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Liability Aspects of Bikeways (2010)

Chapter: SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS

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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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Suggested Citation:"SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS." National Academies of Sciences, Engineering, and Medicine. 2010. Liability Aspects of Bikeways. Washington, DC: The National Academies Press. doi: 10.17226/14371.
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21 keeping” functions (ministerial duties) are generally not discretionary.241 However, since the Gaubert case, in some states so-called housekeeping functions, presuma- bly meaning those performed at the operational level, nevertheless, may be protected from liability by the discretionary function exception. In any case, the well-settled rule under both pre- Gaubert and post-Gaubert decisions appears to be that when a public entity has knowledge of a dangerous or hazardous condition, the public entity has a duty to correct the defective condition or to give adequate warn- ing of it.242 The discretionary function exception has not protected a public entity from liability for a failure to respond to a dangerous or hazardous condition.243 A state’s tort claims act and judicial precedents must be reviewed to determine whether the state has immu- nized public entities for negligence in the performance of certain activities that generally are regarded as com- ing within the maintenance category. The majority rule, thus, is that maintenance ordinar- ily is regarded by the courts applying a United States v. Dalehite type of analysis as operational-level activity that is not immune from liability by virtue of a discre- tionary function exemption in a tort claims act. Even under a United States v. Gaubert type of analysis, a public entity generally would not be protected from li- ability under a discretionary function exemption if the public entity violates a mandatory policy or standard applicable to a bikeway. Guidance Some courts adhering to the planning-operational level dichotomy announced in United States v. Dalehite also state that when construing their state’s tort claims act they look to or follow the federal courts’ interpreta- tion of the discretionary function exemption in the FTCA. If a maintenance policy adopted by a public en- tity allows for the exercise of discretion in the perform- ance of maintenance tasks, such as the setting of priori- ties or allocation of personnel or resources, the public entity may want to research whether the involved state uses the Gaubert or some other test, and whether the discretionary function exemption also immunizes action taken pursuant to maintenance-level policies that re- quire or allow the exercise of discretion. 241 498 P.2d at 720. 242 See discussion, supra, in §§ IV.C, V, and VI. 243 See Symmonds v. Chicago, M., S.P. & P.R. Co., 242 N.W.2d 262 (Iowa 1976) (holding that the existence of a haz- ardous highway condition alone was sufficient to give rise to the public agency’s duty to provide adequate warning). Cases holding that a public entity’s State’s failure to provide warning signs at a given location did not involve the exercise of discre- tion include Metier v. Cooper Transport Co., 378 N.W.2d 907, 910–11 (Iowa 1985); Stanley v. State, 197 N.W.2d 599 (Iowa 1972) and Ehlinger v. State, 237 N.W.2d 784 (Iowa 1976). But see Seiber v. State, 211 N.W.2d 698 (Iowa 1973) (holding that a policy determination not to erect signs along state highways warning of deer involved the exercise of protected discretion). SECTION VI. ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS A. Warning Signs Although a public entity is not compelled to place warning signs, for example, at every curve along a highway or bikeway, generally it must provide them at “dangerous places” or unusual places to enable users exercising ordinary care and prudence to avoid injury to themselves and others.244 As one court has stated, a public entity is not “responsible for all injuries resulting from any risk posed by the roadway or its appurte- nances, only those caused by an unreasonable risk of harm to others.”245 Thus, under a state’s tort claims act, a public entity may have immunity as long as the sig- nal, sign, marking, or device was not necessary to warn of a dangerous condition that would not have been rea- sonably apparent to and would not have been antici- pated by a person exercising due care.246 Of course, be- fore the failure to post a warning will result in liability, it must be shown that the absence of a warning was the proximate cause of the accident.247 In some jurisdictions, however, the courts have held that whether a public entity is protected from liability by the discretionary function exemption decision must be decided on a case-by-case basis:248 244 Hensley v. Jackson County, 227 S.W.3d 491 (Mo. 2007) (negligent maintenance or failure to repair a downed stop sign as constituting a dangerous condition); Norman v. N.C. Dep’t of Transp., 161 N.C. App. 211, 218, 588 S.E.2d 42, 48 (N.C. Ct. App. 2003), review dismissed, 358 N.C. 235, 595 S.E.2d 153 (2004), review denied, 358 N.C. 235, 595 S.E.2d 153 (2004), cert. denied, 358 N.C. 545, 599 S.E.2d 404 (2004), appeal after remand, 2008 N.C. App. LEXIS 814 (N.C. Ct. App. May 6, 2008); Commonwealth v. Babbitt, 172 S.W.3d 786, 794 (2005) (holding that the State had “no duty to provide warning signs, guardrails, or barriers when an unusual or dangerous condi- tion does not exist,” nor had a “duty to erect guardrails or bar- riers of sufficient strength to withstand any degree of force”). 245 Lee v. State ex rel. Dep’t of Transp. & Dev., 701 So. 2d 676, 678 (La. 1997) (stating that “[i]t is well-settled that a gov- ernmental authority that undertakes to control traffic at an intersection must exercise a high degree of care for the safety of the motoring public”). 246 See, e.g., CAL. GOV’T CODE § 830.8. 247 Cianciola v. State, 38 A.D. 3d 1296, 1297, 834 N.Y.S.2d 755, 756 (N.Y. App. 4th 2007); Harkness v. Hall, 684 N.E.2d 1156 (Ind. Ct. App. 1997) (holding that the failure of a county to maintain and sign a highway was the proximate cause of the accident); Kennedy v. Ohio Dep’t of Transp., 63 Ohio Misc. 2d 328, 331, 629 N.E.2d 1101, 1103 (Ct. Cl. 1992) (holding that the transportation department established that the road’s traf- fic control devices conformed to the Ohio MUTCD and that the decedent, who was intoxicated, drove past three separate bar- ricades closing the area where a machine was parked across the roadway). 248 Lee v. State, 701 So. 2d at 679 (stating that “[i]n all situations, the decision to erect a warning sign is discretionary on the part of DOTD”).

22 Immunity may be established by government defendants who can show that the challenged decision was discre- tionary because it resulted from a policy oriented deci- sion-making process. If the counties engaged in this deci- sion-making process, the courts may not judge the wisdom of their decisions. That judgment is left to the po- litical process. The defendants here seek to establish the defense of im- munity. Each bears the burden to show that a policy deci- sion, consciously balancing risks and benefits, took place. Neither defendant county presented evidence to show that its decision regarding the warning signs was the re- sult of such a process.249 As for warning signs and bicycle accidents, in juris- dictions that strictly follow the planning-operational dichotomy, a public entity’s immunity may be limited to its initial decision to build or designate a bikeway or to place a sign on a bikeway. Although the bicycle accident occurred on a public road in Johnson v. Alaska,250 the plaintiff was severely injured when she approached a railroad crossing and the front wheel of her bicycle “caught” in the tracks, “pitching her over the front of her bicycle.”251 Warning signs were in place at the time of the accident,252 but the plaintiff alleged that the city was “negligent in the design, maintenance and ‘signing’ of the railroad crossing which caused her accident.”253 An issue on appeal was whether the State had discre- tionary function immunity under the Alaska Tort Claims Act.254 In remanding the case, the Supreme Court of Alaska reiterated that it followed the “planning-operational level test to determine whether a particular govern- mental function was within the ambit of the discretion- ary function exemption.”255 The court held that [t]he decision of whether to have built the road or cross- ing was a planning decision involving a basic policy deci- sion…. However, once the state made the decision to con- struct the road and crossing, the discretionary function immunity did not protect it from possible negligence li- ability in the operational carrying out of the basic policy- planning decision to build.256 The court noted that “there is no blanket design im- munity in Alaska.”257 Thus, the State did not have im- munity, because “the design decision made by the state in applying the reconstruction plans of the road and crossing were operational decisions….”258 Likewise, “the decision to sign [was] operational and hence not im- 249 Peavler v. Board of Comm’rs, 528 N.E.2d 40, 47–48 (Ind. 1988). 250 636 P.2d 47 (Alaska 1981). 251 Id. at 50. 252 Id. 253 Id. 254 Id. at 63 (citing ALASKA STAT. 09.50.–250). 255 Id. at 64. 256 Id. at 65 (citations omitted). 257 Id. 258 Id. mune.”259 It should be noted that a court following the Gaubert approach could have decided the case differ- ently by concluding that discretion may be exercised also at the so-called operational level. B. Traffic Control Devices Although there is a split of authority regarding whether a public entity is liable for failure to erect traf- fic signals or other traffic control devices,260 it appears that in most jurisdictions a public entity has immunity for the initial decision regarding whether to install them.261 Cases have held that the state’s decision- making concerning the providing or placing of such de- vices is within the sound discretion of the responsible public entity and is protected by the discretionary func- tion exception.262 259 Id. at 66. See also Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 981 (Alaska 2005) (stating that Alaska cases “have placed certain kinds of government actions on the opera- tional side of the operational/planning balance,” such as high- way maintenance, the painting of lane markings on highways, and the posting of highway signs). 260 Annotation, Highways: Governmental Duty to Provide Curve Warnings or Markings, 57 A.L.R. 4th 342, §§ 4, 5(a), (b). 261 Boub v. Township of Wayne, 183 Ill. 2d 520, 536, 702 N.E.2d 535, 543 (1998) (stating that “[o]ur cases have found immunity under section 3-104 of the Tort Immunity Act…for the initial failure to provide specific warning devices”); see also Weiss v. N.J. Transit, 128 N.J. 376, 608 A.2d 254, 257 (1992) (holding that “the explicit grant of immunity for failure to pro- vide traffic signals under N.J.S.A. 59:4-5 ‘will prevail over the liability provisions’” of the tort claims act in a case in which the plaintiff alleged that the public authorities were independently negligent in delaying the implementation of a plan to install a traffic signal at a railroad crossing) (citation omitted)). See Pandya v. State, Dep’t of Transp., 375 N.J. Super. 353, 370, 867 A.2d 1236, 1245 (2005) (stating that the court agreed with the plaintiffs that “the lane markings at issue here do not fall within the immunity of N.J.S.A. 59:4-5, because the issue here involved the State’s action in affirmatively creating two alleg- edly dangerous lanes”). 262 Kohl v. City of Phoenix, 215 Ariz. 291, 295, 160 P.3d 170, 174 (Ariz. 2007) (holding that the city had absolute immunity in a wrongful death action involving a bicyclist when the city made a decision to use computer software to rank intersections requiring traffic signals and to establish other criteria); City of Grapevine v. Sipes, 195 S.W.3d 689 (Tex. 2006) (holding that the city had immunity after it decided to install a traffic signal and after a reasonable period of time still failed to do so); McDuffie v. Roscoe, 679 So. 2d 641, 645 (Ala. 1996) (stating that the court could “not agree that posting warning signs was a ministerial function”); French v. Johnson County, 929 S.W.2d 614, 617 (Tex. App. 1996) (stating that the decisions not to install guardrails, replace a bridge, or post warning signs were discretionary decisions and that the tort claims act did not waive governmental immunity for such decisions). But see Ja- cobs v. Board of Comm’rs, 652 N.E.2d 94, 100 (Ind. App. 1995) (reversing the grant of a summary judgment for the county and holding that the county failed to establish that it had engaged in a systematic process to determine when and where to place warning signs).

23 The issue of the discretionary function exemption and traffic control devices is relevant to potential claims against public entities for bikeway accidents. In Bjorkquist v. City of Robbinsdale,263 a bicyclist, who was struck by an automobile in an intersection, claimed that the timing of the clearance interval between a change of traffic lights from red to green was unduly brief and that the improper timing of the light change was the proximate cause of the accident.264 The plaintiff asserted that the timing of the change of the lights was a “minis- terial” decision made at the operational level and, therefore, was not immune from judicial review.265 The court noted that there was no history of accidents or of “unusually heavy bicycle traffic at the intersection.”266 The court held that “[t]here is no obligation to time the lights in a particular way. Rather, that decision is arrived at after weighing competing interests.”267 With- out explicitly saying so, the court rejected the plaintiff’s contention that “the lights at such intersections [as these] should be timed in reference to bicycles.”268 The decision regarding the length of the clearance interval of the lights was part of the planning process and as such was a discretionary decision protected by the dis- cretionary function exemption.269 As discussed elsewhere, however, it appears that in most jurisdictions a public entity may not be immune from liability if it has failed to respond to a known dan- gerous condition.270 Moreover, it has been held that after 263 352 N.W.2d 817 (Minn. Ct. App. 1984). In Bjorkquist the court noted that “[t]ort immunity for municipalities was abol- ished by statute in 1963 subject to [a] few exceptions.” Id. at 818. See also Zank v. Larson, 552 N.W.2d 719 (Minn. 1996) (holding that the city’s determination as to the timing of traffic control signals was discretionary). 264 Id., 352 N.W.2d at 818. The plaintiff conceded that the decision whether to install a traffic control device at an inter- section was discretionary in nature and was exempt from li- ability under the discretionary function exception of the Min- nesota Tort Claims Act. 265 Id. 266 Id. at 819. 267 Id. 268 Id. at 818. 269 Id. (citing MINN. STAT. § 466.03(6) (1982)). 270 Nawrocki v. Macomb County Road Comm’n, 463 Mich. 143, at 180, 615 N.W.2d 702 at 721 (holding that the state or county road commissions have no duty to install, maintain, repair, or improve traffic control devices, including traffic signs, and that their liability is limited to the repair of danger- ous or defective conditions within the actual roadway); Starr v. Veneziano, 560 Pa. 650, 659, 747 A.2d 867, 873 (2000) (stating that no evidence was presented that a traffic control device would have prevented the accident); Harkness v. Hall, 684 N.E.2d 1156, 1160 (Ind. App. 4th Dist. 1997) (holding that there is a duty to maintain signs or signals in good working order); and Bendas v. Township of White Deer, 531 Pa. 180, 185, 611 A.2d 1184, 1187 (Pa. 1992) (holding that the Com- monwealth’s duty to make highways reasonably safe included erecting traffic control devices or otherwise correcting danger- ous conditions). a public entity decides to provide traffic control devices, there is a duty to maintain them in good working or- der.271 Nevertheless, at least one case was located in which the court held that a municipality is not liable even for the failure to maintain a traffic light.272 If there is no showing of a malfunction prior to the accident, a public entity may not be held liable because of the ab- sence of any showing of actual or constructive notice.273 After receipt of notice of a malfunction, a public entity has a reasonable time to take corrective action.274 C. Stop Signs and Speed Limit Signs The presence or lack thereof of STOP signs or speed limit signs is pertinent to potential accidents on bike- ways. It has been held that the decision whether to erect a STOP sign is a discretionary decision and im- mune from judicial review under the discretionary func- tion exemption in a state tort claims act.275 In Gonzales v. Hollins,276 the question was whether the city’s action in changing a traffic control device to a static STOP sign was a discretionary activity within the meaning of 271 Montgomery County v. Voorhees, 86 Md. App. 294, 303, 586 A.2d 769, 774 (Md. Ct. App. 1991) (alleged faulty traffic light); Forest v. State, 493 So. 2d 563 (La. 1986) (absence of amber flashing lights contributed to a finding of liability), reh’g denied (Oct. 9, 1986); Robinson v. State, Dep’t of Transp., 465 So. 2d 1301 (Fla. 1st DCA 1985), rev. denied, 476 So. 2d 673 (1985); and Stephen v. Denver, 659 P.2d 666 (Colo. 1983). See also Annotation, Liability of Highway Authorities Arising Out of Motor Vehicle Accident Allegedly Caused by Failure to Erect or Properly Maintain Traffic Control Device at Intersection, 34 A.L.R. 3d 1008, 1015 (“The strongest cases for recovery have been those in which the highway authority failed within a rea- sonable time to replace a traffic sign which had been removed by unauthorized persons, to re-erect or repair a sign which had fallen down or had been knocked down or bent over, or to re- place a burned out bulb in an electric traffic signal.”). 272 Radosevich v. County Comm’rs of Whatcom County, 3 Wash. App. 602, 476 P.2d 705 (Wash. Ct. App. 1970). 273 Zuniga v. Metro. Dade County, 504 So. 2d 491, 492 (Fla. 3d DCA 1987) (holding that there was no showing of actual or constructive notice of a malfunction of a traffic control signal). 274 City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 733, 613 S.E.2d 131, 135 (Ga. Ct. App. 2005) (citing Bow- man v. Gunnells, 243 Ga. 809, 256 S.E.2d 782 (1979), on re- mand, 151 Ga. App. 229, 259 S.E.2d 211 (1979) (per curiam) (stating that there was nothing “in the record to show any like malfunction before the accident [and] there [was] no genuine issue of material fact as to the County’s actual or constructive notice”)). 275 Tell City v. Noble, 489 N.E.2d 958 (Ind. App. 1st Dist. 1986) (holding that the decision of the city not to install a STOP sign or other form of traffic control at an intersection was discretionary and immune from judicial review under the Indiana Tort Claims Act). 276 386 N.W.2d 842 (Minn. App. 1986). See Nguyen v. Nguyen, 565 N.W.2d 721, 723 (Minn. Ct. App. 1997) (“Discre- tionary immunity applies in this case because the challenged conduct, the County’s decision to delay the intersection im- provements, occurred at the planning level.”).

24 the discretionary function exemption in the Minnesota Tort Claims Act.277 The court held that [t]he City’s decision to replace the semaphore with a stop sign and through street configuration was the result of a planning decision made after balancing various factors including safety testing, traffic patterns and budget con- cerns. Absent proof that the City had notice of a danger- ous condition, the act was discretionary.278 Likewise, the decision to post a speed limit sign is a protected planning-level activity rather than an unpro- tected operational-level activity.279 In Kolitch v. Lind- edahl,280 the Supreme Court of New Jersey agreed with the state that “it cannot be a tort to communicate accu- rately a properly established speed limit” and “that the setting of the speed limit in the first instance is a dis- cretionary function.”281 Furthermore, the court, in dis- cussing the planning-operational test and whether dis- cretion had been exercised under the discretionary function exemption, stated: The posting of a sign is merely one form of acting on the decision to set a certain limit, a decision that is discre- tionary in nature and therefore entitled to immunity. Thus, both the decision and the act of implementation are one and the same for the purposes of the statute.282 The court also relied on New Jersey Statutes Anno- tated 59:4–5, which exonerates a public entity “for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices.”283 In Alexander v. Eldred,284 the city of Ithaca argued that its decision whether to install a stop sign was not “justiciable.”285 The New York Court of Appeals held that municipalities do not have absolute immunity when exercising their discretion.286 Rather, a plaintiff may succeed “on proof that the plan either was evolved without adequate study or lacked [a] reasonable ba- sis.”287 In Alexander, the plaintiff’s evidence established that the city had failed to review traffic counts that were less than 18 years old for the intersection in ques- tion and that New York’s MUTCD required a stop sign 277 386 N.W.2d at 844 (citing MINN. STAT. § 466.03(6)). 278 Id. at 846. 279 Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 273–74 (Minn. Ct. App. 1996) (holding that an engineer’s deci- sion not to install a “distance plaque” on the approach to a curve was discretionary). 280 100 N.J. 485, 497 A.2d 183 (1985). See also Coyne v. Dep’t of Transp., 182 N.J. 481, 867 A.2d 1159 (2005) (remand- ing to the trial court in a case involving an accident when the department had stationed a truck with a flashing “Left Lane Closed Ahead” sign for a determination of whether the depart- ment’s actions were “palpably unreasonable,” a term not de- fined in the State’s tort claims act). 281 100 N.J. at 494, 497 A.2d at 187. 282 Id. at 495, 497 A.2d at 188. 283 Id. at 496, 497 A.2d at 189. 284 63 N.Y.2d 460, 472 N.E.2d 996, 483 N.Y.S.2d 168 (1984). 285 Id. at 465, 472 N.E.2d at 998, 483 N.Y.S.2d at 170. 286 Id. at 466, 472 N.E.2d at 998, 483 N.Y.S.2d at 170. 287 Id. (citation omitted). at the intersection.288 However, the “most critical evi- dence” was the city engineer’s erroneous belief that “the city had no power to install a stop sign on a private road.”289 The court held that “[i]f the municipality pro- ceeds in direct contravention, or ignorance, of all le- gitimate interpretations of the law, its plan of action is inherently unreasonable.”290 In general, although there is some judicial authority to the contrary, after a public entity provides a warning sign or a traffic control device, the public entity has a duty to maintain it in good working order and its failure to do so is not protected by the discretionary function exemption.291 As one appellate court held under the cir- cumstances of that case, “[t]he posted advisory speed signs are not binding and were customarily ignored, which fact was known to the State.… [T]he State’s fail- ure to post mandatory speed limit signs at this danger- ous intersection may be deemed a proximate cause of the accident.”292 D. Pavement Markings There are cases holding that a public entity has im- munity for its decisions regarding pavement mark- ings.293 It has been held that special pavement markings may not be required at an intersection when the evi- dence does not establish that a hazardous or dangerous condition existed.294 On the other hand, there are prece- 288 Id. at 466, 472 N.E.2d at 998–99, 483 N.Y.S.2d at 171. 289 Id. at 466, 472 N.E.2d at 999, 483 N.Y.S.2d at 171. 290 Id. at 467, 472 N.E.2d at 999, 483 N.Y.S.2d at 171. 291 Dep’t of Transp. v. Konney, 587 So. 2d 1292, 1294 (Fla. 1991) (holding that the state and county were not liable be- cause their “decisions relating to the installation of appropriate traffic control methods and devices or the establishment of speed limits are discretionary decisions”); Bussard v. Ohio Dep’t of Transp., 31 Ohio Misc. 2d 1, 507 N.E.2d 1179 (Ct. Cl. 1986); Shuttleworth v. Conti Constr. Co., 193 N.J. Super. 469, 474, 475 A.2d 48, 51 (1984) (holding that a jury question was presented regarding whether the county was guilty of “palpa- bly unreasonable” conduct in allowing a sign to become ob- scured by vegetation after installation); Bryant v. Jefferson City, 701 S.W.2d 626 (Tenn. Ct. App. 1985); Dep’t of Transp. v. Neilson, 419 So. 2d 1071 (Fla. 1982) (holding that the failure to maintain traffic control devices in proper working order once installed constituted negligence at the unprotected, operational level). 292 Scheemaker v. State, 125 A.D. 2d 964, 510 N.Y.S.2d 359, 360 (N.Y. App. 4th Dep’t 1986), aff’d, 70 N.Y.2d 985, 526 N.Y.S.2d 420, 521 N.E.2d 427 (1988). 293 Elmer v. Kratzer, 249 A.D. 2d 899, 672 N.Y.S.2d 584 (N.Y. App. 4th Dep’t 1998) (holding that the city was immune for its decision to classify a road as a truck route that the city had painted as two-lane rather than as a four-lane road); State Dep’t of Highways & Public Transp. v. Carson, 599 S.W.2d 852, 854 (Tex. Civ. App. 1980) (holding that there was no liability for alleged faulty or misleading pavement markings), writ re- fused n.r.e. and reh’g of writ of error overruled (Nov. 12, 1980)). 294 Stomelli v. State, 11 A.D. 2d 1088, 206 N.Y.S.2d 823 (N.Y. App. 4th Dep’t 1960), appeal denied, 9 N.Y.2d 609 (1961); Egnoto v. State, 11 A.D. 2d 1089, 206 N.Y.S.2d 824 (N.Y. App.

25 dents holding a public defendant liable for improper, inadequate, or misleading pavement markings.295 In addition, in some jurisdictions, the courts may regard decisions on pavement marking as operational-level activities that are not protected by the discretionary function exemption.296 E. Defects in the Pavement Surface Particularly relevant to bikeways is the issue of whether a public entity may be held liable for defects in the surface of the bikeway. A public entity’s duty to observe defects in the surface is often an issue, particu- larly in the absence of a statute requiring that the state have prior written or other notice of such defects. The cases have considered various means of imputing notice of the pavement’s condition to the responsible public authority. Although it has been held that a police offi- cer’s knowledge of a defect may be imputed to the state, the issue of notice may be satisfied by other evidence such as departmental records297 or when it is shown that the defendant itself created the defect, in which case no notice is required.298 There are cases in which a public entity was held not liable because it did not have notice of the defect in the pavement299 or because the plaintiff did not give a pre-suit notice as required by statute.300 4th Dep’t 1960), appeal denied, 14 A.D. 2d 828, 218 N.Y.S.2d 534 (N.Y. App. 4th Dep’t 1961). 295 Pandya v. State, Dep’t of Transp., 375 N.J. Super. 353, 370, 867 A.2d 1236 (N.J. Super. Ct. 2005) (reversing the grant of a summary judgment and agreeing with the plaintiffs that the lane markings at issue “do not fall within the immunity of N.J.S.A. 59:4-5, because the issue here involved the State’s action in affirmatively creating two allegedly dangerous lanes”); Fisher v. State, 268 A.D. 2d 849, 702 N.Y.S.2d 418 (N.Y. App. 3d Dep’t 2000) (holding that misleading pavement marking violated the MUTCD). 296 Rogers v. State, 51 Haw. 293, 459 P.2d 378 (1969) and State v. I’Anson, 529 P.2d 188 (Alaska 1974) (both courts hold- ing that pavement marking is operational level, maintenance activity that is not immune from liability). 297 Gallery v. City of New York, 182 Misc. 2d 555, 699 N.Y.S.2d 266 (Sup. Ct. N.Y. Cnty. 1999) (holding that a map depicting a defect over 1 year prior to the accident was admis- sible on the issue of notice to the defendant of the defect in the sidewalk). 298 Bisulco v. City of New York, 186 A.D. 2d 84, 588 N.Y.S.2d 26 (N.Y. App. 1st Dep’t 1992) (holding in a case involving the “pothole law,” N.Y. ADM. CODE § 7-201(c), that a lack of notice did not defeat a claim when the city was affirmatively negli- gent in causing or creating the defective condition). 299 Dupre v. Wolfe, 424 So. 2d 465, 468 (La. App. 5th Cir. 1982) (reversing a trial court’s judgment against the depart- ment in part because an “accident diagram” for a 1-year period showed that there was only one accident at the location of the crossing in question); Doucet v. State, Dep’t of Highways, 309 So. 2d 382 (La. App. 3d Cir. 1975), cert. denied, 312 So. 2d 340 (1975); Mistich v. Matthaei, 277 So. 2d 239 (La. App. 4th Cir. 1973). 300 Cassuto v. City of New York, 23 A.D. 3d 423, 424, 805 N.Y.S.2d 580, 581 (N.Y. App. 2d Dep’t 2005) (prior written notice of a sidewalk claim was required as a condition prece- In Carroll v. County of Los Angeles,301 the plaintiff had been rollerblading on the 19.2-mi South Bay Bicy- cle Path along the coast from Santa Monica through Redondo Beach when she fell because of a crack where the path intersected a walkway.302 The issue was whether the county had immunity because the paved bicycle path qualified as a “trail” under California Gov- ernment Code Section 831.4. The court held that sub- section (b) of the statute clearly “gives governmental immunity to ‘[a]ny trail…which provides access to…all types of vehicular riding, water sports, recreational or scenic areas….’”303 Thus, because the terms “path” and “trail” were synonymous, the county was not liable.304 The court, moreover, rejected the argument that the statute did not apply because the path did not provide access to anything; “subdivision (b) is not limited to ‘access’ trails, but extends to include a trail whose use itself is the object of the recreational activity.”305 F. Guardrails and Barriers The discretionary-function exemption has been as- serted successfully as a defense when a public entity was sued because of a decision not to install guardrails or barriers, because a decision whether to erect a guardrail or a barrier is a planning-level decision.306 Thus, it has been held that the failure to erect a guard- rail did not constitute a dangerous condition of com- monwealth realty;307 that the failure to erect a guardrail was not a “dangerous condition of the streets” for pur- poses of the “streets exception” to governmental immu- nity under tort claims act;308 and that there was no li- ability for failing to provide a median barrier, particularly when there was no showing of changed conditions between the time of the reconstruction of the roadway and the accident.309 Similarly, in Helton v. dent to a suit against the city); David v. City of New York, 267 A.D. 2d 419, 700 N.Y.S.2d 235 (N.Y. App. 2d Dep’t 1999) (re- versing a judgment for the plaintiff because the city did not have actual, prior written notice prior to the plaintiff’s claim). 301 60 Cal. App. 4th 606, 70 Cal. Rptr. 2d 504 (Cal. App. 2d Dist. 1998). 302 Id. at 608, 70 Cal. Rptr. 2d at 505. 303 Id. at 609, 70 Cal. Rptr. 2d at 506. 304 Id. 305 Id. at 610, 70 Cal. Rptr. 2d at 506. 306 State, Dep’t of Transp. v. Vega, 414 So. 2d 559, 560 (Fla. 3d DCA 1982) (holding that the DOT “enjoyed sovereign im- munity in its decision not to erect a guardrail”), petition denied, 424 So. 2d 763 (Fla. 1983). See also State v. San Miguel, 2 S.W.3d 249, 251 (1999); Cygler v. Presjack, 667 So. 2d 458 (Fla. 4th DCA 1996); Newsome v. Thompson, 202 Ill. App. 3d 1074, 560 N.E.2d 974 (Ill. App. 1st Dist. 1990). 307 Dean v. Commonwealth, Dep’t of Transp., 561 Pa. 503, 508, 751 A.2d 1130, 1134 (2000). 308 Lockwood v. Pittsburgh, 561 Pa. 515, 751 A.2d 1136 (2000). 309 Sutton v. Golden Gate Bridge, 68 Cal. App. 4th 1149, 81 Cal. Rptr. 2d 155 (Cal. App. 1st Dist. 1998), review denied, 1999 LEXIS 1346 (Cal., Mar. 9, 1999).

26 Knox County, the court held that “the decision not to install guardrails despite the recommendations of state inspectors falls within the discretionary function excep- tion.”310 On the other hand, a California court has held that a public entity may be liable for an injury caused by a dangerous condition of its property, such as the public entity’s failure to erect median barriers to pre- vent cross-median accidents.311 In Dahl v. State of New York,312 the court held in a case in which the plaintiffs alleged that there should have been a guardrail between the roadway and a bicy- cle path that “the claimants failed to establish, through proof of prior similar accidents, violations of mandatory safety standards, or any other evidence, that the ab- sence of guide rails in the vicinity of the accident lacked any reasonable basis.”313 G. Shoulders and Adjacent Areas Areas adjacent a bikeway may be involved when there is a bicycle accident and a claim that a public en- tity was negligent. The courts normally require no proof and take judicial notice of the fact that the shoulder of a roadway is not designed and constructed for the pur- poses of ordinary travel. Nevertheless, there is an issue whether the standard of care for the traveled portion of a roadway is or should be the same for the nontraveled portion, or, alternatively, whether because of the de- sign, construction, and intended use of the shoulder there is a different standard of care applicable to acci- dents caused by defects on the shoulder.314 Several Wis- 310 922 S.W.2d 877, 887 (Tenn. 1996) (noting that the deci- sion-making process “included weighing economic factors.”). 311 Ducy v. Argo Sales Co., 25 Cal. 3d 707, 159 Cal. Rptr. 835, 602 P.2d 755, 760 (Cal. 1979) (holding that the language of CAL. GOV’T CODE § 835 “refute[d] the State’s argument that it [was] under no ‘duty’ to protect the public against dangers that are not created by physical defects in public property” and that under the circumstances in that case the State was liable for failure to provide an adequate median barrier). 312 45 A.D. 3d 803, 805, 846 N.Y.S.2d 329, 330 (N.Y. App. Div. 2d Dep’t 2007). 313 Id. 314 Fagan v. Dep’t of Transp., 946 A.2d 1123 (Pa. Commw. Ct. 2008) (failing to decide whether the State had immunity for the condition of the shoulder of the highway but finding that the plaintiffs failed to prove why their vehicle left the paved portion of the highway and affirming a summary judgment for the department); Aday v. State through Dep’t of Transp. & Dev., 950 So. 2d 928, 933 (La. App. 3d Cir. 2007) (holding that the department’s duty included “protecting a motorist who inadvertently strays from the highway to the shoulder”), writ denied, 958 So. 2d 1190 (La. 2007); Graves v. Page, 703 So. 2d 566 (La. 1997) (holding that a motorist has the right to assume that the highway shoulder is maintained in a reasonably safe condition), reh’g denied (Dec. 12, 1997)); DiBenedetto v. Flora Township, 153 Ill. 2d 66, 605 N.E.2d 571 (Ill. 1992) (holding that the defendant was not liable for the unused portions of the road); Luceri v. Wayne County Bd. of Road Comm’rs, 185 Mich. App. 82, 460 N.W.2d 566 (Mich. Ct. App. 1990) (holding that a duty to maintain a highway in a reasonably safe condition does consin decisions have held that the shoulder is a part of the road for the purpose of statutes governing liability for damages caused by highway defects.315 Several courts have held that a public entity’s duty may extend to repairing defects in the shoulder of the roadway such as a rut, ditch, hole, or other condition,316 or the removal of obstacles,317 and that the plaintiff does not have to prove justification or good cause for leaving the paved surface and traveling on the shoulder of the roadway. In State v. Municipality of Anchorage,318 the State owned and maintained a designated bike path at the time of an accident that resulted in the bicyclist’s death when he lost control and hit his head on a handrail near the path.319 The theory of the case “was that the municipality had legal control of the pathway because it had posted and designated it as a bike path;320 however, the court held that the designation was merely one cir- cumstance and that the State was the entity that failed to maintain the path adequately.321 In Camillo v. Department of Transportation,322while riding her bicycle on a sidewalk along US-1, the plain- tiff had to swerve to avoid a child and a dog.323 In doing so, her foot caught on three “eyebolts” that “extended approximately two inches into the path through the seawall…alongside the walkway.”324 Although the trial judge granted a summary judgment to all three gov- ernmental defendants, the appellate court held that a jury question was presented regarding the State’s liabil- ity.325 The court held that when a governmental agency as a landowner is responsible for an area, it has a duty “to maintain its streets and sidewalks free from an ob- struction of which it knew or should have known, even though that obstruction may have been initially created not include illuminating obstacles beyond the improved portion of the roadway). 315 Ellerman v. City of Manitowoc, 267 Wis. 2d 480, 485, 671 N.W.2d 366, 368 (2003) (stating that the definition of a high- way has been extended by the courts to include shoulders of the highway); Morris v. Juneau County, 219 Wis. 2d 543, 690, 696–97, 579 N.W.2d 690, 696–97 (Wis. 1998). 316 Brummerloh v. Fireman’s Ins., 377 So. 2d 1301, 1304 (La. App. 3d Cir. 1979). See also Black v. County of Los Angeles, 55 Cal. App. 3d 920, 127 Cal. Rptr. 916 (Cal. App. 2d Dist. 1976) (affirming a judgment for injuries sustained when an automo- bile collided with a car that crossed the road after being de- flected off course by striking a hole in the shoulder of the road). 317 Arno v. State, 20 Misc. 2d 995, 996 195 N.Y.S.2d 924, 927 (N.Y. Ct. Cl. 1960) (involving a rock pile 6- to 7-ft long and 4- to 5-ft high that obstructed 3 of the 4-ft of shoulder on the north side of the highway). 318 805 P.2d 971 (Alaska 1991). 319 Id., 805 P.2d at 972. 320 Id. 321 Id. at 975. 322 546 So. 2d 4 (Fla. 3d DCA 1988). 323 Id. at 5. 324 Id. 325 Id.

27 by some third person….”326 The court rejected the de- partment’s argument that the claim was barred by the defense of governmental immunity.327 Predney v. The Village of Park Forest328 involved an 11-year-old boy who was severely and permanently in- jured in a bicycle accident, allegedly caused by bushes obstructing the view of an intersection.329 The court held that “[a] municipality's duty to keep [its] streets, side- walks, and parkways in a reasonably safe condition is not limited but extends to any part of portions immedi- ate and adjacent thereto.”330 The court observed that under the Illinois Local Governmental and Governmen- tal Employee Tort Immunity Act, a public entity is li- able “if after execution of [a] plan or design it appears from its use that it has created a condition that is not reasonably safe.”331 It was “undisputed that the village owned the bicycle path up to the last 7 1/2 feet before the intersection, that 3.9 feet of the bushes extended over village property at the time of the accident,” and that the village had several notices of the obstruction.332 As part of the design the village “required the planting of the bushes and even constructed a ramp for easier access from the bicycle path to the service driveway.”333 The court held that the village owed a duty of ordinary care to the plaintiff even for an accident that occurred on adjacent property.334 In sum, in some jurisdictions a public entity may be held liable for conditions on shoulders and adjacent areas that pose an unreasonable danger to bicyclists. H. Requirement That Bicyclists Be Intended or Permitted Users A public entity may not be held liable for dangerous conditions if by statute the area where the bicyclist was riding was not intended or permitted for the use of bicy- clists. For example, in Garcia v. City of Chicago,335 a 27- year-old plaintiff was injured while riding her bicycle on a city sidewalk. She alleged that the city was negligent in the maintenance of the sidewalk because at one end of the sidewalk there was a 6-in. drop-off in the pave- ment.336 The court held, first, that Section 9-52-020(b) of the Municipal Code, which prohibited bicycle riding on sidewalks by persons over the age of 12 unless the sidewalk had been designated and marked as a bicycle route, did not violate the Equal Protection Clause of the 326 Id. (citations omitted). 327 Id. at 6. 328 164 Ill. App. 3d 688, 518 N.E.2d 1243 (1987). 329 Id. at 690, 518 N.E.2d at 1244. 330 Id. at 697, 518 N.E.2d at 1249 (citation omitted). 331 Id. at 698, 518 N.E.2d at 1250 (citing ILL. REV. STAT. 1985, c. 85, par. 3-103(a) (1985)). 332 Id. at 697, 518 N.E.2d at 1249. 333 Id. at 698, 518 N.E.2d at 1250. 334 Id. 335 240 Ill. App. 3d 199, 608 N.E.2d 239 (Ill. App. 1st Dist. 1992). 336 Id. at 200, 608 N.E.2d at 240. Constitution.337 Second, under Section 3-102(a) of the Local Government and Governmental Employees Tort Immunity Act,338 [e]xcept as otherwise provided in this Article, a local pub- lic entity has the duty to exercise ordinary care to main- tain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foresee- able that it should be used….339 The court held that the city was not liable, because Garcia was not an “intended and permitted user under § 3-102(a) of the Tort Immunity Act.”340 In Lipper v. City of Chicago,341 the plaintiff argued that “a bicyclist is...an intended user of this particular sidewalk because one must use the sidewalk to reach the bicycle path on the other side of Lake Shore Drive.”342 The court held that an adult bicyclist was nei- ther an intended nor a permitted user of a sidewalk on which he struck a raised portion of the sidewalk sur- rounding a manhole cover.343 Thus, there is precedence to the effect that a public entity may not be liable to an injured cyclist for alleged negligence if the bicyclist was not an intended or permitted user of a sidewalk or roadway at the time of the accident. The majority view is that public entities’ decisions to provide warning signs, traffic control devices, STOP signs, speed limit signs, pavement markings, guard- rails, or barriers are policy-level decisions that are im- mune from liability. Some states’ statutes specifically exonerate public entities for failure to provide traffic signals, signs, markings, or similar controls or devices. However, the courts have held a public entity liable for an accident that was proximately caused by the public entity’s failure to provide a traffic signal, sign, pave- ment markings, or other control or device as needed when the public entity had notice of a dangerous condi- tion. After a public entity provides such safety features or devices, it is generally held that the public entity has a duty to maintain them in good and serviceable condi- tion. Guidance Public entities have been held liable for the failure to maintain traffic control devices, for misleading pave- ment markings, for failure to replace warning signs, for defects in the pavement surface, and for obstructions in a bikeway, as well as for hazards and obstacles in an adjacent area. A public entity may be held liable for the violation of a mandatory provision of the MUTCD or 337 Id. at 200–01, 204, 608 N.E.2d at 240–41, 243. 338 ILL. REV. STAT. 1989, ch. 85, par. 3-102(a). 339 240 Ill. App. 3d at 201, 608 N.E.2d at 241 (emphasis added). 340 Id. at 204, 608 N.E.2d at 243. 341 233 Ill. App. 3d 834, 600 N.E.2d 18 (Ill. App. 1st Dist. 1992). 342 Id. at 838, 600 N.E.2d at 21. 343 Id. at 836, 600 N.E.2d at 19.

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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 53: Liability Aspects of Bikeways explores the liability of public entities for bicycle accidents on bikeways as well as on streets and highways. The report also examines the federal laws that encourage the designation and use of bikeways; the elements of a claim in tort against a public entity for a bicycle accident, whether on a public street or some type of bikeway; defenses to bikeway accidents under tort claims acts and applicable to public entities; immunity for bicycle claims under some state recreational use statutes that in a majority of states are applicable to public entities; and public entities’ laws and policies on the accommodation of bicycles on streets and highways and the designation of bikeways.

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