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By Bob Mionske
I have a two- part question: first, in general, what is the legality of a group training ride? If I email my friends and say, “Let’s all meet at my place at 6 a.m. for a century ride, I’ll lead,” and someone joins me and gets hit by a car while on my ride, to what degree can I be held legally accountable? Second, what if my group includes a university cycling team with members under 18?
Your question is very complex. Some of the issues raised have only been addressed in the last year or so, and others vary widely from state to state, making any highly specific answer impossible. However, I will provide some general guidelines and offer my best guess as to where the state of the law is going.
The overriding issue is something called “assumption of risk.” If Smith signs up for a three-round amateur boxing contest against Jones, he cannot sue Jones if he gets a bloody nose, because it is a routine and foreseeable outcome of that type of activity. On the other hand, if Jones surreptitiously removes the padding from his gloves to “teach Smith a real lesson,” that is not a foreseeable risk of the sport and Jones will be liable to Smith. (Yes, this was a real case, in Florida, 1962.) A California court, in Wicker v. Ooster (1995), summarized the rule applicable in most states:
When faced with participants in an active sport, one participant breaches a legal duty to another only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
Some famous recent examples of clearly outrageous conduct have included a professional basketball player that slugged another player in the face as the second player ran down the court to break up a fight, and a pro hockey player that clubbed another with his stick over the head from behind with a full overhead blow. “The rules of the game” are easy to figure out when we are discussing a high school or college basketball game, but do the same legal principles apply when we are talking about more informal activities? Generally, yes, as a New Mexico judge ruled in a 1990 case, Kabella v. Bouschelle:
Here, the players at the time of Kabella’s injury were not involved in any organized athletic activity being played under the supervision of coaches or referees, or a definite set of rules. The participants were playing under a loose set of rules informally agreed upon among themselves. The contact was not intentional, willful or reckless. Although Kabella alleged the players had agreed to stop play when the ball carrier yelled “I’m down,” Kabella does not allege that violating this rule constituted an intent to harm him, or that it amounted to reckless conduct.Vigorous and active participation in sporting events should not be chilled by the threat of litigation. The players in informal sandlot games do not have the benefit of written rules, coaches, referees or instant replay to evaluate a player’s actions. A cause of action for personal injuries between participants must be predicated upon recklessness or intentional conduct, not mere negligence.
So in most states, one participant in a contact sport cannot sue a co-participant for an injury unless it results from conduct that was intentional or reckless. On the other hand, when we move away from contact sports into so-called “cooperative” sports, the issue of co-participant liability becomes less clear. In Novak v. Virene (1991), a New Hampshire court allowed a lawsuit in a skiing collision caused by simple negligence to go before a jury:
Other cases have applied an exception to ordinary negligence liability for team sports in which contact was virtually inevitable. As in the individual sports of running and bicycling there is the possibility of collisions in downhill skiing. But by participating one does not voluntarily submit to bodily contact with others, and such contact is not inevitable. Therefore, defendant’s conduct should be governed by ordinary negligence standards.
Keep in mind that the “ordinary negligence standard” still requires a showing that the allegedly negligent skier was acting worse than a reasonably prudent skier of similar abilities and experience under similar circumstances. The most common way in which participants act negligently is to get themselves in over their heads, such as a beginner trying to tackle a difficult “black diamond” ski slope or an inexperienced cyclist trying to grimly hang on to a 22mph pace line.
Not all states agree with New Hampshire’s “if it’s a non-contact sport, negligence applies” formula. California, for instance, insists that it is the inherent nature of the sport, not the relationship of the players to each other, that matters. Confused? Try this explanation, involving two sailboat crewmen, taken from Stimson v. Carlson (1992). Carlson, the helmsman, was supposed to call out “jibe ho!” before moving the tiller for a course change to warn the others that the boom would sweep across the boat. In a close race on rough water, Carlson forgot to call out, and Stimson got hit by the boom. The court said it was analogous to a foreseeable foul in a contact sport, and denied the suit:
Generally, participants have no duty to protect each other against the risks inherent in an active sport. A swinging boom is a risk inherent in the sport of sailing. When an inherent sports risk is involved, the defendant is liable only if he or she intentionally injures another player or engages in conduct that so reckless that it is totally outside the range of the ordinary activity involved in the active sport. Failing to call out course changes does not amount to intentional or reckless conduct. Carlson’s failure to declare a course before executing it was not so reckless as to be totally outside the range of ordinary activity involved in the sport. While his conduct was unexpected, it did not alter the fundamental risk of sailing. The boom and its sheets remained the danger.
A very similar case dealing with bicycling was heard just last year in California in Moser v. Ratinoff. Both riders were involved in the “Death Valley Double Century,” and were riding in a group of three. Before dawn, distracted by a police car, Ratinoff drifted to the right and collided with Moser, who went down. The court very plainly stated that “the issue in the instant case is whether an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies.” The question was both unique and important. Bicycling is, of course, regulated by traffic law. Under normal circumstances, a cyclist riding by herself for transport is governed by traffic law and negligence applies—if she is negligent, as defined by the traffic code, she will be liable to another for any injury she causes, and the reverse will be true. But a group ride starts to take on some of the characteristics of a sport, so if two riders bump into each other, is it more like two cars colliding at an intersection, or a helmsman forgetting to call out a sweeping mainsail boom? Let’s hear the court . . . .
. . . it is true that bicycle riding is a means of transportation—as is automobile driving. Normal automobile driving requires skill, can be done for enjoyment, and entails risks of injury. But organized, long distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile or individual bicycle riding on public streets or on bicycle lanes or paths. In view of these considerations, the organized, long-distance group bicycle ride qualifies as a “sport.”
The court was careful to point out that its decision affected only non-competitve performance riding and that “we express no opinion as to such other forms of recreational bicycle riding.” Even for such extreme events as a double century, the holding was limited to co-participant liability and the “mere riding of a bicycle does not mean the assumption of risk by the rider that he may be hit by a car,” so a negligent auto driver could not use the defense that the cyclist “assumed the risk” that a careless motorist would come along.
In a brief digression, the Moser case appeared to nail down an issue that had been kicking around California for about a decade. Section 21202 of the California Vehicle Code requires bicycles to operate “as far as practicable to the right-hand curb or edge of the roadway.” In a 1995 law journal article, Alan Wachtel suggested that this implied that two abreast riding was legal, because the cyclist on the left cannot move over due to the presence of the cyclist on his right. Here, Moser claimed that Ratinoff’s riding to her left violated the law and demonstrated his negligence, and that this should permit her suit to go forward. The court agreed that there was an infraction, stating that “the facts show that Ratinoff violated the provisions of the Vehicle Code designed to protect persons using the public roads,” but concluded that the infraction didn’t justify the suit, as such risks are foreseeable when one engages in roadway-based sporting events. Thus, it wouldn’t be a good idea to offer Alan’s theory in California if you are ticketed for two-abreast riding.
So far, we have talked about the most simple case, that of co-participant liability in a sport. But in your case, C.A. you are not just riding along—you have invited the participants and are “leading.” Next week we’ll discuss the possibility of liability as a promoter/organizer or as a coach.
(Research and drafting provided by Bruce Epperson J.D.)
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to email@example.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.