On a Bicycle Built…to Sue

This was originally published on the SGR Blog.

With the onset of warm weather, cyclists will again take to the road. As with almost every other form of recreation, biking provides a fertile ground for accidents, finger pointing and litigation of both simple and complex issues. Some recent examples follow.

On November 12, 2017, Frank Marzan was involved in an accident in or near a Manhattan intersection that caused him to sustain significant personal injuries. Marzan alleged that Marilyn J. Levine, a pedestrian, stepped into the bicycle lane in which Marzan was riding his bicycle, causing him to maneuver abruptly to avoid Levine and, in the process, strike nearby construction fencing. Levine maintained that she was crossing a street in a crosswalk with a pedestrian crossing signal in her favor, Marzan failed to yield the right of way to Levine and that Marzan is solely (or at least significantly) to blame for his claimed injuries.

Marzan sued to recover damages for the personal injuries he allegedly sustained as a result of the accident. Levine interposed an answer containing a number of affirmative defenses; seven of those defenses related to Marzan’s alleged comparative fault.

Levine sought to bifurcate the trial of the action, arguing that “[t]he facts underlying th[e] incident and those [underlying] Marzan’s alleged injuries were easily separable and were not so intertwined that they must be simultaneously presented to the trier of fact. In other words, Marzan’s injuries [were] not probative in determining how the accident occurred.”

Marzan opposed the motion to bifurcate. He argued that by asserting comparative fault defenses, Levine had inextricably interwoven the issues of liability and damages, making a unified trial necessary.

In reply, Levine stressed that bifurcation of personal injury actions was favored, and contended that Marzan’s injuries did not have an important bearing on the issue of her liability.

Bifurcation of trial entails the trying of liability and damages separately, with the former tried first and the latter tried if necessary. The bifurcation procedure is authorized by statute and rule. That Uniform Rule provides that “[j]udges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.” Whether bifurcation will assist in clarifying or simplifying the issues and in achieving a fair and more expeditious resolution of a given action is a discretionary determination.

Appellate courts have affirmed orders granting bifurcated trials where questions of liability and damages where distinct and severable issues and plaintiff’s injuries were not probative in determining how the accident occurred. And also where a plaintiff was able to testify about his or her state of mind and the nature of the accident, and the extent of the injuries were neither probative of how the incident occurred nor so intertwined with the damages as to require a unified trial.

Here, Levine, whose liability was not yet established, pleaded numerous affirmative defenses relating to Marzan’s comparative fault. Those defenses asserted that Marzan was, in whole or in part, responsible for his injuries. A fact finder could determine that any negligence by Levine was not a proximate cause of Marzan’s injuries, i.e., that Marzan was the sole proximate cause of his injuries. Or, a fact finder could determine that both Levine and Marzan were negligent and that their respective negligence proximately caused Marzan’s injuries, determinations that would require the fact finder to apportion fault for Marzan’s injuries.

Regardless of what a fact finder might conclude from trial evidence, one point seemed clear: a fact finder should consider all of the evidence together at a unified trial to fairly and thoughtfully ascertain (1) whether Levine was negligent, (2) whether Levine’s negligence (if any) was a proximate cause of Marzan’s injuries, (3) whether Marzan was negligent, (4) whether Marzan’s negligence (if any) was a proximate cause of his injuries, and (5) if both Levine and Marzan were found to have been negligent and that their respective negligence proximately caused Marzan’s injuries, the proper apportionment of fault for those injuries. The pertinent question to be decided by the jury was not the relative culpability in causing the accident but their relative culpability in causing the injuries complained of.

Because a fact finder would need all of the evidence—evidence regarding Levine’s liability, evidence regarding Marzan’s comparative fault, and evidence regarding Marzan’s injuries—to consider and answer the five questions, the issues of liability and damages were not distinct and severable. Rather, the issues of liability and damages were intertwined. Therefore, bifurcation would not assist in the clarification or simplification of the issues and would not promote a fair and more expeditious resolution of the action.

* * *

The Court addressed En Li’s motion, for an Order granting summary judgment in his favor on the issue of liability as against Er Lutwak on the issue of liability and to set down the matter for a trial for an assessment of damages. Lutwak opposed the motion.

The suit arose from a motor vehicle accident that occurred at the intersection of East 89th Street and Lexington Avenue when Li was allegedly seriously injured while lawfully riding a motor bike on the roadway when he attempted to pass Lutwak’s double parked vehicle and was struck by his vehicle’s passenger front side door when it suddenly opened.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial.

Violation of the Vehicle and Traffic Law constitutes negligence per se. Under VTL § 1214 “no person shall open the door of a motor vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of other traffic.” Li’s affidavit stating that the rear door of Lutwak’s vehicle `opened without warning’ and struck the left side of his vehicle established that he violated Vehicle and Traffic Law, and that Li was unable to avoid the accident.

In support of the motion, Li submitted his deposition and the affidavit of witness Quinhui Li. Li testified that Lutwak stopped his vehicle when he honked and proceeded to pass Lutwak’s vehicle when the passenger door opened and struck him. Quinhui Li, who witnessed the accident, testified that he saw Lutwak’s vehicle’s door suddenly open and strike Li when he was going around Lutwak’s vehicle. Li demonstrated that Lutwak’s vehicle opened the vehicle door on the side available to moving traffic when it was not reasonably safe to do so, and that Li was unable to avoid the accident. Thus, Li demonstrated that Lutwak violated Vehicle and Traffic Law § 1214 which constituted negligence per se.

In opposition Lutwak failed to raise an issue of fact and called into question the comparative negligence of Li. A plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability even if a defendant raises an issue of fact regarding plaintiff’s comparative negligence. The issue of a plaintiff’s comparative negligence is addressed and determined when considering the damages.

Li’s motion for summary judgment was appropriate regardless of Li’s potential comparative negligence. Pursuant to VTL § 1214, Lutwak had a duty, regardless of Li’s ability to operate his motor bike at the time of the accident, to not open his car door until it was “reasonably safe to do so and can be done without interfering with the movement of other traffic.” Thus, Lutwak failed to raise a triable issue of fact and Li’s motion for summary judgment was granted as to Lutwak’s liability.

* * *

Katherine Ballentine sued recover damages for personal injuries she allegedly sustained in a collision between her bicycle and a vehicle driven by John P. Perrone at the intersection of North 10th Street and Roebling Street, in Brooklyn. It was uncontested that a stop sign controlled the one-way traffic on North 10th Street and the traffic on Roebling Street in the direction Perrone was traveling had the right-of-way.

Perrone moved for summary judgment dismissing the complaint on the ground Ballentine’s negligence was the sole proximate cause of the accident, submitting transcripts of the deposition testimony. Perrone testified that there was a lot of activity at the intersection because a street fair was taking place and there was a lot of construction, which covered the sidewalk and extended into the parking lane in the street. Perrone stated that he did not see Ballentine prior to impact, and he was traveling approximately 25 miles per hour, looking straight ahead, with his foot on the accelerator.

Ballentine testified that she was in the bicycle lane on North 10th Street and that a construction wall blocked her view of traffic on Roebling Street in the direction that Perrone was traveling. She stated that she had stopped at the corner for some time and was slowly inching forward, with one foot on the ground, in order to peer around the construction wall when the collision occurred.

Supreme Court granted Perrone’s motion. Ballentine appealed.

The operator of a vehicle with the right-of-way is entitled to assume that others will obey the traffic laws. However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, to see what there is to be seen through the proper use of his or her senses, and to drive at a speed that is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing.

There can be more than one proximate cause of an accident. A defendant moving for summary judgment has the burden of establishing freedom from comparative negligence. In order for a defendant driver to establish entitlement to summary judgment on the issue of liability in a motor vehicle collision case, the driver must demonstrate that he or she kept the proper lookout, or that his or her alleged negligence, if any, did not contribute to the accident. The issue of comparative fault is generally a question for the trier of fact.

Here, Perrone failed to establish that he was free from comparative fault in the happening of the accident. In particular, Perrone failed to eliminate triable issues of fact as to whether he kept a proper lookout or was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present. Accordingly, Supreme Court should have denied the motion.

* * *

On July 31, 2012, Angela Coppa was running in Central Park on East Drive near the 72nd Street traverse, a roadway that at the time was reserved for pedestrians and non-motorized traffic. The roadway was crowded and Coppa was running on the left side of the roadway, which is generally reserved for walkers and runners and is separated from the right side, meant for faster moving traffic.

Coppa alleged that, as she was running, she was struck from behind by Scott Berlinger, who was riding his bicycle and struck her in the calf, knocking her over and then landing on top of her back along with his bicycle. Coppa alleged that Berlinger told her he swerved into her to avoid being hit by another cyclist.

Chelsea Piers offers a training protocol system run inside its premises known as Full Throttle. Berlinger, who developed and owns Full Throttle, is a triathlon coach and, on the day of the accident, he was leading a group of cyclists through the park on a training offered by Chelsea Piers for an upcoming triathlon. Berlinger alleged that he was hit from behind by another group of cyclists and he was thrown off his bike, causing him to hit Coppa. The other cyclists allegedly fled the scene after the accident.

Berlinger, Full Throttle and Chelsea Piers moved for summary judgment, arguing that their negligence did not contribute to Coppa’s accident. They  relied on motor vehicle accident law, where it is established that liability generally rests with the rearmost driver in chain accident collisions. And argued that there was nothing to suggest that Berlinger was operating his bicycle in an unsafe manner when he was hit from behind—and that he was entitled to summary judgment. Chelsea Piers or Full Throttle argued that they were not vicariously liability because liability could only extend if Berlinger acted negligently in the course of his employment.

Coppa opposed Berlinger’s motion and cross-moved for summary judgment on the issue of liability. Coppa argued that Berlinger was negligent as matter of law, as he violated statutory and common law duties to maintain a reasonably safe speed and avoid collisions with pedestrians. Coppa also moved for dismissal of Berlinger’s affirmative defenses of comparative negligence and assumption of risk, as there was no evidence that she contributed to her accident with her own action.

The Court found summary judgment to be an improper remedy for either party as nearly all the facts were in question. The parties offered drastically different accounts of how the accident happened. And both offered testimony from non-parties that created a question of fact as to the negligence and culpable conduct of each side.

Coppa introduced testimony from nonparty witness Christopher Coffin, an employee of Chelsea Piers who was participating in Berlinger’s cycling session. According to Coffin, he and Berlinger became separated from the group after Berlinger’s bicycle sprung a flat tire. After Coffin stopped to help, the two rode together separately from the rest of the group. Approaching an intersection, Coffin swerved to the right to avoid joggers traveling in the same direction. Coffin claimed that, after he swerved, he heard the collision occur behind him and turned around to see Coppa and Berlinger on the ground. However, Coffin attested that no cyclist struck Berlinger from behind and he did not recall Berlinger ever telling him about such an occurrence. Berlinger denied the entire chain of events, including the flat tire.

Berlinger introduced conflicting testimony from nonparty witness Jason Sandolo, another member of the Chelsea Piers team. Sandolo claimed Coppa was “not paying attention to her surroundings” and was jogging at an angle that put her on a path towards collision with cyclists. Berlinger argued that based on Sandolo’s testimony, there were questions of fact regarding whether Coppa was acting negligently. More specifically, Berlinger alleged that Coppa may have violated Vehicle and Traffic Law § 1152(a) and Rules of the City of New York § 4-04(b(2), which stipulate, respectively, that pedestrians must yield the right of way to vehicles and may not “walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield.” And Berlinger also argued that Coffin’s testimony should be discounted as he was not a neutral witness, given that he was fired by Berlinger shortly after the accident.

Summary judgment was not warranted for either party because there were material issues of fact as to how Berlinger’s collision with Coppa occurred. Berlinger owed Coppa a duty of care to operate his bicycle in a reasonably safe manner, as failing to do so would foreseeably harm a runner such as Coppa. The parties submitted evidence supporting differing versions of the accident. The Court could not determine the issue of Berlinger’s negligence as a matter of law. And neither Coppa, nor Berlinger, Full Throttle, and Chelsea Piers were entitled to summary judgment on the issue of liability.

But, as to assumption of risk, Coppa was entitled to dismissal of the affirmative defense, as being hit by a bicycle was not an ordinary risk inherent in the activity of jogging in the park. Berlinger’s contention that Coppa veered into Berlinger’s path was an argument that went to comparative fault rather than assumption of risk.

* * *

On September 4, 2017, Stanley Selig was riding his bicycle on Main Road, in the Town of Southhold, when he was allegedly struck by a vehicle operated by Roberto Diez, who was traveling westbound in the same direction, but in a lane of travel. Selig turned left out of the shoulder area and into the westbound travel lane for vehicles.

Selig sued to recover damages for personal injuries, alleging that Diez was negligent in the operation of his vehicle. Following discovery, Diez moved for summary judgment dismissing the complaint on the ground that, under the emergency doctrine, he could not be liable for the Selig’s alleged injuries. Supreme Court granted the motion and  dismissed the complaint. Selig appealed.

Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. As a general rule, the questions of the existence of an emergency and the reasonableness of the response are issues for the trier of fact, although the issues may in appropriate circumstances be determined by the court as a matter of law.

The evidence proffered in support of Diez’ motion demonstrated, prima facie, that he was presented with an emergency situation: Selig suddenly and without signaling entered the westbound travel lane from the shoulder, and that Diez acted as a reasonable person would under the circumstances. In opposition, Selig failed to raise a triable issue of fact.

Accordingly, the appeals court affirmed dismissal of the complaint.

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