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Vinikoor v. Pedal Pennsylvania

June 4, 2009

M. PAUL VINIKOOR, APPELLANT
v.
PEDAL PENNSYLVANIA, INC. AND DEPARTMENT OF TRANSPORTATION



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: May 5, 2009

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Paul M. Vinikoor (Vinikoor) appeals from an order of the Court of Common Pleas of Blair County (trial court) which denied the motion for summary judgment filed by the Department of Transportation (Department) but granted the motion for summary judgment filed by Pedal Pennsylvania, Inc. (Pedal).*fn1 We affirm.

Vinikoor commenced this action by filing a writ of summons on July 17, 2006. In the negligence action, Vinikoor sought to recover damages resulting from a bicycle accident which occurred while he was participating in a tour organized by Pedal. Vinikoor alleged in his complaint that his bike's right front tire became locked in a groove on a public roadway. As a result, Vinikoor's bicycle was trapped and Vinikoor was unable to steer, causing him to fall from his bicycle. Vinikoor suffered injuries including a central dislocation of his right pelvis and a loss of cartilage in that joint.

Vinikoor asserts that Pedal was negligent, in that Pedal represented to Vinikoor that the route was safe when in fact there was a hidden danger, consisting of a curved groove on the roadway. Additionally, Vinikoor alleged that Pedal failed to make an inspection of the route, or alternatively, failed to notice the defect in the road during its inspection, and thus failed to provide a safe route. Vinikoor alleged that Pedal assured Vinikoor that it had inspected the route and that it was safe. Additionally, Vinikoor was provided a cue sheet and route description, which noted cautions at certain locations where there were dangers. A caution was not noted at the intersection where the incident occurred. Vinikoor also alleged that Department was negligent with respect to construction of the road in the area where the fall occurred.*fn2

Pedal filed an answer and new matter. In the new matter, Pedal asserted that Vinikoor's claims were released and discharged based upon a release signed by Vinikoor prior to the tour. Additionally, Pedal claimed that it had no duty to Vinikoor and that Vinikoor had voluntarily assumed the risk. Department also filed an answer and new matter. Vinikoor replied to all new matters.

Thereafter, both Pedal and Department filed motions for summary judgment. Pedal maintained that it was entitled to summary judgment because Vinikoor signed an exculpatory clause barring all claims against Pedal. Additionally, Pedal claimed that Vinikoor voluntarily assumed the risk and that it had no duty. Department filed a similar motion.

The trial court set the matter down for a hearing. According to Vinikoor's deposition, he was an experienced bicyclist who had been on numerous bicycle tours. The tour at issue, organized by Pedal, was a week long bike tour covering over four hundred miles. Vinikoor had previously been on a tour organized by Pedal. In his complaint and in his deposition testimony, Vinikoor claimed that he was assured by Pedal that the route had been inspected and was safe. Further, Pedal provided Vinikoor with a cue sheet and route description, which included detailed directions and noted cautions at various locations where there were dangers. No caution was noted at the intersection where the accident occurred.

Prior to participating in the tour, Vinikoor voluntarily signed a waiver form drafted by Pedal. In his deposition, Vinikoor testified that he was of sound mind when he signed the release and understood what he was signing. The release provides, in pertinent part, as follows:

Waiver Form

Waiver, Release and Consent Please read, sign and return with your entry.

You cannot ride without a signed waiver.

I hereby waive and discharge Pedal Pennsylvania, Inc. and any organizations associated with this event (including but not limited to municipalities, colleges and universities, high schools, sponsors, and any employees or associates thereof), from all liability as a result of my participation in Pedal Pennsylvania, whether caused by negligence or otherwise.

I understand that accidents, with fatalities, serious bodily injury and/or property damage can occur during bicycle touring, as a result of negligence or otherwise. Knowing the risks involved I nevertheless agree to assume those risks and to release all of the persons or entities mentioned above for any injury, death, illness or property damages occurred [sic] on this tour or in the travel to and from this tour. I ...


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