What if a man is riding a bicycle during the middle of the day and he crosses a train track, where two metal plates have moved apart and create a crevice parallel to the riding path. The man’s bike tire goes into the crevice and flips the bike forward causing a fractured jaw, cuts on the face and shoulders. There was no warning sign of the crevice because it’s not being maintained properly.
Later on the company fills in the crevice with cement as proof that the crevice was dangerous and the fault of the rail road company and/or the construction company they contract out for not maintaining the different road passes.
However the man has smoked marijuana before riding the bike.
Who is seen as being at fault? Should the man have seen the crevice because it’s daylight? There were also cars following the man so it’s possible he looked behind just at the wrong time to not see it.
Instead of ending with a settlement the railroad/construction company want to take it to trial like they have some kind of strategy.
How would they think they could win the case against the man while having an extremely dangerous crevice on their track that’s the size of road bike tires? If that was safe then it would be built like that and they aren’t built like that, the metal plates were originally together which is safe.
As I recall, lack of maintenance of a public surface is actionable only if the responsible party can be shown to have known about the defect and failed to remedy or provide a warning in a timely manner.
IIRC, the law doesn’t work that way, and your post is the reason why: we don’t want people to (a) consider taking steps that would make something safer, only for them to then (b) refrain from making those improvements because, gosh, that could be used as damning evidence against us in just such a case.
IANAL, but the man is crossing private property by allowance of the owner on a public path. The crossings meet a certain local maintenance standard. Sucks to be him.
Yeah, the OP seems to be going to many convolutions for that scenario. The guy riding the bike needs to be more careful, that’s all.
This actually happened to me when I was a teenager. I used to ride my bike all over our small town. One day I was riding briskly along and veered into a bank’s parking lot. I forgot about the drainage grate that was right there, my front tire fell right into it between the bars and I went flipping over the handlebars. I wasn’t injured, luckily, except for my pride. It did “taco” the wheel, though, so I had to walk the bike home. C’est la vie.
This would be a bit different, in that it is expected that you should be able to cross rr tracks without crashing, drainage grates in parking lots have no such guarantee. Not saying that this would make the case for the OP, but it is a bit stronger.
(BTW, I’ve done the same thing, only worse on the pride. Riding along with a friend on either side, chatting with them and not really paying attention, until my front wheel goes into the grate and I go flying over my handlebars in mid-sentence.)
I vaguely remember a similar case in the Chicago burbs a few years back (DuPage Cty?) IIRC, the biker was riding a road, where a bridge was under construction and had the type of gaps that would catch a bike tire. He was injured, but the court held something along the lines that the road need not be maintained in a manner to be safe for bikes, only for cars.
Sorry I don’t have a cite. It was likely a local circuit court. No idea if it was appealed. But it struck me as problematic when I read about it.
Per the Federal Rule of Evidence 407 found here: (I think, but do not know, that many states have a similar rule)
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
