Bike Clubs - Legal Issues
Managing Risk and Responsibilities for Cycle Clubs and Race Organizers
By Daniel Flanzig, Esq
. New York Cycle Lawyer
A friend of mine recently asked for my help in identifying issues of liability
for an indoor cycling event she and some others were organizing for a
charity event in New York. They wanted to know what they should do to
protect themselves from liability if someone got hurt at the event. She
reached out to me because she knew that I am not only a cyclist, but also
an attorney who has represented injured cyclists. I was happy to provide
some guidance for the event and its organizers. I am now also planning
on becoming a sponsor and a participant.
This inquiry made me realize that as these indoor events known as "spin-athons"
grow, there is little guidance for sponsors, clubs, and race organizers
available. I decided to write a short guideline on this issue. I must
warn the user of this article that this is merely a guide, and it should
not be used in lieu of contacting a competent attorney, insurance agent,
or risk management consultant. Each event and each jurisdiction is specific,
and the risks, liabilities, and needs of coverage will reflect that.
One of the easiest things to do is to incorporate. The most simple of corporations
can be formed by online services, requiring little to no work from you!
The more complicated corporation formations will require the use of an
attorney and accountant. By forming a corporation, LLC, or Not-for-profit,
you can protect yourself from personal liability. The choice of which
of these entities to form is a decision that more than likely will require
the assistance of a professional.
Even with the most perfectly drafted waiver, and the law on your side,
it is just a very dangerous idea to run an event or race without having
a policy of insurance to protect you or your club. Also, if a member of
the club, a participant, or an innocent bystander is injured, the insurance
allows them a method to be compensated. It will also provide you with
protection if a member of your club or race participant injures a bystander.
I cannot over emphasize the need to have a policy in effect.
In a case called
Gortych v. Brenner, Gortych was a cyclist riding in Central Park on a morning that the New
York Triathlon Club was holding a race. One of the participants collided
with Gortych, causing injuries. Gortych sued the Club and the City of
New York for not properly warning people about the event, and for failing
to clearly mark a race lane, although the park was open to the public.
The Court found that Gortych did not assume the risk of injury (see below
for more on this) by riding while the event was going on, and allowed
the case to proceed. It also found that the club must indemnify the City
for the accident. Below, I will discuss the topic of indemnification.
Indemnification and additional insured's-
When a club or sponsor holds an event on another's property or space,
they will almost always require, or at least they should be required to,
purchase a policy of insurance, and name them as an additional insured.
This means that you purchase insurance for them, to protect them from
any claims. In addition, the contract or agreement between you and them
will most likely, or again it should, require you to provide contractual
indemnification. This means that if they get sued, and a plaintiff wins,
you are obligated to pay that person. Most applications, permits, or rental
agreements will contain language such as you agree "to indemnify
and hold harmless the City, the landlord, or department from any and all claims
whatsoever that may result from such use." By purchasing a proper policy of
insurance and naming the landlord or city as an additional insured, you
can protect yourself from claims of indemnification or contribution.
A properly drafted and properly executed waiver of liability can be a very
strong defense for a sponsor, cycle club, or event organizer hoping to
protect him or herself from liability. The waiver should be clear, unambiguous,
and should have the participant acknowledge the known risks of the event.
Minors must have a release signed by a parent or legal guardian. If the
participant only speaks a language other than English, the release must
be translated. The participant must have the mental capacity to understand
the release language.
In a case called
Tedesco v Triborough Bridge & Tunnel Auth., Tedesco, a cyclist, was injured on the Verrazano Narrows Bridge, during
the Five Borough Bicycle Tour. The Court held that the release Tedesco
signed was enforceable. Similarly, in
Brookner v New York Roadrunners Club, Inc., Brookner sustained injuries in the 2004 New York Marathon while running
on a Brooklyn street. Prior to the race, Brookner signed the club's
waiver of liability, acknowledging the risks, and releasing the Road Runners
Club from any liability. The Court held the waiver enforceable, and Brookner
assumed the risk of injury by participating in the event.
Assumption of Risk Defense-
In New York State, one who knowingly engages in an activity or event with
a known risk of injury, is barred from bringing a lawsuit for an injury
that occurs due to a risk inherent in the sport or activity. For instance,
a player hit with a hockey puck during hockey game, or a pitcher being
struck by a baseball hit from a batter assumes those risks when choosing
to participate in the event. The court recognizes that risks involved
with sporting events are incidental to a relationship of free association
between the sponsor and the participant, and that both parties are perfectly
free to participate or not participate in the event as he or she wishes.
The sponsor is only obligated to make the conditions of the event or race
as safe as they appear to be. If the risks of the activity are fully comprehended
or perfectly obvious, the participant has consented to them, and the sponsor
owes no more duty.
In a case called
Conning v. Dietrich, cyclist Suzanne Conning, a resident of Brooklyn, fell off a bicycle while
participating in a triathlon training ride on Route 28, a designated state
bicycle route, in Ulster County. She encountered some uneven payment along
the edge of the road, lost control of her bike, and fell. After her fall
she was struck by an automobile. Ms. Conning had been training with her
club intensively for two upcoming triathlons, which she planned to enter.
As a result of her accident, she sued, among others, the Brooklyn Triathlon
Club (BTC), which organized weekend trips to allow triathletes, such as
Conning, to train for upcoming events. She also sued John Stewart, the
man who BTC designated to lead its cycling training the weekend of Conning's
accident. Ms. Conning also sued Dietrich, the driver and owner of the
car that struck her. Under the doctrine of Assumption of Risk, the Court
dismissed the case against BTC and Stewart. The Court ruled that Conning,
an experienced cyclist, assumed the risk of injury, and executed a waiver
and release of liability (see below for more on waivers). Thus, she could
not maintain a claim against these two defendants. The court did, however,
allow her to proceed her claim against the car that struck her.
Using this analysis, a rider struck by a car during a sponsored ride assumes
the risk of injury of being in this type of accident. The rider may have
a case against the car, but a weaker case against the sponsor of the ride.
However, if the sponsor creates an unknown or excessive risk, such as
riding in exceedingly dangerous road conditions, you may have a stronger
case against the sponser or club.
If you can't sue the club or sponsor, who can you sue?
Although the event sponsor, cycle club, or organizer may escape liability
for the participant's injury, the injured cyclist or other participant
may still have a lawsuit against some other party who caused his or her
injury. For instance, the cyclist may still bring a claim against the
car that struck him or her, the municipality or city that caused the road
defect, or any other person or entity that caused his or her injury. The
club or sponsor should be aware that if that occurs, the defendant may
assert a counter-claim, alleging that if he or she is responsible to pay
for the injury of the participant, then you or your organization should
share in the liability and damages, if you contributed to its cause. The
theory is that this defendant (such as the car or municipality) did not
waive the right to sue, so if they are found responsible, a jury should
be allowed to consider whether you contributed to the damages.
Above is a brief guideline for some issues that may confront cycle clubs,
event organizers, and race organizers and a look at how to protect you
and your club. For more information on this and other cycling issues please
visit our website, NewYorkBikelawyer.com, or our Blog NYCyclelaw. For
other personal injury issues, visit Flanziglaw.com.