FEDERAL COURT HOLDS MAY BE DUTY TO WARN BICYCLISTS EVEN WHERE OBSTRUCTIONS ARE “VISIBLE”
A federal judge in New York has held that there may be a duty to warn about obstructions on a bicycle path, even if those obstructions are clearly visible. The bicycle accident lawyer; handling the case is Scott Charnas of Charnas Law Firm, P.C.
The fact that the dangerous condition – in this case several interlocked cable protectors – could be seen, doesn’t mean the company that put it there had no duty to warn bicyclists of the danger.
An experienced bicycle rider, on a beautiful October day, was traveling on a bicycle path beside the Hudson River. Earlier, a contractor, in an effort to protect a water hose, had placed the temporary cable protectors directly across the well-used urban bicycle path. The bicyclist, riding at about 10-12 mph, had to contend with other bicyclists as well as pedestrians in the same area.
The bicyclist did not see the cable protector, hit the raised object with his front wheel, and went flying through the air. Within a few minutes, and while he was still lying on the ground, seriously injured, another experienced bicyclist hit the same cable protector with a similar result.
The contractor blamed the bicycle accident on the bicyclist’s failure to see the “open and obvious” cable protectors. If the injured rider should have seen the plainly obvious obstruction, then there was no duty to warn of its existence – or so the contractor’s bicycle accident lawyers argued. They cited several cases where pedestrians tripped over open and obvious obstructions, such as speed bumps, and had their cases thrown out of court.
The judge, though, held that, “…a pedestrian traveling over a speed bump presents a different scenario than a cyclist traveling over a crowded bike path at a far higher rate of speed –here, 10-12 mph- striking a cable protector…The cable protector is much smaller, is temporary, and may not be visible to a cyclist who is traveling at a high rate of speed until it is too late for the cyclist to stop.”
The judge went on to say, “[T]he mere fact that the accident occurred on a sunny day, and that the cable protector was visible to the naked eye, does not render it “open and obvious.” Rather, the inquiry must not be ‘divorced from the surrounding circumstances.’” Perhaps most importantly, the Court held that the nature and location of some hazards, while they are technically visible, make them likely to be overlooked and therefore not open and obvious.
So, even if a bicyclist could have seen an obstruction in his path, it doesn’t necessarily mean he reasonably should have seen it. If you are injured in a bicycle accident, and have a question about whether you have a case that should be pursued, contact us at Charnas Law Firm, P.C. The case is Kliegman, et al v. Winick Productions, LLC, et al, “11-cv-02946, U.S. D.Ct. S. Dist. NY.