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3 LIABILITY ASPECTS OF BIKEWAYS By Larry W. Thomas Attorney-at-Law, Washington, DC INTRODUCTION with wide curb lanes, or road with paved shoulders."6 A shared use path is "[a] bikeway physically separated Since the 1970s there has been increased use of bicy- from motorized vehicular traffic by an open space or cles for commuting and other travel, including recrea- barrier and either within the highway right-of-way or tion, resulting in a greater response at all levels of gov- within an independent right-of-way. Shared use paths ernment to accommodate bicycles as a mode of may also be used by pedestrians, skaters, wheelchair transportation. Public entities' concerns about tort li- users, joggers and other non-motorized users."7 A signed ability for bicycle-related accidents may discourage pro- shared roadway or signed bike route refers to "[a] jects to accommodate more bicycles on streets or high- shared roadway which has been designated by signing ways or to designate more bicycles lanes and paths.1 8 as a preferred route for bicycle use." The states' classi- This digest, thus, is prompted by the need to provide fication of bikeways is discussed also in Section VIII.B, information on legal risks to transportation and other infra. public entities having bikeways or the authority to des- The digest discusses the federal laws that encourage 2 ignate them. However, the extent of a public entity's the designation and use of bikeways; the elements of a risk of tort liability differs because of differing interpre- claim in tort against a public entity for a bicycle acci- tations of the tort liability laws applicable to public en- dent whether on a public street or some type of bike- tities from state to state. way; defenses to bikeway accidents under tort claims The digest addresses the liability of public entities acts that are applicable to public entities; immunity for for bicycle accidents on bikeways as well as on streets bicycle claims under some state recreational use stat- and highways. As the American Association of State utes that in a majority of states are applicable to public Highway and Transportation Officials' (AASHTO) entities; and public entities' laws and policies on the Guide for the Development of Bicycle Facilities states, accommodation of bicycles on streets and highways and "[t]he majority of bicycling will take place on ordinary the designation of bikeways based on responses to a roads with no dedicated space for bicyclists;"3 conse- survey of public entities, including public entities that quently, "[a]ll highways, except those where cyclists are designate bikeways. legally prohibited, should be designed and constructed Guidance under the assumption that they will be used by cy- Although the digest discusses the principles of tort li- clists."4 ability applicable to public entities having responsibility According to AASHTO, and as used herein, the term for bikeways, as defined for the purposes of the digest, bikeway means "any road, street, path or way which in the reader is cautioned that the courts' interpretations of some manner is specifically designated for bicycle the law differ from state to state. Thus, the nature of the travel, regardless of whether such facilities are desig- legal issues relating to tort liability do not allow for de- nated for the exclusive use of bicycles or are to be finitive statements regarding the liability or the absence 5 shared with other transportation modes." A shared thereof of public entities responsible for bikeways. It is roadway is one that "is open to both bicycle and motor recommended that anyone relying on the digest should vehicle travel. This may be an existing roadway, street consult with counsel to confirm the standards for liabil- 1 ity in his or her state. See, e.g., Amy M. Cardwell, The Hawaii Recreational Use Statute: A Practical Guide to Landowner Liability, 22 HAWAII L. REV. 237, 248, 24950, 252 (2000), hereinafter cited as SECTION 1. FEDERAL LAWS ENCOURAGING THE "Cardwell" (stating that the principal reason for landowners DESIGNATION AND USE OF BIKEWAYS not permitting their land to be used by recreational users is the Although some states and local government agencies owners' concerns about potential liability for accidents). 2 may be dissuaded from designating bikeways because of See J.W. English, Liability Aspects of Bikeway Designation potential tort liability, federal laws encourage the de- (1986) (a study commissioned by the Bicycle Federation of America, now the National Center for Bicycling and Walking). velopment, construction, and designation of new bike- 3 way facilities by providing funding and guidance AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS, AASHTO GUIDE FOR THE DEVELOPMENT OF BICYCLE FACILITIES 1 (1999), available at http://www.communitymobility.org/pdf/aashto.pdf, last ac- 6 cessed on Oct. 27, 2009, hereinafter cited as "AASHTO Guide." Id. 4 7 Id. Id. 5 8 Id. at 3. Id.