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Knox County, the court held that "the decision not to consin decisions have held that the shoulder is a part of
install guardrails despite the recommendations of state the road for the purpose of statutes governing liability
inspectors falls within the discretionary function excep- for damages caused by highway defects.315 Several
tion."310 On the other hand, a California court has held courts have held that a public entity's duty may extend
that a public entity may be liable for an injury caused to repairing defects in the shoulder of the roadway such
316
by a dangerous condition of its property, such as the as a rut, ditch, hole, or other condition, or the removal
317
public entity's failure to erect median barriers to pre- of obstacles, and that the plaintiff does not have to
vent cross-median accidents.311 prove justification or good cause for leaving the paved
In Dahl v. State of New York,312 the court held in a surface and traveling on the shoulder of the roadway.
case in which the plaintiffs alleged that there should In State v. Municipality of Anchorage,318 the State
have been a guardrail between the roadway and a bicy- owned and maintained a designated bike path at the
cle path that "the claimants failed to establish, through time of an accident that resulted in the bicyclist's death
proof of prior similar accidents, violations of mandatory when he lost control and hit his head on a handrail
safety standards, or any other evidence, that the ab- near the path.319 The theory of the case "was that the
sence of guide rails in the vicinity of the accident lacked municipality had legal control of the pathway because it
313 320
any reasonable basis." had posted and designated it as a bike path; however,
the court held that the designation was merely one cir-
G. Shoulders and Adjacent Areas cumstance and that the State was the entity that failed
Areas adjacent a bikeway may be involved when to maintain the path adequately.321
322
there is a bicycle accident and a claim that a public en- In Camillo v. Department of Transportation, while
tity was negligent. The courts normally require no proof riding her bicycle on a sidewalk along US-1, the plain-
and take judicial notice of the fact that the shoulder of a tiff had to swerve to avoid a child and a dog.323 In doing
roadway is not designed and constructed for the pur- so, her foot caught on three "eyebolts" that "extended
poses of ordinary travel. Nevertheless, there is an issue approximately two inches into the path through the
whether the standard of care for the traveled portion of seawall...alongside the walkway."324 Although the trial
a roadway is or should be the same for the nontraveled judge granted a summary judgment to all three gov-
portion, or, alternatively, whether because of the de- ernmental defendants, the appellate court held that a
sign, construction, and intended use of the shoulder jury question was presented regarding the State's liabil-
there is a different standard of care applicable to acci- ity.325 The court held that when a governmental agency
dents caused by defects on the shoulder.314 Several Wis- 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
310 though that obstruction may have been initially created
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 not include illuminating obstacles beyond the improved portion
of CAL. GOV'T CODE § 835 "refute[d] the State's argument that of the roadway).
it [was] under no `duty' to protect the public against dangers 315
Ellerman v. City of Manitowoc, 267 Wis. 2d 480, 485, 671
that are not created by physical defects in public property" and
N.W.2d 366, 368 (2003) (stating that the definition of a high-
that under the circumstances in that case the State was liable
way has been extended by the courts to include shoulders of
for failure to provide an adequate median barrier).
312
the highway); Morris v. Juneau County, 219 Wis. 2d 543, 690,
45 A.D. 3d 803, 805, 846 N.Y.S.2d 329, 330 (N.Y. App. 69697, 579 N.W.2d 690, 69697 (Wis. 1998).
Div. 2d Dep't 2007). 316
313
Brummerloh v. Fireman's Ins., 377 So. 2d 1301, 1304 (La.
Id. App. 3d Cir. 1979). See also Black v. County of Los Angeles, 55
314
Fagan v. Dep't of Transp., 946 A.2d 1123 (Pa. Commw. Cal. App. 3d 920, 127 Cal. Rptr. 916 (Cal. App. 2d Dist. 1976)
Ct. 2008) (failing to decide whether the State had immunity for (affirming a judgment for injuries sustained when an automo-
the condition of the shoulder of the highway but finding that bile collided with a car that crossed the road after being de-
the plaintiffs failed to prove why their vehicle left the paved flected off course by striking a hole in the shoulder of the road).
portion of the highway and affirming a summary judgment for 317
Arno v. State, 20 Misc. 2d 995, 996 195 N.Y.S.2d 924, 927
the department); Aday v. State through Dep't of Transp. & (N.Y. Ct. Cl. 1960) (involving a rock pile 6- to 7-ft long and 4- to
Dev., 950 So. 2d 928, 933 (La. App. 3d Cir. 2007) (holding that 5-ft high that obstructed 3 of the 4-ft of shoulder on the north
the department's duty included "protecting a motorist who side of the highway).
inadvertently strays from the highway to the shoulder"), writ 318
805 P.2d 971 (Alaska 1991).
denied, 958 So. 2d 1190 (La. 2007); Graves v. Page, 703 So. 2d 319
566 (La. 1997) (holding that a motorist has the right to assume Id., 805 P.2d at 972.
320
that the highway shoulder is maintained in a reasonably safe Id.
321
condition), reh'g denied (Dec. 12, 1997)); DiBenedetto v. Flora Id. at 975.
Township, 153 Ill. 2d 66, 605 N.E.2d 571 (Ill. 1992) (holding 322
546 So. 2d 4 (Fla. 3d DCA 1988).
that the defendant was not liable for the unused portions of the 323
Id. at 5.
road); Luceri v. Wayne County Bd. of Road Comm'rs, 185 Mich. 324
App. 82, 460 N.W.2d 566 (Mich. Ct. App. 1990) (holding that a Id.
325
duty to maintain a highway in a reasonably safe condition does Id.
