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PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined plaintiff, an experienced motocross rider, assumed the risk of injury when using defendant’s motocross track. Plaintiff alleged a pothole where riders landed after a jump was filled with a talcum-powder-like substance which caused him to lose control of the bike. The majority concluded plaintiff was aware of the risk associated with the material used to fill the pothole:

Considering that Fritz [plaintiff] testified that on both jump landings the back end of his bike “kicked up,” that he hit the same pothole and that he had to work to recover the bike, we are satisfied that he was aware of the potential for injury on that jump’s landing … . Fritz v Walden Playboys M.C. Inc., 2023 NY Slip Op 03524, Third Dept 6-29-23

Practice Point: Here plaintiff testified he was aware that some aspect of a jump-landing area of the motocross track caused him to lose control of his bike briefly in a prior practice run but he did not investigate. The majority concluded he therefore assumed the risk associated with a pothole filled with talcum-like powder in the landing area. Plaintiff lost control of the bike in the area of the filled pothole on his second jump.

 

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