Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
9 VI and VII, respectively, herein discuss bikeway claims under tort claims acts and recreational use statutes in more detail. SECTION IV. TORT CLAIMS ACTS AND TORT LIABILITY OF PUBLIC ENTITIES A. State Tort Claims Acts Historically, public entities were not subject to liabil- ity in tort because of the doctrine of sovereign immu- nity. Municipal corporations usually were liable only for negligence in the performance of their proprietary func- tionsâactivities for which a fee was chargedâbut not for their governmental functions, such as providing and maintaining streets and highways. Because of sovereign immunity, public entities had complete freedom from suit or liability. However, by the 1960s and 1970s, most legislatures had enacted some form of tort claims act, sometimes in response to judicial abrogation of sover- eign immunity.77 The extent of a public entityâs liability varies from state to state depending on the extent to which the state legislature has waived immunity in tort, as well as on the courtsâ interpretation of the ap- plicable legislation.78 A tort claims act may apply to the state and other public entities, such as counties and municipalities, or there may be separate legislation applicable to the liability of the state and of counties and municipalities. Because a stateâs tort claims act waives sovereign immunity to some extent for negligence claims, such legislation is in derogation of the common law and therefore is construed strictly. An example of strict in- terpretation is Nawrocki v. Macomb County Road Commission,79 in which the Supreme Court of Michigan held that âprior decisions of this Courtâ¦improperly broadened the scope of the highway exceptionâ to gov- ernmental immunity and that the court âwas duty bound to overrule past decisions that depart from a narrow construction and application of the highway exception.â80 In reinterpreting the highway exception to immunity in the Michigan statute, the court ruled that a pedestrian stated a claim when alleging âthat she was injured by a dangerous or defective condition of the im- proved portion of the highway designed for vehicular travel.â81 However, the highway exception did not mean that âthe state or a county road commission [had] a duty to install, maintain, repair, or improve traffic con- 77 RICHARD JONES, RISK MANAGEMENT FOR TRANSPORTATION PROGRAMS EMPLOYING WRITTEN GUIDELINES AS DESIGN AND PERFORMANCE STANDARDS (NCHRP Legal Re- search Digest No. 38, 1997). 78 Id. The digest concludes that the largest number of states fall into the category of having abrogated immunity in a sub- stantial or general way. 79 463 Mich. 143, 615 N.W.2d 702 (Mich. 2000). 80 463 Mich. at 151, 615 N.W.2d at 707. 81 463 Mich. at 172, 615 N.W.2d at 717. trol devices, including traffic signs.â82 The court held that the highway exception did not give rise to duties even as to âintegral parts of the highwayâ that are âout- side the actual roadbed, paved or unpaved, designed for vehicular travel.â83 The court held that â[t]raffic device claims, such as inadequacy of traffic signs, simply do not involve a dangerous or defective condition in the improved portion of the highway designed for vehicular travel.â84 The court acknowledged, however, that there are other Michigan statutes that impose a duty âseparate from the highway exceptionâ for âthe installation, main- tenance, repair, or improvement of traffic signs.â85 Nev- ertheless, the statutes provide that the state and local authorities are to perform these duties as they âdeem necessary.â86 For the court, â[t]his is the language of discretion, not the imposition of a duty, the breach of which subjects the agencies to tort liabilityâas op- posed, perhaps, to political liability.â87 Besides showing that statutes waiving the immunity of public entities are strictly construed, the Nawrocki case illustrates several other principles of tort liability of public entities applicable to bikeways. Public entities are more likely to have immunity when making deci- sions that involve discretion, such as when to install traffic control devices, and public entities may be more likely to incur liability for alleged negligence involving the bikeway surface,88 such as the failure to correct a known dangerous condition in or on a bikeway.89 Also, as illustrated by the Nawrocki case, even if a state legislature has consented to tort claims against the state or other public entities, the stateâs consent to suit does not mean necessarily that consent has been given to being held liable for the alleged wrong at issue. For instance, a statute may waive immunity for a dan- gerous condition caused by a pothole but not for one caused by the absence of a guardrail.90 A public entity may have statutory immunity from liability for the fail- ure to replace a missing sign if the tort claims act pro- vides that the public entity is not liable âfor an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices.â91 82 463 Mich. at 173, 615 N.W.2d at 717. 83 463 Mich. at 176, 615 N.W.2d at 719. 84 463 Mich. at 183, 184, 615 N.W.2d at 723. 85 463 Mich. at 181, 615 N.W.2d at 721. 86 Id. (emphasis in original). 87 463 Mich. at 181â82, 615 N.W.2d at 722 (footnote omit- ted). 88 463 Mich. at 184, 615 N.W.2d at 723. 89 Id. (emphasis supplied). 90 See, e.g., 42 PA. CONS. STAT. § 8522(b)(5), setting forth conditions of explicit waiver of sovereign immunity regarding potholes as a dangerous condition of the highway and 42 PA. CONS. STAT. § 8542(b)(4) for trees, traffic controls, and street lighting. 91 Smith v. State, Depât of Transp., 247 N.J. Super. 62, 588 A.2d 854 (1991), cert. denied, 130 N.J. 13, 611 A.2d 651 (1992), (citing N.J. STAT. ANN. 59:4-5). See also Kosoff-Boda v. County
10 In Bookman v. Bolt,92 the plaintiffsâ decedent died as a result of an accident that occurred when he rode on a bicycle path that crossed a street.93 The city at the time of the accident had two construction projects in progress and âplanned to install a traffic signal at the intersec- tion after construction was completeâ¦.â94 Although there were posted warnings at the location of the acci- dent, the city had not installed the planned traffic sig- nal.95 The city defended on the basis that it had sover- eign immunity, because âit was not required by law to install a traffic signal, and any failure to install a traffic signal was the result of discretionary action.⦠The city also argued that sovereign immunity applied because the failure to initially install a traffic signal was the result of discretionary action.â96 The court agreed that the city had sovereign immunity and affirmed the trial courtâs grant of a summary judgment for the city.97 As illustrated by the Bookman case, a state legisla- ture may have waived sovereign immunity in regard to some claims but not others against public entities. Moreover, as discussed in the next section, public enti- ties typically have immunity for the exercise of discre- tion, such as when to install traffic signals, signs, or other traffic control devices. B. No General Duty to Install or Provide Highway Signs, Signals, or Pavement Markings Highway warning signs, traffic lights, or pavement markings are important features of safe roads and highways, as well as bikeways. The courts have held, however, that in the absence of statute, a public entity responsible for highways or bikeways has no general duty to install or provide highway signs, lights, or markings. Numerous cases hold that the failure to pro- vide such highway features is not actionable, particu- larly if a public entity had discretion regarding what of Wayne, 45 A.D. 3d 1337, 1338, 845 N.Y.S.2d 612, 613 (N.Y. App. 4th Depât 2007) (holding that the defendant submitted evidence that its signs were installed in accordance with the Manual on Uniform Traffic Control Devices (MUTCD), that it conducted periodic reviews of traffic volume, that it had not received any written complaints concerning the intersection, and that there had been only one reported accident near the intersection in the 2 years prior to the plaintiffâs accident); Racalbuto v. Redmond, 46 A.D. 3d 1051, 1052, 847 N.Y.S.2d 283, 285 (N.Y. App. 3d Depât 2007) (holding that the county had qualified immunity when the county had reviewed the highway plan and placed signs near an intersection that alerted motorists of a curve and the upcoming intersection). 92 881 S.W.2d 771 (Tex. Ct. Civ. App. 1994) writ denied, (Nov. 3, 1994). 93 881 S.W.2d at 772. 94 Id. at 773. 95 Id. 96 Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.056(1) & (2) (Vernon 1986) (discretionary powers) and § 101.061(a)(1) (Vernon 1986) (traffic and road-controlled de- vices)). 97 Id. at 774, 775. action or response was appropriate.98 The reason that states have no general obligation to place signs or warn- ings is that such decisions are policy or planning level in nature and must be made by the legislative or execu- tive branches of the government.99 Nevertheless, after a decision is made to provide signs, signals, or markings, there is a duty to place and maintain them with rea- sonable care.100 Furthermore, a duty may arise to install or provide them at the location of a dangerous condition of which the public entity had actual or constructive notice.101 When a highway agency must maintain high- ways or bikeways free of hazards, its duty may include the proper maintenance of directional signs, traffic sig- nals, or stop signs.102 Two sections of the California Government Code ap- plicable to the liability of public entities illustrate that there is no general duty to provide certain highway warning or traffic control features or devices. For ex- ample, Section 830.4 of the California Government Code provides that [a] condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code. 98 French v. Johnson County, 929 S.W.2d 614, 617 (Tex. App. 1996) (holding in a case involving an accident on a bridge built in 1943 that the countyâs failure to install guardrails, replace the bridge, or post warnings after the date of the tort claims act did not constitute an act or omission waiving immu- nity and that the decision not to post warning signs was discre- tionary); Urow v. District of Columbia, 316 F.2d 351 (D.C. Cir. 1963), cert. denied, 375 U.S. 826, 84 S. Ct. 69, 11 L. Ed. 2d 59 (1963) (no liability for failure to exercise discretionary legisla- tive powers to control traffic at an intersection). 99 Bickner v. Raymond Turnpike, 2008 SD 27, *P13, 747 N.W.2d 668, 672 (S.D. 2008) (holding that a townâs decision to remove a warning sign and not replace it was discretionary and therefore immune from liability); Weiss v. N.J. Transit, 128 N.J. 376, 382, 608 A.2d 254, 257 (1992) (holding that the tort claims actâs provision of an explicit grant of immunity for the failure to provide traffic signals prevailed even if there was a cause of action for other inaction, such as a delay in imple- menting a plan to install a traffic signal at a railroad crossing); Metier v. Cooper Transport Co., 378 N.W.2d 907, 911 (Iowa 1985) (decision whether or not to post a warning sign at a par- ticular highway location âwas operational in characterâ); Ufnal v. Cattaraugus County, 93 A.D. 2d 521, 525, 463 N.Y.S.2d 342, 345 (N.Y. App. 4th Depât 1983) (decision not to erect deer warn- ing signs based on negative evidence tending to show a lack of need at a certain location was a âdiscretionary governmental decisionâ), appeal denied, 60 N.Y.2d 554 (N.Y. 1983). 100 Chart v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673, 677â78 (1973). 101 See discussion, infra, in §§ IV.C, V, and VI. 102 Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 883 (2002) (construing Iowa Code § 668.10(1) to mean that when a regulatory device has been set up, âthe state or munici- pality may be assigned a percentage of fault for its failure to maintain the deviceâ).
11 Section 830.8 of the California Government Code provides that â[n]either a public entity nor a public em- ployee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code.â However, a public entity is responsible âfor an injury proximately caused byâ the public entityâs failure to provide âa signal, sign, marking or device (other than one described in § 830.4) that was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.â103 It may not be sufficient in some cases that a public entity has complied with the Manual on Uniform Traf- fic Control Devices (MUTCD). As one court has held, âthe Stateâs failure to comply with the Manual is evi- dence of negligence, i.e., breach of duty,â but âcompli- ance with the mandatory provisions of the Manual is not all that is needed for the State to meet its duty andâ¦the State is still bound to exercise ordinary care in selecting the appropriate traffic control device for the circumstances.â104 The majority rule appears to be that, unless specifi- cally required by statute, a public entity does not have a general duty with regard to highways or bikeways to install or provide highway or bikeway signs, traffic lights, or markings, because a public entityâs decisions regarding whether to provide them are decisions that are made at the planning or policy level and, thus, are discretionary in nature. Guidance Although there may be no general duty to provide signs, signals, guardrails, and other traffic safety fea- tures, in most jurisdictions a public entity may be held liable for the failure to install or provide such features or devices after the public entity has actual or construc- tive notice of a dangerous condition of the highway or bikeway. Furthermore, after a public entity installs or provides such safety features, the public entity usually is held to a duty of maintaining them in good repair such that the highway or bikeway is reasonably safe for its intended use. Of particular importance is that a public entity must comply with any mandatory standards that are applicable to the installation or replacement of signs, traffic control devices, pavement markings, guardrails, or other safety features. A violation of a nonmandatory standard or guideline may be admissible as evidence of whether a public entity was negligent un- der the circumstances in regard to the condition of a street, highway or bikeway. 103 CAL. GOVâT CODE § 830.8 (2009) (emphasis supplied). 104 Kirkwood v. State, 16 Neb. App. 459, at 483, 748 N.W.2d 83 at 105 (2008) (holding that the State was negligent in fail- ing to comply with the MUTCD in placing stop signs and other warning devices at an intersection when the state failed to have a stop line at the intersection and placed a stop sign out- side the driverâs line of vision) (citation omitted) (emphasis supplied). C. Whether a Public Entity Had Notice of a Dangerous Condition A public entityâs duty to correct a dangerous condi- tion105 or otherwise take appropriate action arises when it acquires notice of the condition.106 A public entity responsible for highways and bikeways has a duty to post signs warning of a dangerous condition when they are prescribed by law or when the location is inherently dangerous.107 Not surprisingly, the courts have held that whether there is a duty to provide warning signs, traffic signals, or pavement markings depends on the nature and circumstances of the condition of the road or bikeway. A statutory exemption for discretionary acts ordinarily does not relieve a public entity of liability for failing to warn of a condition known to be dangerous to the traveling public.108 Although the duty to take action arises when a pub- lic entity has notice of a dangerous condition, actual notice is not always required as constructive notice may be sufficient.109 A âplaintiff must show that a negligent or wrongful act or omission of a public employee created a dangerous condition, or that the public entity had notice of a dangerous condition a sufficient time prior to 105 The term âdangerous conditionâ is defined as âcondition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such prop- erty or adjacent property is used with due care in a manner in which it is reasonably forseeable that it will be used.â CAL. GOVâT CODE § 830(a). 106 Diakite v. City of New York, 42 A.D. 3d 338, 339, 840 N.Y.S.2d 33, 34 (N.Y. App. 1st Depât 2007) (holding that the city was not liable for failure to inspect an iron fence built in the 1800s and for failure to maintain it when there was no history of similar accidents concerning the fence), appeal de- nied, 9 N.Y.3d 811, 877 N.E.2d 651, 846 N.Y.S.2d 601 (2007); Mickle v. N.Y. State Thruway Auth., 182 Misc. 2d 967, 975, 701 N.Y.S.2d 782, 788â89 (Ct. Cl. 1999) (stating that âprior accidents is only one method by which a claimant may prove notice that a dangerous condition existed and that the defen- dant had constructive notice of itâ as âa claimant may prove that the defect was so obvious and had existed for such a pe- riod of time that a defendant should have discovered and cor- rected itâ); Gregorio v. City of New York, 246 A.D. 2d 275, 677 N.Y.S.2d 119, 122 (N.Y. App. 1st Depât 1998) (holding that a city is not immune from liability when it had notice that a bar- rier was defective), appeal dismissed, 93 N.Y.2d 917, 713 N.E.2d 414, 691 N.Y.S.2d 380 (1999). 107 Owen v. Burlington N. & Santa Fe R.R., 153 Wash. 2d 780, 788, 108 P.3d 1220, 1224 (2005). 108 Snyder v. Curran Twp., 167 Ill. 2d 466, 657 N.E.2d 988 (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); Woolen v. State, 256 Neb. 865, 879, 593 N.W.2d 729, 740 (1999) (a governmental entity has a duty to prevent injury where it has âactual or constructive notice of a dangerous con- ditionâ). Aetna Cas. & Sur. Co. v. State, 712 So. 2d 216 (La. Ct. App. lst Cir. 1998); Harkness v. Hall, 684 N.E.2d 1156 (Ind. App. 1997); Templeton v. Hammond, 679 N.E.2d 1368 (Ind. Ct. App. 1997); Burgess v. Harley, 934 S.W.2d 58 (Tenn. Ct. App. 1996), appeal denied (Oct. 28, 1996).
12 the injury to have taken measures to protect against it.â110 Because public entities are deemed to have knowl- edge of their own actions, it has been held that they do not have to have received notice of their own faulty de- sign, construction, maintenance, or repair of their high- ways or bikeways.111 A stateâs tort claims act legislation may provide in part, for example, that âa public entity is liable for in- jury caused by a dangerous condition of its property if the plaintiff establishes thatâ¦the public entity had actual or constructive notice of the dangerous condi- tionâ¦a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.â112 Thus, it has been held that when there is a danger- ous condition of a highway or bikeway, the responsible agency must respond, such as by correcting the condi- tion or providing adequate warning of it.113 Usually it is a question of fact whether a public entity had actual notice or whether the condition had existed for a suffi- cient time that the public entity may be charged with notice.114 Although the period of required notice may be prescribed by statute, in the absence of a statute there is no precise guidance on the required notice that a pub- lic entity must have before being held liable for failing to respond to a hazardous condition. It has been held that a 34-hour delay in detecting a large pothole on a major highway was sufficient to charge a public entity with notice of a dangerous condition.115 In contrast, other cases have held that there was no basis for liabil- ity because the highway agency either acquired notice the same day of the accident or had taken action within 110 Chowdbury v. City of L.A., 38 Cal. App. 4th 1187 at 1194, 45 Cal. Rptr. 2d 657 at 661 (1995) (citing CAL. GOVâT CODE § 835). 111 Coakley v. State, 26 Misc. 2d 431, 435, 211 N.Y.S.2d 658, 663 (1961), affâd, 15 A.D. 2d 721, 222 N.Y.S.2d 1023 (1962); Morales v. N.Y. State Thruway Auth., 47 Misc. 2d 153, 262 N.Y.S.2d 173 (1965). 112 CAL. GOVâT CODE § 835 (2009). 113 Louisville Gas and Elec. Co. v. Roberson, 212 S.W.3d 107, 109 (Ky. 2006). In general, government is charged with a duty of ordinary care with respect to highway safety. This duty requires govern- ment to keep highways âin a reasonably safe condition for travel, to provide proper safeguards, and to give adequate warn- ing of dangerous conditions in the highway. This includes the duty to erect warning signs and to erect and maintain barriers or guardrails at dangerous places on the highway to enable mo- torists, exercising ordinary care and prudence, to avoid injury to themselves and others.â (footnote omitted), rehearing denied, 2007 Ky. LEXIS 42 (Ky., Feb. 22, 2007). See also Colovos v. Depât of Transp., 205 Mich. App. 524, 517 N.W.2d 803 (Mich. Ct. App. 1994) (holding that the state had no duty to erect signs or warning devices unless these were located on the improved portion of the road), affâd, 450 Mich. 861, 539 N.W.2d 375 (1995), recons. denied, 544 N.W.2d 473 (Mich. 1996). 114 See, e.g., 65 N.Y. Jur. 2d, Highways, Streets, and Bridges § 381, at 171â73; See also Hiland v. State, 879 N.E.2d 621. 115 Gaines v. Long Island State Park Commân, 60 A.D. 2d 724, 725, 401 N.Y.S.2d 315, 317 (N.Y. App. 3d Depât 1977). a few hours of having received notice of a dangerous condition.116 In Langton v. Town of Westport,117 while the plaintiff was riding his bicycle on a public street in Westport, the front wheel of the bicycle fell into a grate located on the street.118 The town prevailed in the action because there was no evidence that âthe defect has existed long enough for the town to be charged with notice of it,â119 no evidence that the âgrate had changed after the date of its installation,â120 and no âevidence of a negligent continuance by the town of the design defect after the town knew or should have known of it.â121 The majority rule in most jurisdictions appears to be that a public entity responsible for highways and bike- ways has a duty to provide signs when they are re- quired by law or when they are needed to warn of a dangerous condition of a highway or bikeway. Public entities are deemed to know of a dangerous condition created as a result of their own action. Guidance Actual notice of a dangerous condition that gives rise to a public entityâs duty to provide an adequate warning under the circumstances may not be required. That is, if a dangerous condition has existed for a sufficient period of time, the length of time depending on the circum- stances, notice of the condition may be imputed to the public entity. D. The Governmental/Proprietary Test Applicable to Municipal Corporations in Some States Before the enactment of tort claims acts, the gov- ernmental-proprietary distinction was important re- garding functions for which a municipal corporation could be held liable for negligence. Typically, municipal corporations could be held liable for negligence in the performance of their proprietary functions, those for which the municipality charges a fee, but not for the performance of their governmental functions. In gen- eral, it was held that a public entityâs duties with re- spect to highways and bikeways are governmental in nature and immune from liability. The governmental- proprietary distinction still may be important in some 116 Lawson v. Estate of McDonald, 524 S.W.2d 351 (Tex. Civ. App. 1975), writ refâd n.r.e. (Oct. 8, 1975); Tromblee v. State, 52 A.D.2d 666, 381 N.Y.S.2d 707 (N.Y. App. 3d Depât 1976). See Ferris v. County of Suffolk, 174 A.D. 2d 70, 76, 579 N.Y.S.2d 436, 441 (N.Y. App. 2d Depât 1992) (stating that there was âno evidence that the condition, one loose plank out of many, was so patently defective that a town employee must have been put on notice of the potential dangerâ). 117 38 Conn. App. 14, 658 A.2d 602 (Conn. App. 1995). 118 Id. at 15, 658 A.2d at 604. 119 38 Conn. App. at 19, 658 A.2d at 606. See also DiDomizio v. Frankel, 44 Conn. App. 597, 602, 691 A.2d 594, 597 (Conn. App. 1997) (stating that the plaintiffs failed to introduce suffi- cient evidence to establish that the defendant had constructive notice). 120 38 Conn. App. at 17, 658 A.2d at 605. 121 Id.