A lady member of a biking club in the town of Southampton went with her husband and seven other members of the biking club for their customary 100-mile weekend bike run early on the morning of July 27, 2002. She was an advanced intermediate bicyclist as were all the other eight bicyclists who were with her. The lady was the last biker in the single file of bikers. She was closely following a male friend of hers who was about three to five feet in front of her. Her husband was in front of her male friend and they were all riding between twelve to seventeen miles per hour on the right hand side of Deerfield Road in Southampton very near the corner of Woodthrush Lane. They were on the southbound lane.
She saw the first two bikers bunny hop on their bikes to avoid something on the road as did all the other bikers that followed. She noticed from afar that the concrete road had a black asphalt overlay on it in the middle which appeared like a shallow crater on the road. There were no traffic cones or signs on the road alerting passersby of the uneven state of the road. There were no shoulders abutting the road so they had to stay on the uneven road. She saw her husband bunny hop in front of her to avoid the ridge that was created by the uneven asphalt overlay on the road but her male friend who was biking just three to five feet away from her just suddenly tipped over and he fell on the road. It looked like the wheels of his bike got caught on a groove in the road and this caused his bike to trip and fall.
The lady cyclist had to avoid hitting her friend so she veered toward the middle of the road. She passed her fallen friend but she hit the uneven asphalt overlay in the middle of the road which was not flush with the rest of the roadway. She skidded, fell from her bike and slid underneath a car which was going northbound on the opposite direction that she was cycling on.
The lady lost consciousness and the other bikers who heard the screeching of the tires on the pavement stopped and looked back and saw the lady cyclist unconscious underneath the car. She was not hit by the car and her bike was not destroyed by the car, the lady and her bike slid under the car from its side, right between the front and back tires.
It was because of the personal injury she sustained during this incident that the lady cyclist filed this suit in damages against the town of Southampton, which, according to her, failed to maintain the road in good repair. She also sued the water authority which dug up the road, for not making sure that the asphalt overlay on their project was returned to its condition before they dug it up. She sued the water pipe company that laid the water main, and she also sued the construction company that repaired the road for not putting in traffic signs and traffic cones alerting her to the uneven condition of the road. Lastly, she sued the driver of the northbound car.
There were other witnesses to the accident. A driver who was driving in the same direction as the bikers and who was behind them on the road testified on deposition that the driver of the car on the northbound lane opposite the bikers was doing about twenty-five to thirty miles per hour, well within the speed limit of 30 miles per hour on Deerfield Road. A lady who was having coffee on her front porch which had an unobstructed view of Deerfield Road also saw the incident and testified on deposition that she saw one cyclist fall on the road and the last cyclist tried to avoid the fallen cyclist. She also testified that she saw the driver of the northbound car slam on his brakes and tried to avoid the lady cyclist who veered into his lane.
The water pipe company sued the lady cyclist’s male friend. The water authority sued the lady cyclist’s male friend and her husband.
All the eight cyclists were deposed on discovery. The highway engineer of the town of Southampton was deposed along with the managers of the water authority, the pipe company and the road repair company. A driver who was behind the cyclists on the road was also deposed. A lady who was standing on her porch just off Deerfield Road was also deposed.
After the depositions, the water authority and the road repair company filed for a motion for summary judgment asking that the complaint against them be dismissed. The driver of the car under which the lady cyclist slid also moved for a summary judgment of dismissal. The lady cyclist’s male friend who fell on the road also filed a motion for summary judgment asking the complaint against him by the pipe laying company and the water authority be dismissed. The town and the water pipe laying company also asked for a summary judgment of dismissal of the complaints against them.
The Court granted the motion for summary judgment prayed for by the driver of the car under which the lady cyclist slid. The Court found that the driver of the northbound car was not negligent. There was sufficient evidence that he was not driving negligently prior to the accident. He could not have foreseen or anticipated that a cyclist would veer toward his lane. He was caught in an emergency situation and had no time to think. He did not create the emergency by his own negligence so he was under no duty to exercise the best judgment. Even if because of his erroneous judgment, injury was sustained by the lady biker. He could not have avoided the accident. He cannot be made liable for the lady biker’s injury.
The Court also noted that since all the bikers (including the lady cyclist’s male friend and the lady cyclist herself) were expert bikers. When they decided to embark on the sport of cycling on the open road, they knew and appreciated the risks involved in the nature of the sport. They are considered to have consented to the common risks of the sport including the risk that the surface of the roads they will bike on may not be in the most ideal condition.
But the Court finds that despite the inherent risks of the cycling sport, there is still an issue of fact that has to be determined, that is: whether the presence of grooves on the road or the absence of a top layer of asphalt that created a ridge on the road can be considered as a common and accepted risk in the sport of cycling. For this reason, the motion for summary judgment prayed for by the lady cyclist’s male friend cannot be granted.
As for the motion filed by the water authority and the road repair company, it is undisputed that the water authority entered into a contract with the road repair company to dig a long hole on the road to remove an old water main. The water authority also contracted with the water pipe laying company for it to remove an old water main and replace it with a new one. The water authority contracted that after the water pipe laying company had finished replacing the water main, it had to fill the hold with the soil it had removed from underneath the road. It was after this that the road repair company would lay asphalt on the hole so that it would be even and flush with the rest of the roadway. All this repair work was under authority, license and permission from the town of Southampton which owned Deerfield Road.
The depositions reveal that there are issues of fact that have yet to be tried. For instance, it is still not clear: if the road repair company had done its contractual job of completing the road repair; if the final asphalt overlay had already been laid; if the last and final asphalt layer was flush with the rest of the roadway; if the town or the water authority had properly inspected the road repair job. Because of these issues of fact, the motion for summary judgment prayed for by the road repair company and the water authority has to be denied.
The water pipe laying company’s motion for summary judgment however, should be granted because it has sufficiently submitted proof that it had done properly what it had contracted for; that it had finished removing the old water main and replaced it with a new one; that it had duly filled the hole with soil and aggregate which was its contractual obligation; that it had finished all the work that the contract called for it to do; that it finished its job three months prior to the accident.
Are you like the driver here who had the misfortune of figuring in an emergency situation that you had not anticipated and because of some error in judgment, someone was injured? How will you defend yourself? You need to know how the law protects motorists like yourself. You need to call Stephen Bilkis and Associates to talk to a New York Personal Injury lawyer who can advise you on your rights under the law. A New York Personal Injury attorney can help you present your case; he can present evidence on your behalf so that you need not pay damages if you were not negligent. Go to any of the conveniently located offices of Stephen Bilkis and Associates and confer with a New York Personal Injury lawyer who can assist in your defense.