Estate of Duco v McCabe
Annotate this CaseDecided on October 20, 2009
Supreme Court, Orange County
Estate of Leslie R. Duco, Cori S. Duco, and Steven L. Duco, infants over the age of 14 years, by their father and natural Guardian, Michael Duco, Plaintiff,
against
Matthew L. McCabe, Charles T. Sallee, CSS, Inc., d/b/a California Super Bike School And on One Wheel, Incorporated, Defendant.
4419-07
Rivkin Radler LLP
Attorneys for Defendants
926 Reckson Plaza
Uniondale, New York 11556-0926
Dupee & Monroe, PC
Attorney for Plaintiffs
211 Main Street, PO Box 470
Goshen, New York 10924
Lewis Jay Lubell, J.
This action to recover damages for the wrongful death and conscious pain and suffering of the decedent, Leslie Duco, is brought in connection with an accident which took place on May 22, 2005, while the decedent was operating a motorcycle on the grounds of the Orange County Airport. At that time, Ms. Duco was a student learning to ride a motorcycle on its back wheel (a "wheelie") in a class conducted by defendant On One Wheel Inc. Defendant CSS Inc., d/b/a California Superbike School, is a company allegedly owned by the then owner of On One Wheel Inc. but which, nonetheless, is not alleged to have been involved in happenings at the airport on May 22, 2005.
The decedent's instructor at the time of the accident was defendant Matthew McCage; a second instructor, defendant Charles Sallee, was present at the site, but handling a different group of students.
At the time of the incident, decedent had been a licensed operator of motorcycles for approximately ten years. In addition, she was then working as a salesperson at a Harley Davidson motorcycle dealership after having worked there as an [*2]accountant. Decedent's experience with and ability to properly operate a motorcycle on public roadways is not at issue, nor is the condition of the motorcycle upon which she was being trained, except to the extent that there is an argument advanced as to its customization with a whellie bar (see, infra).
On the morning of Sunday, May 22, 2005 decedent Leslie R. Duco traveled from her home in Langhorne, Pennsylvania, with her boyfriend Joseph P. Dowling to Orange County, New York, to attend a motorcycle wheelie school sponsored by defendant On One Wheel, Inc. The class program was designed for competent motorcycle riders who had not before performed "wheelies". The class was scheduled to be held and was actually conducted on a closed section of the Orange County Airport located in Montgomery, New York. Decedent had enrolled in the class several weeks earlier. The fee for participating in the program was $495.00.
Defendant McCabe's deposition testimony includes the following:
I think people wanted to feel more comfortable on a motorcycle. They want to learn throttle control, which was the major point of our motorcycle school was to teach throttle control, and I think people wanted to feel more comfortable in the situation that if the motorcycle wheelied, they would know what to do.
McCabe further testified that there is no entertainment component to the class and that it is geared to motorcycle safety.
In contrast and to the extent relevant and admissible, Joseph P. Dowling, decedent's boyfriend who was in the same class as decedent and who witnessed the accident, testified that neither he nor decedent were ever involved in any amateur or professional stunt riding events. To the extent admissible, he also testified that the prospect of performing wheelies in an off-road setting on a bike modified for such purpose would be exciting, correctly understanding that it is illegal to perform a motorcycle wheelie on a public roadway (see, VTL §1250[d]).
No instructional material, written tests or training videos were provided to the participants. Nonetheless, defendant McCabe provided them with a verbal run down of the motorcycle and wheelie equipment designed and used by the defendants. An excerpt from defendants' website (Exhibit "C") cautioned the public: "[d]on't be silly, we are talking about motorcycles in extreme situations, of course it isn't safe'". [*3]
Recognizing the enhanced dangers associated with performing a motorcycle wheelie on wet pavement, defendants' written policy includes the following:
We do not run in the rain. If the weather conditions are questionable we evaluate on the day of the school, at the location where we are holding the school - many times we can still run, so plan on being there no matter what. If you do not show up, no matter what the weather does, you are considered a no-show and you will not get a credit or refund. If it turns out we cannot run the school due to bad weather, you will get a full or partial rain-check to be applied towards another school. There are no refunds for rain out days.
Further in that regard, prior to the commencement of class, decedent executed two documents containing releases and waivers of liability. Both are dated May 6, 2005.
The first, entitled, "ACKNOWLEDGMENT OF DANGER AND RELEASE FROM LIABILITY," reads in pertinent part:
I KNOW THAT I MUST READ AND UNDERSTAND THIS BEFORE I SIGN IT, AND MY SIGNATURE ON THIS DOCUMENT MEANS THAT I HAVE READ IT AND DO UNDERSTAND IT.
I KNOW THAT MOTORCYCLE RIDING IS A DANGEROUS SPORT AND THAT PARTICIPATION IN THE ACTIVITIES OR CSS INC. DBA ON ONE WHEEL AT ORANGE CNTY, NY WILL EXPOSE ME TO THE RISK OF SERIOUS INJURY OR DEATH. THIS POSSIBILITY OF INJURY OR DEATH BECAUSE OF MECHANICAL EQUIPMENT FAILURE, MY OWN ACTIONS WHILE RIDING, TRACK AND WEATHER CONDITIONS, THE ACTIONS OR FAILURES TO ACT OF OTHER PEOPLE, INCLUDING THE OTHER RIDERS ON THE TRACK WITH ME, OR ANY COMBINATION OF THESE OR OTHER FACTORS.
I recognize that I may be injured or killed as a result of my own or someone else's negligence, either active or passive or by an equipment failure or the sort which would permit suit against a manufacturer or supplier on a theory of strict (product) liability.
BY SIGNING THIS AGREEMENT, I, LESLEY DUCO, INTEND TO RELEASE, INDEMNIFY, AND HOLD HARMLESS CSS INC., DBA ON ONE WHEEL, INC., ALL OF ITS AGENTS, OFFICERS, EMPLOYEES, LANDOWNERS
AND FACILITY OPERATORS, AND ALL OTHERPARTICIPANTS IN SCHOOL ACTIVITIES FROM ANY LIABILITY FOR ANY NEGLIGENCE WHICH RESULTS IN INJURY TO ME, WHETHER SUCH NEGLIGENCE IS ACTIVE OR PASSIVE. I ACCEPT AND USE ALL EQUIPMENT FURNISHED TO ME BY CSS INC. DBA ON ONE WHEEL INC. `AS IS,' WITH ANY DEFECTS, WHETHER [*4]APPARENT OR NOT. I INTEND TO RELEASE CSS INC. DBA ON ONE WHEEL INC. AND ALL ITS EQUIPMENT SUPPLIERS FROM ANY STRICT OR PRODUCT LIABILITY FOR MY INJURY OR DEATH.
WHAT'S MORE, BY SIGNING THIS AGREEMENT AND PARTICIPATING IN ACTIVITIES AS A STUDENT OF CSS INC., DBA ON ONE WHEEL INC., I ACKNOWLEDGE THAT I AM PREPARED TO TAKE MY CHANCES OF INJURY OR DEATH, AND TO ASSUME THE RISK THAT I MAY BE INJURED OR KILLED WHILE PARTICIPATING IN SCHOOL ACTIVITIES.
To the extent relevant, the second of the documents, entitled "RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT", provides as follows:
In consideration of participating in the CSS Inc., DBA On One Wheel Inc. school I represent that I understand the nature of this Activity and that I am qualified, in good health, and in proper physical condition to participate in such Activity. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participation in the Activity.
I fully understand that this Activity involve risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by my own actions, or inactions, those of others participating in the event, the condition in which the event takes place, or the negligence of the "releasees" named below; and that there may be other risks either not known to me or not readily foreseeable at this time; and I fully accept and assume all such risks and all responsibility for losses, costs, and damages I incur as a result of my participation in the Activity.
I hereby release, discharge, and covenant not to see CSS Inc., DBA On One Wheel Inc., its respective administrators, directors, agents, officers, volunteers, and employees, other participants, any sponsors, advertisers, and, if applicable, owners and lessors of premises on which the Activity takes place, (each considered one of the "RELEASEES" herein) from all liability, in part by the negligence of the "releasees" or otherwise, including negligent rescue operations; and I further agree that if, despite this release, waiver of liability, and assumption of risk I, or anyone on my behalf, makes a claim against any of the Releasees, I will indemnify, save, and hold harmless each of the releasees from any loss, liability, damage, or cost which any may incur as the result of such claim.
The undersigned also acknowledges that the instruction at [*5]this school is done under controlled conditions with certain safety precautions in place. It is further understood that if the stunts taught at this school are attempted or performed at other times and places without these controlled conditions and safety precautions severe and serious injury may occur. As a consequence the undersigned also waives and releases any claims or causes of action they might have against CSS Inc., DBA On One Wheel Inc. for any injuries they might cause or suffer as a result of attempting to perform or performing these stunts outside of the school or its grounds.
I have read this RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion of this agreement is held to be valid the balance, notwithstanding, shall continue in full force and effect.
No questions have been raised regarding decedent's execution and understanding of either of these two documents, nor have either of the parties placed in issue the meanings thereof.
Instruction began at approximately 8:00 a.m. The weather conditions that day are not in dispute. For the most part and to the extent relevant to this motion, the submitted weather reports indicate that it had rained lightly that day from 5:38 a.m. until 6:18 a.m. and from 11:22 a.m. until 11:59 a.m. Light rain again fell from 1:06 p.m. until 2:03 p.m., followed by heavy rain from 2:03 p.m. until 2:12 p.m. The high temperature was near 56 F and the low temperature was near 47 F.
The accident is alleged to have taken place sometime after 1:00 p.m. upon decedent's second run on the motorcycle. While attempting to come off of a 2 to 3-inch high wheelie during which the front wheel was turned on a angle, the decedent lost control of the motorcycle and fell to the ground sustaining injuries that would eventually take her life. There is conflicting evidence before the Court as to whether the roadway was wet at the time of the accident and even whether it was raining at the precise moment of the accident. However, there is no expert proof before the Court in admissible and competent form which attributes the accident to the weather or the condition of the roadway at the time of the accident.
Following decedent's death, defendant McCabe pleaded guilty in the Town of Montgomery Justice Court to a violation of Vehicle [*6]and Traffic Law §394(2), which provides:
No person shall engage in the business in conducting a drivers' school without being the holder of a license for such purpose issued by the commissioner. . .
Defendants argue that the action must be dismissed since decedent assumed the risk of the activity in which she engaged. Dismissal is also sought on the basis of contractual liability waiver. The Court will address the latter issue first.
The initial question to be decided is whether defendants have come forward with a prima facie showing that the releases signed by the decedent are not void under General Obligations Law §5-326. Section 5-326 of the General Obligations Law provides:
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable [emphasis added].
Upon rendering such a determination, the Court's inquiry should not be whether decedent's activity was recreational or instructional in nature, rather the court must focus on whether the nature of defendants' purpose was one or the other (Debell v. Wellbridge Club Management, Inc., 40 AD3d 248, 249 [1st Dept., 2007] citing Lemoine v. Cornell Univ., 2 AD3d 1017, 1019 [1st Dept., 2003] lv. denied 2 NY3d 701 [2004]).
Section 5-326 applies to situations where there is a promotion of a recreational pursuit in connection with which instruction is provided as an "ancillary service" even when the injury occurs during the instructional aspect of the activity (Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175 [1st Dept., 2000]). A facility's instructional or recreational nature may be discerned upon examination of such things as an "organization's name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility" (Debell v. Wellbridge Club [*7]Management, Inc., supra, citing Lemoine v. Cornell Univ., 2 AD3d 1017, 1019).
Here, defendants have come forward with sufficient proof in admissible form establishing that the runway defendants leased to conduct classes was used for instructional, not recreational or amusement purposes (Boateng v. Motorcycle Safety School, Inc., supra, citing Lemoine v. Cornell Univ., 2 AD3d 1017, 1018-1019 [3d Dept., 2003], Baschuk v. Diver's Way Scuba, 209 AD2d 369, 370 [2d Dept., 1994]). Defendants have also established upon their motion that the fee paid by the decedent constituted tuition for the course of instruction as opposed to a fee for the use of a recreational facility within the meaning and contemplation of the statute (id.).
In response, however, plaintiff has failed to raise any triable issue of fact in those regards (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).
Upon reaching its determination, the Court has considered all arguments advanced by plaintiff but has rejected same including plaintiff's argument that the prohibition on performing a motorcycle wheelie on public roadways (see, VTL §1250[d]) precludes a finding that the nature of defendants' purpose is anything other than instructional. While the Court can very well envision circumstances where public policy grounds might very well bar the Court from even recognizing the subject matter of the asserted instruction, this is not such a circumstance. At the very least, there seems to be no argument that a person completing this program is, in the end, better equipped to operate a motorcycle within the confines of the law. Secondly, the prohibition on performing a wheelie is a mere traffic infraction. Finally, there is no suggestion that participants are instructed on how to evade the law.
The Court also finds unpersuasive plaintiff's assertion that the unlicensed nature of the motorcycle school warrants a different result (see, VTL §394[2]). Among other things, there is no showing in the papers now before the Court that such a violation relates to anything other than the lack of authority to act, instead of the manner in which defendants allegedly acted (see, Firmes v. Chase Manhattan Automotive Finance Corp., 50 AD3d 18 [2d Dept., 2008]; Almonte v. Marsha Operating Corp., 265 AD2d 357[2d Dept., 1999][absence of driver's license relates only to the authority for operating a vehicle, not its manner of operation], citing Hanley v. Albano, 20 AD2d 644, 645 [2d Dept., 1964]). [*8]
Nor is the Court persuaded that a contrary result is warranted due to the one-day nature of the program and lack of written tests, instructional material or a training video. The fact that the location of the school is not held at the same location is equally unavailing, as is the contention that the participants were not individuals already trained as stunt riders.
Having found merit to defendants invocation of decedent's express waivers and release, the Court need not rule on the remaining ground for dismissal, assumption of risk.
Nonetheless, the Court notes in that regard that, whether or not decedent assumed the risk of attempting to perform a wheelie on wet pavement or even in the rain, defendants have not come forward in the first instance with proof in admissible form (perhaps necessarily by way of expert proof) that the assumption of risk attendant to riding a motorcycle in the manner intended is the same as riding the subject motorcycle, as was modified with its wheelie bar and otherwise (see, Owen v. R.J.S. Safety Equip, 169 AD2d 150, 155 [3d Dept., 1991] affd, 79 NY2d 967 [1992][question of fact as to whether experienced auto racer should be deemed to have assumed an enhanced risk of injury above what is ordinarily attendant to auto races]).
Based upon the foregoing, it is hereby
ORDERED, that defendants's motion to dismiss is hereby granted for the reasons herein stated.
The foregoing constitutes the Opinion, Decision & Order of the Court.
Dated: Goshen, New York
October20, 2009
_____________________________
HON. LEWIS J. LUBELL, J.S.C.
TO:
[*9]
Rivkin Radler LLP
Attorneys for Defendants
926 Reckson Plaza
Uniondale, New York 11556-0926
Dupee & Monroe, PC
Attorney for Plaintiffs
211 Main Street, PO Box 470
Goshen, New York 10924
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