Thomas Gelwicks Law Office
Accident & Injury Law
Blue Ash | Cincinnati
Free Initial Consultation
Call 513-421-6688
or submit your case for review
Free Initial Consultation
Call 513-421-6688
or submit your case for review
Empowering Lawyers
When a court is interpreting a statute, the question is not what did the General Assembly intend to enact – but what is the meaning of that which it did enact.
The risk of crashing into a bicycle on a trail is generally regarded as a foreseeable and customary risk. It is part of the package of risks inherent in the recreational activity of bicycling.
The limitation of liability for negligence during recreational activities is based on the notion that some risks are so much a part of an activity that the risks cannot be eliminated. By choosing to participate in such an activity, the participant implicitly accepts these risks. For a fuller treatment, see Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St. 3d 427, 431, 659 N.E. 2d 1232.
The exception is if the plaintiff can show that the other participant’s actions were either reckless or intentional.
The definition usually accepted by the Ohio courts can be found most authoritatively in Sections 500 and 8A of the Restatements of Torts 2d. This rule has its genesis in the doctrine of primary assumption of risk. It’s based on the rationale that a participant to a sporting event or recreational activity accepts the risks associated with the activity.
Studies underscore that the number of motorcyclists in the US has grown over the past 5 years. It is also worth noting that the average age of motorcyclists (do not call them “bikers”) has risen. Now nearly 100,000 motorcycle riders are seriously injured each year. That this number is increasing is not surprising.
When representing motorcyclists, it is wise to learn the fundamentals of motorcycle function. If proceeding to trial then it will likely be necessary to retain a motorcycle expert. The trier of the fact must become basically knowledgeable with motorcycle handling. First and foremost, they are not small cars and do not operate like them.
The general rule is that a political subdivision is immune from liability incurred in performing either a governmental function or a proprietary function. A careful review of RC 2744.02 (A) (1), (B), 2744.03 is necessary.
The immunity is not absolute. It is subject to statutory exceptions and defenses.
Defense counsel can be expected to argue that the political subdivision legitimately exercised its judgment discretion in how to use its resources.
Through investigative work you can often uncover evidence that the subdivision, in fact, used its discretion in a wanton or reckless manner. For example, in a negligent foliage claim involving leaves obstructing a STOP sign, did the defendant municipality have a formalized vegetative maintenance program? Was there reasonable compliance with the implementation of their own protocol?
