fellow wanker who takes you out on a group ride when the person who knocked you off the bike was just an ordinary idiot. Remember when your mom told you that if you hang out with dope smokers you’ll be a pothead, too? Same deal.

There are a number of cases involving sports activities in which the court found a primary assumption of risk. Snow skiing, water skiing, ouch football, collegiate baseball, off-roading, skateboarding, golf, lifeguard training, tubing behind a motorboat, wrestling, gymnastics stunt during cheerleading, little league baseball, cattle roundup, sport fishing, ice skating, football practice drill, judo, rock climbing, river rafting, and sailing have all been found to be activities where the assumption of risk applies.

Now I know what you’re thinking, and I am, too: “GOLF IS NOT A SPORT.” But the judge says it is.

In some other recreational activities, courts have held that there was no primary assumption of risk. Boating passenger and recreational dancing cases in California allowed the whiny plaintiff’s case to proceed, but it’s my opinion that the embarrassment of having to admit that you’re a recreational dancer totally negated the value of any money awarded in the litigation.

Primary assumption of risk applies to competitive sports and to noncompetitive recreational activities as well, such as a ski boat driver towing a water skier. Like competitive sports, vigorous participation in noncompetitive sports would likely be chilled and the nature of the sport altered if liability were to be imposed for ordinary careless conduct. This has particular meaning for your informal group ride beatdown, which may not technically be a sporting race (especially given all the wheelsuckers who will cut the course).

An activity falls within the meaning of “sport” if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. So, not ballroom dancing, but yes, the Thursday ride. You can get whacked by a car. By a co-wanker. You can slide out on the wet spot on the descent on the golf course. Hit a peacock. Slam into the curb while ogling the hot chick in front of you. Thrill, physical exertion, and risk of injury are all present.

Although bicycle riding, like driving an automobile, can be a means of transportation, “organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge․ In view of these considerations, the organized, long-distance, group bicycle ride qualifies as a ‘sport’ for purposes of the application of the primary assumption of risk doctrine.” The court in Moser basically said that big, organized group rides are a sport. Incredible, but true.

But before you get too happy, recall that you’re not allowed to do anything to increase the risks inherent in the activity. Although defendants do not have a duty to protect the plaintiff from risks inherent in the activity, they do have a duty not to increase the risk of harm beyond what is inherent in the activity. Analyzing the liability of other than co-participants requires defining “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.”

In other words, you can’t take the tackle out of tackle football, but neither can you let people play it with handguns.

But a defendant may not increase the likelihood of injury above that which is inherent, and conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.

In the group ride context, you can’t intentionally take someone out, but you can apparently be a wanker. Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. So if you’re showing up for the 6:30 AM ride completely soused, and you accidentally push a pal into oncoming traffic, expect a lawsuit.

But what about cyclocross, which ordinarily can’t be properly done without beer? The Supreme Court of California has yet to rule on such a thorny issue.

Going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride.

I’d argue that it’s inherent in your local group beatdown, too, but to be safe you should take the time to mention it.

So what does it all mean? In general, people who participate in informal group rides appear to be protected in California by the doctrine of assumption of the risk. This doesn’t mean you won’t get sued, it just means you have a fairly solid leg to stand on when you have to defend.

*Key cases: Knight v. Jewitt, Moser v. Ratinoff, Amezcua v. Los Angeles Harley-Davidson.

Disclaimer: This isn’t legal advice for you or your case or your upcoming ride. It’s general legal advice. No attorney-client relationship has been created between us without a signed retainer agreement.

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