Victor M. Metsch, Esq.

Was City Liable For Failure to Demarcate Boardwalk Bike Lane?   

Linda Kuchmeister, sought damages for injuries she sustained while attempting to avoid pedestrians who entered her bicycle lane as she was riding on the boardwalk in Long Beach, New York. Kuchmeister struck a movable sign located in the middle of the boardwalk and fell, breaking her shoulder, after she was forced to swerve to avoid crashing into the pedestrians. The City moved for summary judgment dismissing Kuchmeister’s complaint.

The boardwalk bicycle “lane” was not physically segregated from the throngs of beachgoers and visitors utilizing the boardwalk and was not demarcated by painted lines. The City of Long Beach conceded that it received “a great deal of complaints,” including in writing, that the bike “lane” constituted a dangerous condition for those on the boardwalk. Notwithstanding that the known dangerous condition allegedly had resulted in injury, the City sought summary judgment dismissing the complaint.

Were Operator/Owner Liable for Injury to Karaoke Diva?

Julia Kitziger was singing and moving her body while standing on a couch or banquet at Planet Rose’s karaoke bar when the couch moved forward. She then fell backwards, falling through the floor-to-ceiling glass in the storefront window. Litigation ensued against the bar and the owner of the building. Planet Rose and the property owner moved for summary judgment dismissing Kitziger’s complaint. Supreme Court denied the motion. Planet Rose appealed.

The appellate court found that Planet Rose failed to eliminate material issues of fact as to whether the bar had notice of the window’s dangerous condition, and whether the premises was maintained in a reasonably safe condition.  Planet Rose demonstrated that the window, which did not have tempered or safety glass, complied with applicable building code provisions when it was installed. But, even if the premises complied with applicable building code provisions, a landowner had a common-law duty to maintain the premises in reasonably safe condition in view of all the circumstances. Here, the owner of Planet Rose acknowledged that when vandals smashed another window in the storefront years earlier, the glazier recommended tempered glass as the best option for a storefront, and she accepted that recommendation. She also testified that there were many times over the years that patrons stood on the couch, as shown in photographs posted on Planet Rose’s social media. Thus, the record presented issues of fact as to whether Planet Rose was negligent in failing to use tempered glass in the window to prevent a foreseeable injury.

Did Patron Assume or Release Risk of Horseback Riding Injury?

Francine Harrison fell off a horse (called “Herman”) at Minieri’s Parkview Riding Center and was dragged with her foot caught in the stirrup, causing her various injuries including a broken femur. Specifically, Harrison claimed the horse was “rooting” (thrusting/pulling, his head down), and that she had received no instructions on how to respond to this dangerous behavior until the accident occurred. Litigation ensued.

Riding Center claimed that it was entitled to summary judgment dismissal because there was insufficient admissible evidence to establish an issue of fact concerning any negligence; Harrison’s execution of the riding instruction agreement and liability release was valid; the action must be dismissed based on the doctrine of primary/express assumption of risk and also based upon the doctrine of implied assumption of risk; and finally, because Harrison failed to establish proximate cause.

Was Village of Saltaire  Liable For Injuries From Fall?

Marcia Ferruzzi sued to recover damages for personal injuries she allegedly sustained when she rode a bicycle off an elevated boardwalk located in the Village of Saltaire and fell to the ground below. The boardwalk, which was reconstructed between 2014 and 2015 in the wake of Hurricane Sandy, runs north to south from the bay to the ocean, and is approximately 2,100 feet long and 14 feet wide. Mario Posillico, the Village administrator and Village clerk, testified at his deposition that the boardwalk was constructed level, but the height differential between the boardwalk and the ground varied approximately 10 to 23 inches in certain locations due to the terrain. There were no guardrails along the sides of the boardwalk.

Ferruzzi testified at her deposition that, on the date of the accident, she and her then-boyfriend were riding bicycles on the boardwalk. Ferruzzi knew the boardwalk was elevated and the visibility that day was clear. They eventually came upon a firehouse, where they stopped so that her boyfriend could put air in the tires of his bicycle. Ferruzzi and her boyfriend then continued riding their bicycles along the boardwalk. A few minutes later, Ferruzzi rode her bicycle off the boardwalk. She explained that, as she was riding her bicycle, she was periodically looking to see if there was anyone next to her and, after glancing to her left, “the next thing I know I was going straight off.” Ferruzzi testified that, from the area of the firehouse to the location of the accident, the boardwalk was level and her bicycle did not hit anything that caused her to ride off the boardwalk.