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12 the injury to have taken measures to protect against a few hours of having received notice of a dangerous it."110 Because public entities are deemed to have knowl- condition.116 edge of their own actions, it has been held that they do In Langton v. Town of Westport,117 while the plaintiff not have to have received notice of their own faulty de- was riding his bicycle on a public street in Westport, the sign, construction, maintenance, or repair of their high- front wheel of the bicycle fell into a grate located on the ways or bikeways.111 118 street. The town prevailed in the action because there A state's tort claims act legislation may provide in was no evidence that "the defect has existed long part, for example, that "a public entity is liable for in- enough for the town to be charged with notice of it,"119 jury caused by a dangerous condition of its property if no evidence that the "grate had changed after the date the plaintiff establishes that...the public entity had of its installation,"120 and no "evidence of a negligent actual or constructive notice of the dangerous condi- continuance by the town of the design defect after the 121 tion...a sufficient time prior to the injury to have taken town knew or should have known of it." measures to protect against the dangerous condition."112 The majority rule in most jurisdictions appears to be Thus, it has been held that when there is a danger- that a public entity responsible for highways and bike- ous condition of a highway or bikeway, the responsible ways has a duty to provide signs when they are re- agency must respond, such as by correcting the condi- quired by law or when they are needed to warn of a tion or providing adequate warning of it.113 Usually it is dangerous condition of a highway or bikeway. Public a question of fact whether a public entity had actual entities are deemed to know of a dangerous condition notice or whether the condition had existed for a suffi- created as a result of their own action. cient time that the public entity may be charged with Guidance notice.114 Although the period of required notice may be Actual notice of a dangerous condition that gives rise prescribed by statute, in the absence of a statute there to a public entity's duty to provide an adequate warning is no precise guidance on the required notice that a pub- under the circumstances may not be required. That is, if lic entity must have before being held liable for failing a dangerous condition has existed for a sufficient period to respond to a hazardous condition. It has been held of time, the length of time depending on the circum- that a 34-hour delay in detecting a large pothole on a stances, notice of the condition may be imputed to the major highway was sufficient to charge a public entity public entity. with notice of a dangerous condition.115 In contrast, other cases have held that there was no basis for liabil- D. The Governmental/Proprietary Test Applicable ity because the highway agency either acquired notice to Municipal Corporations in Some States the same day of the accident or had taken action within Before the enactment of tort claims acts, the gov- ernmental-proprietary distinction was important re- 110 Chowdbury v. City of L.A., 38 Cal. App. 4th 1187 at 1194, garding functions for which a municipal corporation 45 Cal. Rptr. 2d 657 at 661 (1995) (citing CAL. GOV'T CODE § could be held liable for negligence. Typically, municipal 835). corporations could be held liable for negligence in the 111 Coakley v. State, 26 Misc. 2d 431, 435, 211 N.Y.S.2d 658, performance of their proprietary functions, those for 663 (1961), aff'd, 15 A.D. 2d 721, 222 N.Y.S.2d 1023 (1962); which the municipality charges a fee, but not for the Morales v. N.Y. State Thruway Auth., 47 Misc. 2d 153, 262 performance of their governmental functions. In gen- N.Y.S.2d 173 (1965). eral, it was held that a public entity's duties with re- 112 CAL. GOV'T CODE § 835 (2009). spect to highways and bikeways are governmental in 113 Louisville Gas and Elec. Co. v. Roberson, 212 S.W.3d 107, nature and immune from liability. The governmental- 109 (Ky. 2006). proprietary distinction still may be important in some In general, government is charged with a duty of ordinary care with respect to highway safety. This duty requires govern- 116 ment to keep highways "in a reasonably safe condition for Lawson v. Estate of McDonald, 524 S.W.2d 351 (Tex. Civ. travel, to provide proper safeguards, and to give adequate warn- App. 1975), writ ref'd n.r.e. (Oct. 8, 1975); Tromblee v. State, 52 ing of dangerous conditions in the highway. This includes the A.D.2d 666, 381 N.Y.S.2d 707 (N.Y. App. 3d Dep't 1976). See duty to erect warning signs and to erect and maintain barriers Ferris v. County of Suffolk, 174 A.D. 2d 70, 76, 579 N.Y.S.2d or guardrails at dangerous places on the highway to enable mo- 436, 441 (N.Y. App. 2d Dep't 1992) (stating that there was "no torists, exercising ordinary care and prudence, to avoid injury to evidence that the condition, one loose plank out of many, was themselves and others." so patently defective that a town employee must have been put (footnote omitted), rehearing denied, 2007 Ky. LEXIS 42 (Ky., on notice of the potential danger"). Feb. 22, 2007). See also Colovos v. Dep't of Transp., 205 Mich. 117 App. 524, 517 N.W.2d 803 (Mich. Ct. App. 1994) (holding that 38 Conn. App. 14, 658 A.2d 602 (Conn. App. 1995). 118 the state had no duty to erect signs or warning devices unless Id. at 15, 658 A.2d at 604. 119 these were located on the improved portion of the road), aff'd, 38 Conn. App. at 19, 658 A.2d at 606. See also DiDomizio 450 Mich. 861, 539 N.W.2d 375 (1995), recons. denied, 544 v. Frankel, 44 Conn. App. 597, 602, 691 A.2d 594, 597 (Conn. N.W.2d 473 (Mich. 1996). App. 1997) (stating that the plaintiffs failed to introduce suffi- 114 See, e.g., 65 N.Y. Jur. 2d, Highways, Streets, and Bridges cient evidence to establish that the defendant had constructive § 381, at 17173; See also Hiland v. State, 879 N.E.2d 621. notice). 120 115 Gaines v. Long Island State Park Comm'n, 60 A.D. 2d 38 Conn. App. at 17, 658 A.2d at 605. 121 724, 725, 401 N.Y.S.2d 315, 317 (N.Y. App. 3d Dep't 1977). Id.