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April 2010 national Cooperative highway Research Program Legal Research Digest 53 Liability aspects of bikeways This report was prepared under NCHRP Project 20-6, "Legal Problems Arising Out of Highway Programs," for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, Attorney-at- Law, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution State highway departments and transportation agen- tort liability laws applicable to public entities from state cies have a continuing need to keep abreast of operat- to state. ing practices and legal elements of specific problems in The digest addresses the liability of public entities for highway law. This report is a new paper, which contin- bicycle accidents on bikeways as well as on streets and ues NCHRP's policy of keeping departments up-to-date highways. As the American Association of State High- on laws that will affect their operations. way and Transportation Officials' Guide for the Devel- opment of Bicycle Facilities states, "[t]he majority of Applications bicycling will take place on ordinary roads with no dedi- State and local engineers, planners, administrators, cated space for bikes." Further, the report reviews the and elected officials are concerned about incurring li- federal laws that encourage the designation and use of ability for injuries suffered by bicyclists riding on public bikeways; the elements of a claim in tort against a public roadways designated as bikeways, and those concerns entity for a bicycle accident, whether on a public street may also result in hesitation to create additional marked or some type of bikeway; defenses to bikeway accidents bikeways. This concern has led to a variety of approach- under tort claims acts and applicable to public entities; es, such as local legislation and the use of federal guide- immunity for bicycle claims under some state recreation- lines, in an effort to offer cycling as an alternative means al use statutes that in a majority of states are applicable of transportation. There is a need to provide general in- to public entities; and public entities' laws and policies formation regarding legal risks to transportation entities on the accommodation of bicycles on streets and high- and officials associated with designating public bike- ways and the designation of bikeways. Some discussion ways or the use of roads for increased bicycle traffic. is based on responses to a survey of public entities, in- This research project was prompted by the need to cluding public entities that designate bikeways. provide information on legal risks to transportation and This report will be useful to attorneys, transportation other public entities having bikeways, or the authority officials, risk managers, planners, maintenance engi- to designate them, or bicycle use on shared roadways. neers, financial officers, policy makers, and all persons However, the extent of a public entity's risk of tort li- interested in the relative rights and responsibilities of ability differs because of differing interpretations of the motorists and bicyclists on shared roadways. TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES