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11 Section 830.8 of the California Government Code C. Whether a Public Entity Had Notice of a provides that "[n]either a public entity nor a public em- Dangerous Condition ployee is liable under this chapter for an injury caused A public entity's duty to correct a dangerous condi- by the failure to provide traffic or warning signals, tion105 or otherwise take appropriate action arises when signs, markings or devices described in the Vehicle it acquires notice of the condition.106 A public entity Code." However, a public entity is responsible "for an responsible for highways and bikeways has a duty to injury proximately caused by" the public entity's failure post signs warning of a dangerous condition when they to provide "a signal, sign, marking or device (other than are prescribed by law or when the location is inherently one described in 830.4) that was necessary to warn of dangerous.107 Not surprisingly, the courts have held a dangerous condition which endangered the safe that whether there is a duty to provide warning signs, movement of traffic and which would not be reasonably traffic signals, or pavement markings depends on the apparent to, and would not have been anticipated by, a nature and circumstances of the condition of the road or person exercising due care."103 bikeway. A statutory exemption for discretionary acts It may not be sufficient in some cases that a public ordinarily does not relieve a public entity of liability for entity has complied with the Manual on Uniform Traf- failing to warn of a condition known to be dangerous to fic Control Devices (MUTCD). As one court has held, 108 the traveling public. "the State's failure to comply with the Manual is evi- Although the duty to take action arises when a pub- dence of negligence, i.e., breach of duty," but "compli- lic entity has notice of a dangerous condition, actual ance with the mandatory provisions of the Manual is notice is not always required as constructive notice may not all that is needed for the State to meet its duty be sufficient.109 A "plaintiff must show that a negligent and...the State is still bound to exercise ordinary care or wrongful act or omission of a public employee created in selecting the appropriate traffic control device for the 104 a dangerous condition, or that the public entity had circumstances." notice of a dangerous condition a sufficient time prior to The majority rule appears to be that, unless specifi- cally required by statute, a public entity does not have a 105 general duty with regard to highways or bikeways to The term "dangerous condition" is defined as "condition of property that creates a substantial (as distinguished from a install or provide highway or bikeway signs, traffic minor, trivial or insignificant) risk of injury when such prop- lights, or markings, because a public entity's decisions erty or adjacent property is used with due care in a manner in regarding whether to provide them are decisions that which it is reasonably forseeable that it will be used." CAL. are made at the planning or policy level and, thus, are GOV'T CODE 830(a). discretionary in nature. 106 Diakite v. City of New York, 42 A.D. 3d 338, 339, 840 Guidance N.Y.S.2d 33, 34 (N.Y. App. 1st Dep't 2007) (holding that the Although there may be no general duty to provide city was not liable for failure to inspect an iron fence built in signs, signals, guardrails, and other traffic safety fea- the 1800s and for failure to maintain it when there was no tures, in most jurisdictions a public entity may be held history of similar accidents concerning the fence), appeal de- liable for the failure to install or provide such features nied, 9 N.Y.3d 811, 877 N.E.2d 651, 846 N.Y.S.2d 601 (2007); or devices after the public entity has actual or construc- Mickle v. N.Y. State Thruway Auth., 182 Misc. 2d 967, 975, tive notice of a dangerous condition of the highway or 701 N.Y.S.2d 782, 78889 (Ct. Cl. 1999) (stating that "prior accidents is only one method by which a claimant may prove bikeway. Furthermore, after a public entity installs or notice that a dangerous condition existed and that the defen- provides such safety features, the public entity usually is dant had constructive notice of it" as "a claimant may prove held to a duty of maintaining them in good repair such that the defect was so obvious and had existed for such a pe- that the highway or bikeway is reasonably safe for its riod of time that a defendant should have discovered and cor- intended use. Of particular importance is that a public rected it"); Gregorio v. City of New York, 246 A.D. 2d 275, 677 entity must comply with any mandatory standards that N.Y.S.2d 119, 122 (N.Y. App. 1st Dep't 1998) (holding that a are applicable to the installation or replacement of city is not immune from liability when it had notice that a bar- signs, traffic control devices, pavement markings, rier was defective), appeal dismissed, 93 N.Y.2d 917, 713 guardrails, or other safety features. A violation of a N.E.2d 414, 691 N.Y.S.2d 380 (1999). 107 nonmandatory standard or guideline may be admissible Owen v. Burlington N. & Santa Fe R.R., 153 Wash. 2d as evidence of whether a public entity was negligent un- 780, 788, 108 P.3d 1220, 1224 (2005). 108 der the circumstances in regard to the condition of a Snyder v. Curran Twp., 167 Ill. 2d 466, 657 N.E.2d 988 street, highway or bikeway. (1995) (discretionary immunity did not insulate township from liability for improper placement of a road sign). 109 Hiland v. State, 879 N.E.2d 621, 627 (Ind. Ct. App. 2008); 103 CAL. GOV'T CODE 830.8 (2009) (emphasis supplied). Woolen v. State, 256 Neb. 865, 879, 593 N.W.2d 729, 740 104 Kirkwood v. State, 16 Neb. App. 459, at 483, 748 N.W.2d (1999) (a governmental entity has a duty to prevent injury 83 at 105 (2008) (holding that the State was negligent in fail- where it has "actual or constructive notice of a dangerous con- ing to comply with the MUTCD in placing stop signs and other dition"). Aetna Cas. & Sur. Co. v. State, 712 So. 2d 216 (La. Ct. warning devices at an intersection when the state failed to App. lst Cir. 1998); Harkness v. Hall, 684 N.E.2d 1156 (Ind. have a stop line at the intersection and placed a stop sign out- App. 1997); Templeton v. Hammond, 679 N.E.2d 1368 (Ind. Ct. side the driver's line of vision) (citation omitted) (emphasis App. 1997); Burgess v. Harley, 934 S.W.2d 58 (Tenn. Ct. App. supplied). 1996), appeal denied (Oct. 28, 1996).