Dobert v. State of New York seems like a typical assumption of risk case. In the case, a bike rider fell off a bike while riding on a rough roadway in a public campground. The bike rider alleged that a depression in the road — which she admitted was open and obvious — caused her to fall off the bike and injure herself. The Appellate Division, Third Department agreed with the Court of Claims’ dismissal of the bike rider’s action based on the conclusion that the rough conditions were a commonly appreciated risk in particpating in such recreational activity.

The decision, by no means, contradicts assumption of risk case law; however, what if the plaintiff was walking and tripped over the same alleged defect? Under the Third Department’s open and obvious premises liability case law, wouldn’t the State still have a responsibility to keep the premises in a reasonably safe condition? (see prior “open and obvious” post).