IMMUNITY / NEGLIGENCE

Foster v Kinchen, Wells & Farm Bureau Insurance Company, 2016-0544 (La. App. 1 Cir. 3/29/17), - So.3d -, presents the narrow legal issue of whether a drunk bicyclist’s suit is barred by LSA-R.S. 9:2798.4 which provides immunity for damages suffered by persons operating a “motor vehicle, aircraft, watercraft or vessel” while under the influence of alcohol. According to the First Circuit in Foster, the immunity statute does not apply and the intoxicated cyclist can speed forward with his suit.

In Foster, the plaintiff / bicyclist filed suit after he was hit by a pickup truck. Post-accident blood work revealed that the plaintiff had a blood alcohol content of .084%. Defendants filed a motion for summary judgment contending that plaintiff was precluded from recovery as a result of the immunity provided by LSA-R.S. 9:2798.4. This motion was granted. Plaintiff appealed arguing that the statute was inapplicable because a bicycle is not a “motor vehicle” as referenced in the statute.

Defendants cited to statutory authority which provides that “every person riding a bicycle shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle” and argued that “there should be no difference between bicycles and motor vehicles under the law.” Defendants further pointed to the Title 32 definition of “vehicle” which includes bicycles and even “ridden animals” as “vehicles.”

The Foster court rejected the defense arguments and ruled for plaintiff as a matter of statutory construction. Because a motorized bicycle is excluded from the definition of "motor vehicle,” a fortiori, a non-motorized bicycle is also excluded.