By Doyice Cotten
Suzanne Rivera competed in a bicycling race organized by Velo Promo, LLC and USA Cycling, Inc. During the race, she struck a support van parked in the lane of the road designated for the cyclists on a downhill, curved section of the course. She was killed. The heirs sued defendants Velo Promo, USA Cycling and Richard Ciccarelli (the driver of the support van) alleging negligence (and gross negligence).(Rivera v. Velo Promo, LLC, 2018).
The trial court granted summary judgment in favor of the defendants. Since the waiver signed by the decedent protects the defendants against liability for negligence, but does not protect against gross negligence, the issue faced on appeal was to determine whether the conduct of the defendants constituted gross negligence.
The Alleged Facts
The race was an “‘[o]pen course'” race in which the road was not closed to other vehicular traffic. The decedent signed the USA Cycling waiver form. The riders were placed in different heats based on skill and experience levels and about two minutes was allowed between heats. The president of Velo Promo realized he needed a support vehicle driver; he assigned Ciccarelli to drive a support vehicle about 20 minutes before the race.
Roughly three miles into the race, in a curved downhill section of road, a cyclist signaled to Ciccarelli that she needed assistance. Ciccarelli stopped, provided assistance, and the cyclist rejoined the race. Soon thereafter, the cyclist again experienced problems and signaled for assistance. Ciccarelli stopped the support van in the lane of travel less than 200 feet past a curve and on a section of road with a 9 percent downhill grade and prepared to assist the rider with a change of tire. He did so inside the blind curve unaware of the two-minute interval and that he could have pulled off of the road and stopped safely a relatively short distance ahead.
Before Ciccarelli could finish assisting the rider, cyclists from decedent’s heat approached at speeds nearing 40 miles per hour. In order to avoid the support vehicle, many riders crossed the double yellow lines in the road and entered the opposing lane of traffic. Decedent was unable to avoid the support van, crashed and fell to the ground. Despite efforts otherwise, at least one other cyclist ran over decedent while she was lying on the roadway. Decedent died as a result of her injuries shortly thereafter.
USA Cycling Rules
Plaintiffs claimed that the defendants failed to follow the rules of USA Cycling including the following
(1) the race director shall be responsible for specifying and directing the general aspects of the race and shall take acts reasonably necessary to promote the safety of participants and spectators.
(3) feeding stations and repair pits shall be located at points wide enough to allow passage of riders with one clear lane at all times.
(4) support vehicles should be less than 1.6 meters in height.
(6) should a support vehicle need to stop, it shall always pull off the road on the right side.
(7) no supplies may be provided or sought from a vehicle during a hill climb or on dangerous bends or descents.
In addition, a 2012 USA Cycling notification made other recommendations.
(1) The memo advised not to use last-minute volunteers for support vehicle drivers, and that “[y]our drivers hold the riders’ lives in their hands” and must be experienced both at driving a vehicle and driving a vehicle around cyclists.
(2) The memo further states that driver’s licenses and insurance should be checked before the race, and that the drivers should be trained in their jobs.
Deposition of Manager/Owner of Velo Promo, Robert Leibold
Leibold testified that all of the bicycle races that Velo Promo operates are held under permit from USA Cycling and follow the USA Cycling rules, including the race at issue here. He stated that
- he selects support drivers, but did not have a direct role in training or supervising the drivers to ensure that they comply with the USA Cycling rules.
- Liebold decided to have Ciccarelli drive the support vehicle about 20 to 30 minutes before the start of the event.
The Support Vehicle Driver’s Testimony (Ciccarelli)
- He said that when a support vehicle stops for a rider, the vehicle should be pulled as far off of the road as possible.
- He noted not to park in tall, dry grass to prevent starting a fire.
- He was not aware of a rule stating the practice, in his experience, support vehicles stopped as close as reasonably feasible to the cyclist needing assistance.
- He was not aware of any rule from USA Cycling or Velo Promo to not provide supplies from a vehicle on dangerous bends or descents.
Testimony of a Co-Participant
Gale De Rosa testified that the section of the road where the incident occurred was a double yellow zone, which prohibited passing due to the lack of visibility from the blind turn. She said that when she saw “the support vehicle parked in the road, she shouted a warning . . . . She had about two to three seconds from the time she saw the support vehicle to the time she passed it.”
Testimony of Bicycle Safety Consultant John Howard
Howard, a bicyclist safety consultant, stated that support vehicles should always pull off of the road to stop. Further, he added that supplies should never be provided during a hill climb or descent because of the limited visibility in such locations. He pointed out that the support vehicle exceeded the recommended height of support vehicles. He stated that it was imperative that “the support vehicle driver to know the interval time separating each category of riders so that they know when to expect the next category to approach” and added that it is the custom for support vehicles to operate with lights and flashers on.
It was Howard’s opinion that event management violated many of the 2012 USA Cycling Rules, including
- failing to train the driver of the support vehicle to pull off of the road to stop,
- failure to instruct the support vehicle driver not to stop and park on a descent,
- failure to instruct the support vehicle driver not to stop after a blind turn,
- failure to ensure that the support vehicle’s flashers were being used during the race,
- ignoring that the support vehicle driver was not familiar with the USA Cycling rulebook,
- failure to train the support vehicle driver on the course design,
- ignoring whether the support vehicle was of the recommended dimensions,
- failure to train the support vehicle driver where on the course repairs could be provided,
- failure to inspect whether the support vehicle driver had a clean driving record,
- failure to inform the support vehicle driver of the interval time between categories of riders,
- failure to train the support vehicle driver where supplies could be provided or sought from the support vehicle,
- and failure to train the support vehicle driver to follow the rules of the road.
Howard concluded that the conduct of the race was an extreme departure from the standard of conduct of race operators, which unnecessarily increased the risks of the participants of the race.
Negligence and Gross Negligence
The court used previous citations to show the distinction between ordinary negligence and gross negligence. It stated that ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” In contrast, for an act to be gross negligence, there must be either a ”want of even scant care” or ”an extreme departure from the ordinary standard of conduct”.
The Waiver of Liability
The court pointed out that a waiver or release of liability, best characterized as an express assumption of risk, negates the defendant’s duty of care, an element of the plaintiff’s case…. “The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” The same is not true when the charge is gross negligence – the waiver does not relieve the defendant of the duty and, hence, does not protect the defendant.
The role of the court in this case was not to determine if Velo Promo, LLC was grossly negligent, but only to decide if there was sufficient evidence so that a jury might determine that the conduct of the race was grossly negligent.
The court presented more details and more discussion, but ultimately decided that the evidence was sufficient. It overturned the summary judgment ruling and sent the case back for trial. (Click here to for the complete report.)
The court issued a separate report for the claim against USA Cycling, which is not discussed here.
This case provides us with a great description of how NOT to organize a bicycle race. Event organizers can identify many management pitfalls in this case.
Photo Credit: Thanks to Alan Light via Flickr.