New York State Court of Claims

New York State Court of Claims

DOBERT v. THE STATE OF NEW YORK, #2003-032-105, Claim No. 105068, Motion Nos. M-66774, CM-66862


Doctrine of primary assumption of risk bars a claim in which defendant met its obligation to make a park roadway as safe as it appeared to be and where claimant was injured by a "known, apparent or reasonably foreseeable consequence of participation" in the sport of bicycle riding.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Napierski, Vandenburgh & Napierski, L.L.PBy: Alison M. Pavlakos
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
October 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on July 16, 2000, when claimants were camping at Rollins Pond Campground near Tupper Lake. This campground is owned and operated by the New York State Department of Environmental Conservation (DEC). On the day in question, Dianne Marie Dobert[1] was riding a bicycle on a campground roadway when the bicycle's front tire struck a "defective condition in the roadway" (Claim, ¶5), causing her to fall to the ground and to be injured.

The alleged defect was caused by repair work that DEC had carried out in 1990 or 1991, when a water line was placed under the already completed roadway. The rut or depression is visible. Attention is drawn to the strip across the road by a platform and railing type structure directly next to the depression on one side of the roadway, apparently put there to protect the water line (see, Pavlakos affidavit, Exhibit C [photographs]). At her examination before trial, claimant described the roadway as "rough macadam" (McGown affirmation, Exhibit A, p. 9) and the alleged defect as a "break in the road," which was approximately two to three feet wide and went across the entire width of the road (id., p. 19). It was located eight to ten feet down a long slope. When claimant saw this strip of different pavement ahead of her, she applied her brakes in order to slow down. Nevertheless, when she came upon it, she was "thrown" from the bike (id., p. 24; see also, affidavit of Dianne Marie Dobert, contained in Pavlakos affidavit). The central issue presented by these cross motions for summary judgment is whether this accident fell within the risks assumed by one who engages in the sport of bicycle riding.

In Weller v Colleges of the Senecas (217 AD2d 280 [1995]), the Fourth Department explained assumption of risk as follows:
There are two distinct doctrines of assumption of risk. The first is not an absolute defense, but rather, is based on comparative fault and reduces the recovery of plaintiff in the proportion that his culpable conduct contributed to the accident. The second, primary assumption of risk, is based on principles of duty and is a complete bar to recovery.
(id., at 283 [citations omitted].) It is the second type, primary assumption of risk, that is at issue here. Under this doctrine, persons who voluntarily engage in sporting activities and who are aware of the risks inherent in such activity are deemed to have consented, by their participation, "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (Turcotte v Fell, 68 NY2d 432, 439 [1986]). In connection with such activities, a landowner's duty is "to exercise care to make the conditions as safe as they appear to be [for if] the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (id.).

The burden of proving that a particular risk has been assumed is carried by the party claiming that it has been absolved of any duty, here the State, and the question will raise a factual inquiry "unless there is no real controversy as to the facts" (Arbegast v New Berlin, 65 NY2d 161 [1985]). According to defendant, riding a bicycle carries the obvious and inherent risk that the rider may fall. While this is undoubtedly true, the analysis is not quite so simple. For the doctrine to apply so as to foreclose liability, the injured party has to be voluntarily participating in a sporting or entertainment endeavor and the injury-causing event must be a "known, apparent or reasonably foreseeable consequence of participation" in the endeavor (Turcotte v Fell, 68 NY2d at 439, supra). It is not necessary that the injured parties foresee the exact manner in which their injuries occur, but each must "be aware of the potential for injury of the mechanism from which the injury results" (Maddox v City of New York, 66 NY2d 270, 278 [1985]).

It has been held that bicycle riders did not assume the risk of encountering a tree root jutting up into what appeared to be a well traveled pathway (Weller v Colleges of the Senecas, 217 AD2d 280, supra); or a concealed gap between a flat surface and adjoining inclined ramp (Torres v City of New York, 271 AD2d 306 [1st Dept 2000]; or a chain or wire suspended across a park trail (Sauray v City of New York, 261 AD2d 601 [2d Dept 1999]. On the other hand, the defendant landowners have been found to be absolved of all liability where bicycle riders have been injured due to loose gravel on the shoulder of a road, which was present and plainly visible and which the rider had traversed for some distance prior to his accident (Kensy v Village of Southampton, 206 AD2d 506 [2d Dept 1994]) or due to hitting a brick while riding through an area known as the "Brick Yard," an area where the injured party had ridden "a bunch of times"and that contained thousands of bricks strewn around the grounds and trails (Lupica v State of New York, UID #2000-019-530, Claim No. 98714, Motion Nos M-61979, CM-62228, August 28, 2000, Lebous, J.). Factors to be considered in determining whether an individual has fully assumed the risks of a particular injury include the openness and obviousness of the risk, the participant's background, skill and experience; the participant's conduct under the circumstances; and the nature of the defendant's conduct (id., citing to Lamey v Foley, 188 AD2d 157, 164 [4th Dept 1993]).

In the instant case, there was nothing to suggest that claimant was particularly familiar with the roadway, but on the other hand it was open and uncluttered and the light was good. She was a reasonably experienced bike rider and, although she was not wearing it, owned her own helmet. The "strip" of uneven or different pavement across the roadway was visible from a distance and attention was drawn to it by the platform and railing structure that had been erected beside the road immediately adjacent to the strip. Claimant admits that she saw this strip of different pavement when she was some distance away, far enough in advance to apply her hand brakes. Further, it is evident that she thought she had taken sufficient precaution by lowering her speed, because she made no further evasive movements, did not call out a warning to the children behind her, and intentionally rode across the irregular strip.

Claimant's counsel asserts that because this condition was created by defendant and because, as a State witness testified, it "should" have been repaired before the time of claimant's accident, this depression (or break or strip of different surface) created a risk beyond the risks inherent in the sport of bicycle riding. The Court cannot accept this argument. Riding over different surfaces is, however, an integral part of bicycling, and there is no proof that this condition, which had been in existence for over ten years, posed any sort of unusual hazard.

Consequently, the Court holds that claimant was injured by a "known, apparent or reasonably foreseeable consequence of participation" in the sport of bicycle riding. Defendant had fulfilled its duty to make the area as safe as it appeared to be, and nothing more was required.

Defendant's motion is granted; claimant's cross-motion is denied; and claim

No. 105068 is hereby dismissed.

October 6, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for summary judgment dismissing the claim and on claimants' cross-motion for summary judgment in their favor:
1. Notice of Motion and Supporting Affirmation of Frederick H. McGown, III, Esq, AAG, with annexed Exhibits

2. Notice of Cross-Motion and Supporting Affidavit of Alison M. Pavlakos, Esq., with annexed Exhibits and Memorandum of Law.

3. Defendant's Reply Affirmation of Frederick H. McGown, III, Esq., AAG, with Memorandum of Law

4. Claimant's Reply Affirmation of Alison M. Pavlakos, Esq.

Filed papers: Claim; Answer

[1] The claim of Greg Dobert is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" shall refer to Dianne Marie Dobert.