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Viggiano v. State of New York, 262 NYS 2d 152 (1965). January 5, 1959, a bicyclist was riding at 1:00 pm on the left shoulder of a highway. She was coasting down a grade, hit an accumulation of sand and gravel, skidded, lost control and fell. She fractured her hip. The Court of Claims of New York granted the defendant's motion for dismissal. From the court's opinion: "When read together, these provisions [statutes establishing "rights and duties of drivers of vehicles," "ride as far right as practicable," and the definition of a roadway as the portion improved for vehicular travel exclusive of the berm or shoulder] establish that the proper position upon a roadway whereon to operate a bicycle is at a point on the extreme right but not upon the shoulder, traveling with the traffic. In such a position the cyclist has a right to find the roadway in a reasonably safe condition, free of debris or defects, and may cast the municipality charged with control in damages for any injuries he suffers as a result of a failure so to maintain provided, of course, the other elements of the cause of action are established.
"It is true that the statutes cited do not forbid travel on the shoulder; in this sense they are directory rather than mandatory. ...
"Since essentially similar provisions govern vehicular use of roadways ... an analogy may be drawn from the court's analyses of the liability flowing from injuries to automotive vehicles and their drivers proximately caused by shoulder defects. In this jurisdiction the law is well settled. Liability for defects attaches only when operation of a vehicle on the shoulder rather than on the pavement is a reasonable recourse because of some emergency or special condition. ... No showing that an emergency or special condition confronted Mrs. Viggiano has been made. It follows that the defendant was under no duty toward this claimant the scope of which included the removal of debris from the shoulder involved." |
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