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