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Liability Aspects of Bikeways (2010)

Chapter: SECTION VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS

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Suggested Citation:"SECTION VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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 VII. PUBLIC ENTITIES IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS." 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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28 other applicable standard that is the proximate cause of a bikeway accident. It should be noted that in some ju- risdictions it has been held that a public entity does not have a duty and, therefore, is not liable to a bicyclist for his or her injuries if the bicyclist as a matter of state or municipal law was not an intended or permitted user of the area where the bicycle accident occurred. SECTION VII. PUBLIC ENTITIES’ IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS A. Overview of Recreational Use Statutes Although a public entity may have immunity for al- leged negligence regarding a decision, action, or inac- tion resulting in a bicycle accident on a roadway or bikeway under the state’s tort claims act, a public en- tity also may have immunity for accidents on bikeways and other areas under the state’s recreational use stat- ute. Since Michigan’s enactment of a recreational use statute in 1953, nearly every state has enacted recrea- tional use legislation,344 which typically “alter[s] the duty of care for recreational providers, including prop- erty owners, lessees, and the occupants of premises.”345 However, “most recreational use statutes…fail[] to ade- quately define the types of lands, users and activities that trigger the immunity provision….”346 Thus, depending on the circumstances, a recrea- tional use statute may afford immunity to a public en- tity that designates bikeways. Moreover, as discussed in Section II, supra, a state tort claims act may immunize a public entity in those cases in which the recreational use statute does not protect the public entity from li- ability. In general, although the states’ recreational use statutes differ, the state legislatures have granted statutory immunity to landowners against claims aris- ing out of the opening of their property to the public for recreational use free of charge.347 Recreational use stat- utes generally are strictly construed348 and must be as- serted by the defendant public entity as an affirmative defense.349 344 Glen Rothstein, Recreational Use Statutes and Private Landowner Liability: A Critical Examination of Ornelas v. Randolph, 15 WHITTIER L. REV. 1123, 1125 (1994), hereinafter cited as “Rothstein.” 345 Terrence J. Centner, Tort Liability for Sports and Recrea- tional Activities: Expanding Statutory Immunity for Protected Classes and Activities, 26 J. LEGIS. 1 at *12 (2000), hereinafter cited as “Centner.” 346 Rothstein, supra note 344, at 1125–126 (footnotes omit- ted). 347 Linville v. City of Janesville, 184 Wis. 2d 705, 714, 516 N.W.2d 427, 430 (1994). 348 Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 696 (S.D. 1994). 349 Hanley v. State, 837 A.2d 707, 710 (R.I. 2003). A1. No Duty of the Landowner to Keep the Area Safe Although the statutory language may vary, a fairly common provision in recreational use statutes is that an owner, lessee, or occupant of premises owes no duty of care to keep the premises safe for entry and use for recreational purposes or to give any warning of a haz- ardous (or under some state statutes a dangerous) con- dition.350 The statutes usually state that an owner who permits recreational use does not extend any assurance that the land is safe for use for any purpose or assume any responsibility or liability for an injury to one using the land.351 Recreational use statutes also may provide 350 ALA. CODE § 35-15-1 (2009) (also providing in § 35-15-22 that there is no duty to inspect the land); see also ALA. CODE § 35-15-24(2)(3) (also providing that the statute does not limit legal liability that otherwise may exist when the owner has actual knowledge that a condition or activity exists that in- volves an unreasonable risk of death or serious bodily harm or actual knowledge that the condition or activity is not apparent to persons using the land) and ALA. CODE § 35-15-24 (excluding constructive knowledge as a basis for liability); ARK. CODE § 18-11-307 (2009); CAL. CIV. CODE § 846 (2009); CONN. GEN. STAT. § 52-557g (2009); DEL. CODE tit. 7 § 5903 (2009); GA. CODE § 51-3-22 (2009); HAW. REV. STAT. § 520-3 (2009); IDAHO STAT. § 36-1604.4(c) (2009); 745 ILL. COMP. STAT. 65/3 (2009) (stating “or to give warning of a natural or artificial dangerous condition”); IOWA CODE § 461C.3 (2009); KAN. STAT. § 58-3203 (2009); KY. REV. STAT. §§ 150.645(1) and 411.190(3) (2009); MD. CODE § 5-1103 (2009); MINN. STAT. §§ 604A.22 (1), (2) (2009); MO. STAT. § 527.346 (2009) (stating that there is “no duty to give any general or specific warning with respect to any natural or artificial condition”); MONT. CODE § 70-16-302(1) (2009); NEB. REV. STAT. § 37-731 (2009); NEV. REV. STAT. § 41.150(1) (2009); N.H. REV. STAT. § 212:34(I) (2009); N.J. STAT. ANN. 2A:42A-2(a) (2009); N.Y. GEN. OBLIG. LAW § 9-103(1)(a) (2009); N.D. CENTURY CODE § 53-08-02 (2009); PA. CONS. STAT. § 477-3 (2009); S.C. CODE § 27-3-30 (2009); UTAH CODE ANN. § 57-14-3 (2009); W. VA. CODE ANN. § 19-25-2 (2009) (applicable to a dangerous or hazardous condition); WYO. STAT. ANN. § 34- 19-102 (2009). 351 ALA. CODE § 35-15-23 (2009); ARK. CODE §§ 18-11-305, 307 (2009); CAL. CIV. CODE § 846 (2009); COLO. REV. STAT. § 33-41-103 (2009); CONN. GEN. STAT. §§ 52-557g(b)(1) and (3); DEL. CODE tit. 7 §§ 5903 and 5904(1) and (3) (2009); FLA. STAT. §§ 375.251(2)(a)(1) and (3) and 355.251(3)(a)(1)(2) (2009); GA. CODE §§ 51-3-23(1) and (3) (2009); HAW. REV. STAT. §§ 520-4(1) and (3) (2009); IDAHO STAT. §§ 36-1604.4(d)(1) and (3) (2009); ILL. COMP. STAT. 745 65/4(a) and (3) (2009); IND. CODE § 14-22- 10-2(e) (2009); IOWA CODE §§ 461C.4(1) and (3) (2009); KAN. STAT. §§ 58-3204(a) and (c) (2009); LA. REV. STAT. § 9. 2795(B)(1)(a) (2009); MD. CODE §§ 5-1104(1) and (3) (2009); MINN. STAT. §§ 604A.23(1) and (3) (2009); MO. STAT. §§ 537.347(1) and (3) (2009); NEB. REV. STAT. §§ 37-732(1) and (3) (2009); NEV. REV. STAT. § 41.510(2)(a) (2009); N.H. REV. STAT. §§ 212:34(II)(a) and (c) (2009); N.J. STAT. ANN. §§ 2A:42A- 3(b)(1) and (3) (2009); N.M. STAT. ANN. §§ 17-4-7(A)(1-4) (2009); N.Y. GEN. OBLIG. LAW. §§ 9-103(1)(b)(1) and (3) (2009); N.C. GEN. STAT. §§ 53-08-03(1) and (3) (2009); N.D. CENT. CODE §§ 53-08-03(1) and (3) (2009); PA. CONS. STAT. §§ 477- 4(1) and (3) (2009); R.I. GEN. LAWS §§ 32-6-3(1) and (3) (2009); S.C. CODE §§ 27-3-40(a) and (c) (2009); TENN. CODE ANN. §§ 70-7-103(1) and (3) (2009); UTAH CODE ANN. §§ 57-14-4(1) and (3) (2009); VT. STAT. ANN., tit. 12 § 5794(5) (2009); W. VA.

29 that an owner, lessee, occupant, or person in control of the land does not extend any assurances that the prem- ises are safe for any recreational purpose.352 The stat- utes often similarly provide that no duty of care or ground of liability is created for an injury to a person using the property for a recreational purpose.353 Many of the recreational use statutes make it clear that a rec- reational user’s status while on the property is not that of an invitee or, under some state statutes, a recrea- tional user is neither an invitee nor a licensee.354 Fi- nally, many of the statutes provide that a recreational user must use due care when using the property.355 A2. Owner’s Liability Limited to Willful or Malicious Failure to Warn of or Guard Against a Known Dangerous Condition Although recreational use statutes differ to some ex- tent, they generally provide that they do not limit the CODE ANN. §§ 19-25-2(a) and (c) (2009); WYO. STAT. ANN. §§ 34-19-103(a)(i) and (iii) (2009). 352 ALA. CODE § 35-15-2 (2009); CAL. CIV. CODE § 846 (2009); CONN. GEN. STAT. § 5903 (2009). 353 ALA. CODE § 35-15-4 (2009); DEL. CODE tit. 7 § 5907(1) (2009); GA. CODE § 51-3-26(1) (2009); HAW. REV. STAT. § 520- 6(1) (2009); IDAHO STAT. § 36-1604(g)(1) (2009); 745 ILL. COMP. STAT. 65/7(a) (2009); IOWA CODE § 461C.7(1) (2009); KAN. STAT. § 58-3207(a) (2009); KY. REV. STAT. § 411.190(7)(a) (2009); MD. CODE § 5-1102(b)(1) (2009); NEB. REV. STAT. § 37- 735 (2009); NEV. REV. STAT. § 41.150(3)(b) (2009); N.Y. GEN. OBLIG. LAW § 9-103(3) (2009); PA. CONS. STAT. § 477-7(1) (2009); R.I. GEN. LAWS § 32-6-6 (2009); S.C. CODE § 27-3-70 (2009); S.D. COD. LAWS § 20-9-17 (2009); W. VA. CODE ANN. § 19-25-4 (2009); WYO. STAT. ANN. § 34-19-106. 354 ALA. CODE § 35-15-2 (2009); ARK. CODE § 18-11-305(2) (2009); CAL. CIV. CODE § 846 (2009); COLO. REV. STAT. § 33-41- 103(1)(b) (2009); CONN. GEN. STAT. § 52-557g(2) (2009); DEL. CODE tit. 7 § 5904(2) (2009); GA. CODE § 51-3-23(2) (2009); HAW. REV. STAT. § 520-4(2) (2009); IDAHO STAT. § 36-1604(d)(2) (2009); 745 ILL. COMP. STAT. 65/4(b) (2009); IOWA CODE § 461C.4(2) (2009); KAN. STAT. § 58-3204(b) (2009); LA. REV. STAT. § 9.2795B(1)(b) (2009); MD. CODE § 5-1104(2) (2009); MINN. STAT. § 604A.23(2) (2009); NEB. REV. STAT. § 37-732(2) (2009); N.H. REV. STAT. § 212:34(II)(b) (2009); N.J. STAT. ANN. § 2A:42A-3(b)(2) (2009); N.Y. GEN. OBLIG. LAW § 9-103(1)(b)(2) (2009); N.D. CENTURY CODE § 53-08-03(2) (2009); PA. CONS. STAT. § 477-4(2) (2009); R.I. GEN. LAWS § 32-6-3(2) (2009); S.C. CODE § 27-3-40(b) (2009); S.D. COD. LAWS § 20-9-14(2) (2009); TENN. CODE ANN. § 70-7-103(2) (2009); UTAH CODE ANN. § 57- 14-4(2) (2009); W. VA. CODE ANN. § 19-25-2(b) (2009); WYO. STAT. ANN. § 34-19-103(a)(ii) (2009). 355 ALA. CODE § 35-15-25 (2009); ARK. CODE § 18-11-303(2) (2009); COLO. REV. STAT. § 33-41-105(1)(b) (2009); CONN. GEN. STAT. § 52-557i (2009); DEL. CODE tit. 7 § 5907(2) (2009); GA. CODE § 51-3-26(2) (2009); HAW. REV. STAT. § 520-6(2) (2009); IDAHO STAT. § 36.1604(g)(2) (2009); 745 ILL. COMP. STAT. 65/7(b) (2009); IOWA CODE § 461C.7(2) (2009); KAN. STAT. § 58- 3207(b) (2009); KY. REV. STAT. § 411.190(7)(b) (2009); LA. REV. STAT. § 9.2795D (2009); MD. CODE § 5-1102(b)(2) (2009); MINN. STAT. § 604A.26 (2009); NEB. REV. STAT. § 37-736 (2009); N.D. CENTURY CODE § 53-08-06 (2009); VT. STAT. ANN. tit. 12 § 5794(a)(6) (2009); W.VA. CODE ANN. § 19-25-4 (2009). owner’s liability that otherwise exists for willful or ma- licious failure to warn of or guard against a known dan- gerous condition or use of the property.356 Thus, a major- ity of the recreational use statutes do stipulate that persons granting the public access to their property for recreational activities may be held liable for their “will- ful or malicious failure to guard or warn against a dan- gerous condition, use structure, or activity,” or under some statutes for their “gross negligence,” “willful or wanton conduct,” or “willful, wanton or reckless con- duct.”357 One state’s recreational use statute defines gross negligence as an act or omission: (1) “which when viewed objectively from the standpoint of the actor at the time of its occur- rence, involves an extreme degree of risk, considering the probability and magnitude of the potential harm to oth- ers;” and (2) “of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or wel- fare of others.”358 356 ALA. CODE § 35-15-3 (2009); ARIZ. REV. STAT. § 33-1551 (2009) (stating that “a public or private owner is not liable except for willful, malicious or grossly negligent conduct”); ARK. CODE § 18-11-307 (2009) (stating that an owner’s liability is not limited for “malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition…actually known to the owner to be dangerous”); CAL. CIV. CODE § 846 (2009); COLO. REV. STAT. §§ 33-41-104(1)(a) and 33-41- 105(1)(a) (2009); CONN. GEN. STAT. § 52-557h (2009); DEL. CODE tit. 7 § 5906 (2009); FLA. STAT. § 375.251(4) (2009) (using the terms “deliberate, willful or malicious injury”); GA. CODE § 51-3-25(1) (2009); HAW. REV. STAT. § 520-5(1) (2009); 745 ILL. COMP. STAT. 65/6(a) (2009) (stating “willful or wanton failure to guard or warn against a dangerous condition”); IND. CODE § 14-22-10-2(g) (2009) (stating that an owner or occupant “is not excused for a malicious or illegal act causing injury”); IOWA CODE § 461C.6(1) (2009); KAN. STAT. § 58-3206 (2009); KY. REV. STAT. §§ 150.645(1) and 411.190(6)(a) (2009); LA. REV. STAT. § 9.2795(B)(1) (2009); MD. CODE § 5-1106 (2009); MASS. GEN. LAWS, tit. 21 § 17C (2009) (stating “absence of willful, wanton or reckless conduct”); MICH. COMP. LAWS § 324.73301 (2009) (stating “gross negligence or willful and wanton miscon- duct’); MINN. STAT. § 604A.22(1) (2009) (stating no duty “except to refrain from willfully taking action to cause injury”); MO. STAT. § 537.348 (2009) (providing for a different standard with respect to guarding or warning against a dangerous condition versus an ultra hazardous condition); MONT. CODE § 70-16- 302(1) (2009); NEB. REV. STAT. § 37-734 (2009); NEV. REV. STAT. § 41.150(3)(a)(1) (2009); N.H. REV. STAT. § 212:34(III)(a) (2009); N.J. STAT. ANN. § 2A:42A-4(a) (2009); N.Y. GEN. OBLIG. LAW § 9-103(2) (2009); N.D. CENTURY CODE § 53-08-05(1) (2009); R.I. GEN. LAWS § 32-6-5 (2009); S.C. CODE § 27-3-60(a) (2009); TENN. CODE ANN. § 70-7-104(1) (2009); UTAH CODE ANN. § 57-14-6(1)(a) (2009); VT. STAT. ANN., tit. 12 § 5793(a) (2000) (willful or wanton misconduct of the owner); W. VA. CODE ANN. § 19-25-4 (2009) (stating “deliberate, willful or ma- licious infliction of injury); WYO. STAT. ANN. § 34-19-105(a)(i) (2009). 357 Centner, supra note 345, at *13. 358 Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, at 660 (quoting TEX. CIV. PRAC. & REM. CODE § 41.001(11)).

30 In Dinelli v. County of Lake,359 the court noted that the willful-and-wanton-conduct exception to immunity under the Illinois recreational use statute meant a “course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.”360 However, “[a] public entity may be found to have engaged in willful and wanton conduct only if it has been informed of a dangerous condition, knew others had been injured be- cause of the condition, or if it intentionally removed a safety device or feature from property used for recrea- tional purposes.”361 In Dinelli, the court ruled the trial court properly granted a summary judgment to the county on the plaintiffs’ claim that the county had negligently de- signed and maintained a midblock bicycle trail cross- walk. The court concluded that “the County’s ‘nonac- tion’ did not rise to the level of willful and wanton conduct showing an utter indifference to the safety of others,” nor did the “County’s failure to conduct traffic studies or utilize traffic control devices…rise to the level of willful and wanton conduct.”362 It has been held that a willful failure to guard or warn requires that “[a] defendant must have actual knowledge of the ‘specific dangers inherent in those conditions or activities.’”363 In Ali v. City of Boston,364 the court defined willful, wanton, or reckless conduct under the Massachusetts statute as that conduct involving an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another…. The risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defen- dant’s election to run that risk or of his failure reasonably to recognize it.365 In Ali, the court, which held that the plaintiff’s claim was barred by the recreational use statute, rejected the plaintiff’s alternative claim with respect to a bike trail in a city park “that the city’s conduct in erecting [a] gate without lights, signs, or other warnings constituted willful, wanton, or reckless conduct.”366 In states in which the courts are reluctant to grant a summary judgment, landowners, however, may be con- cerned that a “plaintiff need only allege willful or mali- cious conduct on the part of the landowner and the case 359 294 Ill. App. 3d 876, 691 N.E.2d 394 (Ill. App. 2d Dist. 1998). 360 Id. at 883, 691 N.E.2d at 399 (citing 745 ILL. COMP. STAT. ANN. 10/1—210 (West 1996)). 361 Id. at 884, 691 N.E.2d at 399 (citation omitted). 362 Id. at 885, 691 N.E.2d at 399 (citation omitted). 363 Blake v. United States, 1998 U.S. Dist. LEXIS 1475, at *23 (E.D. Pa. 1998) (Unrept.). 364 441 Mass. 233, 804 N.E.2d 927 (Mass. 2004). 365 Id. at 238, 239, 804 N.E.2d at 932 (internal quotation marks omitted) (citation omitted). 366 Id. at 238, 804 N.E.2d at 931. will go to trial.”367 Indeed, the question of whether a landowner has committed willful misconduct is often a question of fact for the jury,368 but, as another source points out, “[t]he defense provided by the recreational use statute means that causes of action in negligence can be dismissed, and in some cases, causes of action in gross negligence also may be dismissed.”369 Depending on the language of a particular recrea- tional use statute, some courts have held that a public entity is not liable for a bikeway-related claim. In Stephen F. Austin State University, supra, the bicyclist who was knocked off her bicycle on a bike trail by the university’s water sprinkler alleged “that SFA knew that the use of the sprinkler in the manner and at the time of said use posed a risk of serious injury to others, including the Plaintiff, but that SFA was grossly negli- gent in ignoring and creating that risk.”370 The court stated that the recreational use statute did “not fore- close premises defect claims, but rather limits the land- owner’s liability by raising the plaintiff’s burden of proof to that of gross negligence, malicious intent, or bad faith.”371 The court held that Flynn’s allegations were conclu- sory and insufficient to rebut SFA’s motion to dismiss. Flynn’s allegations failed to demonstrate either that the sprinkler presented an ex- treme risk, that SFA was aware of the risk, or that SFA was consciously indifferent to the sprinkler’s capacity to inflict serious injury. Moreover, Flynn concedes that she was aware of the sprinkler before she encountered it, and as we have already mentioned, the recreational use stat- ute does not obligate a landowner to warn of known condi- tions.372 However, in other jurisdictions a public entity may not be immunized by a recreational use statute if “the injured person can show that the defendant knew that a dangerous condition existed.”373 For example, in Payne v. City of Bellevue,374 involving Washington’s recrea- tional use statute, the plaintiff was injured when his bicycle hit a hole at the edge of a public trail owned and maintained by the city where the city had not posted a sign warning of the danger.375 The court ruled that there was a factual question regarding whether the city knew 367 Cardwell, supra note 1, at 256–57. 368 Stokka v. Cass County Elec. Coop., 373 N.W.2d 911, 915– 16 (N.D. 1985). 369 Centner, supra note 345, at *12–14. 370 Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653 at 659 (internal quotation marks omitted). 371 Id. 372 Id. at 660 (emphasis supplied). 373 Heather L. Foss, Case Comment: Torts—Municipal Cor- porations: Immunity for Injuries Suffered on Any Municipali- ties’ Public Land Allowed by the North Dakota Supreme Court, 79 N. DAK. L. REV. 529, 539. 374 1997 Wash. App. LEXIS 1401 (Wash. Ct. App. 1997) (Un- rept.). 375 Id., 1997 Wash. App. LEXIS 1401 at *1.

31 of a dangerous, artificial, and latent condition on its land but did not post a warning.376 It is possible that because of the nature of a bikeway or bike trail that the state recreational use statute does not apply to exonerate a public entity. In Goodwin v. Carbondale Park District,377 the plaintiff’s injury oc- curred as a result of colliding with a tree that had fallen across a designated bike path in a city park. The court held that the trial court properly dismissed the plain- tiff’s first count against the park district “because the property on which plaintiff was injured was ‘intended or permitted to be used for recreational purposes.’”378 How- ever, the court held that the dismissal of the plaintiff’s second count was improper. A provision of the tort im- munity act, Section 3-107(b), “provide[d] for immunity for both ordinary negligence and willful and wanton misconduct ‘for an injury caused by a condition of…(b) Any hiking, riding, fishing or hunting trail.’”379 The court held that the trial court erred in dismissing the second count because “the paved bike path located in a developed city park” did not “constitute[] a ‘riding trail’….”380 Thus, the trial court “erred in dismissing count II of plaintiff’s complaint sounding in willful and wanton negligence.”381 In another case in which the plaintiff was injured in a bicycle accident on a designated bike path, Graney v. Metropolitan District Commission,382 the district’s main- tenance employees occasionally had to leave vehicles or other items on the path while conducting maintenance or repairs.383 The plaintiff used the path regularly be- cause his bicycle was his principal mode of transporta- tion.384 The Massachusetts recreational use statute (General Laws, Chapter 21, Section 17C) protected only an “owner of land” and required that a plaintiff have used the land for recreational purposes.385 The court held that the defendants had not sustained the burden needed for a summary judgment by showing that they were owners for purposes of the statute.386 Moreover, the defendants had left a pile of mulch on the path for about a week prior to the accident that completely ob- structed the path; at night the plaintiff could not see the pile, which was in the middle of the path.387 The court held that even if the recreational use statute ap- 376 Id. at *12. 377 268 Ill. App. 3d 489, 644 N.E.2d 512 (Ill. App. 5th Dist. 1994). 378 Id. at 491, 644 N.E.2d at 513 (citation omitted). 379 Id. (quoting Local Government and Governmental Em- ployees Tort Immunity Act § 3-107(b)). 380 Id. at 492, 644 N.E.2d at 514. 381 Id. at 494, 644 N.E.2d at 515. 382 2001 Mass. Super. LEXIS 352 (Mass. Super. Ct. 2001) (Unrept.). 383 Id., 2001 Mass. Super. LEXIS at *4. 384 Id. 385 Id. at *12. 386 Id. 387 Id. at *4, 5. plied, it was by no means clear that the defendants were not liable for willful, wanton, or reckless con- duct.388 The basis for the plaintiff’s claim was not the defendants’ inaction but the defendants’ affirmative conduct in leaving obstacles on the path.389 In sum, depending on the conditions and the appli- cable recreational use statute, a public entity may have immunity for accidents on bikeways and in other areas under the state’s recreational use immunity statute. Although the statutes vary, a fairly common provision is that an owner, lessee, or occupant of premises owes no duty of care to keep the premises safe for entry and use for recreational purposes or to give any warning of a hazardous or dangerous condition. Another fairly common provision is that owners, lessees, and occu- pants may be liable only for a willful or malicious fail- ure to warn or guard against a known dangerous condi- tion or use of the property. Guidance As discussed previously, if a recreational use statute is applicable it may provide a public entity with immu- nity for a bikeway-related claim that the public entity would not have had under an applicable tort claims act. As explained hereafter, a public entity may be able to rely on a recreational use statute even if the bicyclist was not engaged in a recreational use of the bikeway or area at the time of the accident giving rise to the claim against a public entity. A3. Recovery of Attorney’s Fees One state’s recreational use statute provides that the prevailing party in a civil action may recover reason- able attorney’s fees.390 B. Whether Public Entities Are Owners Under Recreational Use Statutes A threshold issue is whether a recreational use stat- ute applies and therefore immunizes the conduct of public entities when sued for alleged negligence for ac- cidents on bikeways. Although a few statutes exclude governmental owners,391 some of the statutes clearly provide that an owner includes any public entity, in- cluding any agency of the federal or state government or a political subdivision of the state.392 Land also may 388 Id. at *20. 389 Id. 390 COLO. REV. STAT. § 33-41-105.5 (2009). 391 See, e.g., N.C. GEN. STAT. § 38A-2(4) (2009) (defining owner as an individual or nongovernmental entity); OHIO REV. CODE § 1533.181 (2009) (applicable to privately owned, non- residential premises); R.I. GEN. LAWS § 32-6-2(3) (2009) (appli- cable to a private owner). 392 ALA. CODE § 35-15-21; ARK. CODE § 33-1551 (2009) (“pub- lic or private owner”); COLO. REV. STAT. § 33-41-102(4.5) (2009); FLA. STAT. § 375.251(2)(a) (2009) (refers only to an owner or lessee of a park area); 745 ILL. COMP. STAT. 65/2 (2009) (stating that the term “owner” includes the State and its political subdivisions); IND. CODE §§ 14-22-10-2(a) and (c) (2009) (defining governmental entity to include the United

32 be defined under the recreational use statutes to in- clude roads.393 Regardless of whether the term owner is defined specifically to include public entities, the stat- utes typically define an owner to include the possessor of a fee interest, a lessee, an occupant, or a person in control of the premises.394 States, the State, counties, cities, towns, and townships having a fee interest in, being a tenant, lessee, or an occupant of or in control of a tract of land); LA. REV. STAT. § 2795E.(2)(a) (2009) (applying to public parks owned, leased, or managed by the State or its political subdivisions); MD. CODE § 1105.1(1) (2009) (stating that the provisions of §§ 5-1103 and 5-1104 are appli- cable to any unit of local government as an owner of land); MASS. GEN. LAWS, tit. 21 § 17C(b) (2009) (providing that the term person includes “any governmental body, agency, or in- strumentality”); MO. STAT. § 537.345(3) (2009) (stating that an owner includes a governmental agency); MONT. CODE §§ 70-16- 302(2)(c) and (d) (2009) (providing that a landowner includes a governmental or quasi-governmental entity and that property includes roads); N.H. REV. STAT. § 508:14(I) (2009) (including the state or any political subdivision); N.D. CENTURY CODE § 53-08-01(2) (2009) (public and private land); OR. REV. STAT. § 105.688 (2009) (all public and private land); TENN. CODE ANN. § 70-7-101(2)(A) (2009) (stating that “landowner” includes any governmental entity); TEX. CIV. PRAC. & REM. CODE § 75.003(e) (2009) (chapter applicable to governmental units); UTAH CODE ANN. § 57-14-2(2) (2009) (public or private land); WASH. REV. CODE § 4.24-210(1) and (2) (2009) (public or pri- vate owners). 393 ARIZ. REV. STAT. § 33-1551(C)(3) (2009); ARK. CODE § 18- 11-302(2) (2009); COLO. REV. STAT. § 33-41-102(2) (2009); CONN. GEN. STAT. § 52-557f(2) (2009); DEL. CODE tit. 7 § 5902(1) (2009); GA. CODE § 51-3-21(2) (2009); HAW. REV. STAT. § 520-2 (2009); IDAHO STAT. § 36-1604(b)(2) (2009); 745 ILL. COMP. STAT. 65/2(a) (2009); KAN. STAT. § 58-3202(a) (2009); KY. REV. STAT. § 411.190(1)(a) (2009); LA. REV. STAT. § 2795(A)(1) (2009); MD. CODE § 5-1101(d)(1) (2009); MINN. STAT. ANN. § 604A-21(3) (2009); MONT. CODE ANN. § 70-16- 302(2)(d) (2009); NEB. STAT. ANN. § 37-729(1) (2009); N.D. CENT. CODE § 53-08-01(2) (2009); OR. REV. STAT. ANN. § 105.688(1)(b) (2009); PA. CONSOL. STAT. § 477-2(1) (2009); R.I. GEN. LAWS § 32-6-2(2) (2009); S.C. CODE § 27-3-20(a) (2009); TEX. CIV. PRAC. & REM. CODE § 75.001(2) (2009); UTAH CODE § 19-25-5(2) (2009); WYO. STAT. § 34-19-101(a)(i) (2009). 394 ARK. CODE § 18-11-302(3) (2009); COLO. REV. STAT. § 33- 41-102 (2009); CONN. GEN. STAT. § 52-557f (2009); GA. CODE § 51-3-21(3) (2009); HAW. REV. STAT. § 520-2 (2009); IDAHO STAT. § 36-1604(3) (2009); 745 ILL. COMP. STAT. 65/2(b) (2009) (owner includes the State and its political subdivisions); IND. CODE § 14-22-10-2(a)(c) (2009); IOWA CODE § 461C.2(2) (2009); KAN. STAT. § 58-3202(b) (2009); KY. REV. STAT. §§ 150.645(1) and 411.190 (2009); LA. REV. STAT. § 9.2795(2) (2009); MD. CODE §§ 5-1101(d)(1) and (2)(e) (2009) (providing that land includes roads, paths, and trails and that “owner” means the owner of any estate or other interest in real property); MASS. GEN. LAWS, tit. 21 § 17C(a) (2009) (statute applying to “any person having an interest in land”); MINN. STAT. § 604A.21(4) (2009); NEB. REV. STAT. § 37-729(2) (2009); N.J. STAT. ANN. § 2A:42A- 3(a) (2009); N.M. Stat. Ann. § 17-4-7(A) (2009); N.Y. GEN. OBLIG. LAW § 9-103(1)(a) (2009); PA. CONS. STAT. § 477-2(1) (2009); R.I. GEN. LAWS § 32-6-2(3) (2009); S.D. COD. LAWS § 20- 9-12(4) (2009); WYO. STAT. § 34-19-101(a)(ii) (2009). Thus, by its terms the recreational use statute in at least 15 states applies to public entities.395 However, in another 19 states the courts have construed the state recreational use statute to apply to public entities.396 For example, in 2007 a California court held that a city is immune from accidents on a bikeway in a public park owned by the local municipality.397 The court held that the plaintiff’s “claim that trail immunity does not apply because his accident occurred outside the confines of the bikeway is likewise without merit,” because a “gateway to or from a bike path is patently an integral part of the bike path.”398 As discussed in Section VII.C.3, infra, the courts generally are not concerned with how an injured party was using the property at the time of the injury.399 In Boaldin v. University of Kansas,400 the Kansas Supreme Court held that recreational use immunity protected the University of Kansas from a claim by a student who was injured while sledding on a part of university prop- erty.401 First, the court held that “[u]nder the plain and unambiguous wording of the statute, a governmental entity which permits public property to be used as a park, playground, or open area for recreational pur- poses is immune from damages arising from negli- gence.”402 Second, in response to the plaintiff’s argument that the recreational use statute only applied to mu- nicipalities, the court looked to the state’s tort claims act that defined a governmental entity to mean the state or a municipality.403 Third, in response to the plaintiff’s argument that the university’s hill where sledding traditionally occurred was not a recreational area within the meaning of the recreational use statute, the court held that it was not necessary under the stat- ute for the area to have been designated as a recrea- tional area, only that it was open to recreational use.404 A local tort claims statute may include an exception from liability for governmental entities providing rec- 395 Alabama, Arkansas, Colorado, Illinois, Indiana, Mary- land, Massachusetts, Montana, New Hampshire, North Da- kota, Oregon, Tennessee, Texas, Utah, and Washington. 396 Arizona, California, Connecticut, Georgia, Kansas, Ken- tucky, Louisiana, Maine, Michigan, Minnesota, New Mexico, New York, Nevada, Ohio, Pennsylvania, South Carolina, South Dakota, Virginia, and Wisconsin. Robin C. Miller, Annotation, Effect of Statute Limiting Landowner’s Liability for Personal Injury to Recreational User, 47 A.L.R. 4th 262 (1986) and 2009 Supp. 397 Prokop v. City of L.A., 150 Cal. App. 4th 1332, 59 Cal. Rptr. 3d 355 (Cal. App. 4th Dist. 2007), review denied, 2007 Cal. LEXIS 8791 (Cal., Aug. 15, 2007). 398 Id. at 1342, 59 Cal. Rptr. 3d at 362. 399 Will Wohlford, Comment: The Recreational Use Immunity of the Kansas Tort Claims Act: An Exception or the Rule?, 52 KAN. L. REV. 211, 230 (2003). 400 242 Kan. 288, 747 P.2d 811 (Kan. 1987). 401 Id. at 288–89, 747 P.2d at 812. 402 Id. at 291, 747 P.2d at 813. 403 Id. at 291, 747 P.2d at 814. 404 Id. at 290–91, 747 P.2d at 813.

33 reational areas. For instance, in Illinois, Section 3-106 of the tort immunity act provides for immunity for local public entities against negligence claims arising from “the existence of a condition of any public property in- tended or permitted to be used for recreational pur- poses.”405 To determine the applicability of such a stat- ute in a particular case, “[t]he relevant inquiry…is based on ‘the character of the property, rather than the injured party’s use of that property.’”406 However, some state courts have construed their state recreational use statute to “exclude governmental entities.”407 In 1965, the Nebraska legislature enacted a Recreational Liability Act that granted immunity to landowners “who allowed recreational use of their prop- erty free of charge.”408 Although the Nebraska Supreme Court had previously held that the state and its subdi- visions qualified as landowners under the statute,409 the court in 2006 in Bronsen v. Dawes County410 overruled its prior precedent. It should be noted, however, that “states with judicial rulings excluding governmental entities from recreational use statutes have seen legis- lative amendments specifically including the State and its political subdivisions.”411 Elsewhere there are some states whose courts have held that public entities are not landowners within the meaning of the state’s recreational use statute. For in- stance, a federal court in Vermont held that the state’s recreational use statute does not protect municipalities that construct bike paths.412 The Supreme Court of 405 745 ILL. COMP. STAT. 10/3-106. 406 Diamond v. Springfield Metro. Exposition Auditorium Auth., 44 F.3d 599, 602 (7th Cir. 1995) (affirming a district court’s entry of summary judgment based on the recreational use statute for the public entity that owned the convention center, used for a variety of purposes including recreational ones, where the plaintiff fell in an underground tunnel while attending a business conference) (citation omitted). 407 Sean D. White, Note, Governmental Liability for Recrea- tional Uses of Public Land: Brosen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006), 87 NEB. L. REV. 569, 591 N 156, hereinafter cited as “White” (citing Conway v. Town of Wilton, 680 A.2d 242 (Conn. 1996); Monteville v. Terrebonne Parish Consol. Gov’t, 567 So. 2d 1097 (La. 1990); Hovland v. City of Grand Forks, 1997 ND 95, 563 N.W.2d 384 (N.D. 1997); Stamper v. Kanawha County Bd. of Educ., 191 W. Va. 297, 445 S.E.2d 238 (W. Va. 1994)). 408 White, supra note 407, at 570 (citing NEB. REV. STAT. §§ 37-729–37-736 (2006)). 409 Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981). 410 272 Neb. 320, 329, 722 N.W.2d 17, 24 (2006) (holding that the term “owner of land” under the State’s recreational use statute could not be construed to include governmental entities). 411 White, supra note 407, at 592 (citing LA. REV. STAT. §§ 9:2791, 9:2795 (2008) and N.D. CENT. CODE §§ 53008-01–53- 08-06 (2005); Olson v. Bismark Parks and Recreation Dist., 642 N.W.2d 864 (N.D. 2002)). 412 Gretkowski v. City of Burlington, 50 F. Supp. 2d 292, 293 (D. Vt. 1998) (holding that VT. STAT. ANN. tit. 19, § 2309 (Supp. North Dakota held that the City of Grand Forks could not claim immunity under the state’s recreational use statute for injuries suffered by an inline skater while skating on a city bike path.413 Finally, it may be noted that a state’s recreational use statute may provide the United States with immu- nity that it otherwise may not have had under the FTCA. In Cagle v. United States,414 Tennessee’s recrea- tional use statute protected the United States from li- ability for the plaintiff’s son’s injuries sustained while at Shiloh National Military Park, when a cannon fell on his thumb and knee. In Umpleby v. United States,415 the Eighth Circuit held that North Dakota’s recreational use statute applied to the U.S. Army Corps of Engi- neers. In Palmer v. United States,416 a district court in Hawaii held that the State’s recreational use statute applied and immunized the United States from liability for an injury on the stairs of a swimming pool of a gov- ernment medical center. In sum, in approximately 35 states a recreational use immunity statute applies to public entities either because of the statutory terms or judicial construction of the statute. Furthermore, for a recreational use stat- ute to apply and immunize a public entity, it may not have been necessary for an area where a bicycle acci- dent occurred to have been designated as a recreational area, only that the area was open to recreational use. C. Whether Bikeways Come Within the Meaning of Recreational Use Statutes C1. Whether Recreational Use Statutes Are Applicable to Bicycling As one article states, “[r]eaders hoping for a succinct and precise definition [of recreational use] will be dis- appointed.”417 As the Wisconsin Supreme Court has stated, [t]he line between recreational and non-recreational ac- tivities is difficult to draw under Wis. Stat. § 895.52, and 1997) that granted immunity to landowners for injuries sus- tained on bicycle routes constructed on a landowner’s property did not protect municipalities that constructed bike paths but that the city was immune for the exercise of a governmental function). 413 Hovland v. City of Grand Forks, 1997 ND 95, *P10, 563 N.W.2d 384, 387 (N.D. 1997) (stating that the recreational use law was intended to encourage landowners to open their land to the public for recreational purposes and that when the law was enacted, public entities already had immunity from liabil- ity in all civil actions). See also City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 414 (Ind. App. 4th Dist. 1987) (holding that “the Recreational User Statute does not apply to the state or its units”). 414 937 F.2d 1073 (6th Cir. 1991). 415 806 F.2d 812 (8th Cir. 1986). 416 742 F. Supp. 1068 (D.C. Haw. 1990). 417 Stuart J. Ford, Comment: Wisconsin’s Recreational Use Statute: Towards Sharpening the Picture at the Edges, WIS. L. REV. 491 (1991), hereinafter cited as “Ford.”

34 the issue has been litigated with some frequency. We con- tinue to be frustrated in our efforts to state a test that can be applied easily because of the seeming lack of basic underlying principles in the statute.418 Most recreational use statutes provide that a recrea- tional use or purpose “includes, but is not limited, to” various recreational activities without specifically men- tioning bicycling or biking.419 However, as for what con- stitutes a recreational use or purpose, several of the recreational use statutes do include bicycling or bik- ing.420 Nearly all jurisdictions provide for an extensive list of recreational activities ranging from between “seven and twenty…with a catch-all clause such as ‘in- cluding but not limited to….’”421 Wisconsin broadly de- fines “recreational activity” as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure including practice or instruction in such activ- ity.”422 In Scott v. Rockford Park District,423 the plaintiff was injured when his bicycle struck a crack in a bridge on a paved bike path that was open to the public for recrea- tional use.424 The bridge was owned and maintained by both the district and the city and provided access from the park’s corner for persons using the recreational path, as well as the facilities in the park.425 The court found that, in Illinois, Section 3-107(a) of 745 Illinois Compiled Statutes 10/3-107 (West 1992) grants full immunity for access roads to fishing, hunting, primitive camping areas, recreational, and scenic areas, and af- firmed the lower court’s summary judgment in favor of 418 Auman v. Sch. Dist. of Stanley-Boyd, 248 Wis. 2d 548, 558, 635 N.W.2d 762, 767 (Wis. 2001) (footnote omitted). 419 ALA. CODE § 35-15-21 (2009); ARIZ. REV. STAT. § 33-1551 (2009) (“ride…or engage in similar pursuits”); ARK. CODE § 18- 11-302(N) (2009) (also states “any other activity undertaken for exercise, education, relaxation or pleasure”); CAL. CIV. CODE § 846 (2009) (“riding”); FLA. STAT. § 375.251(5) (2009) (“include, but not necessarily be limited to….”); HAW. REV. STAT. § 520-2 (2009); MD. CODE § 5-1101(f) (2009) (“any recreational pur- suit”); N.M. STAT. ANN. § 17-4-7(A) (2009) (“any other recrea- tional use”); PA. CONS. STAT. § 477-2(3) (2009); R.I. GEN. LAWS § 32-6-2 (2009); S.C. CODE § 27-3-20(c) (2009); UTAH CODE § 57-14-2(3) (2009); WYO. STAT. § 34-19-101(a)(iii) (2009). 420 COLO. REV. STAT. §§ 33-41-102(5) and 33-41-103 (2009) (paths, trails, and bicycling); IDAHO STAT. § 36-3604.4(4) (2009); KY. REV. STAT. § 411.190(c) (2009); LA. REV. STAT. § 2795(A)(3) (2009); MINN. STAT. §§ 604A.21(5) and (6) (2009); MO. STAT. § 537.345(4) (2009); MONT. CODE § 70-16-301 (2009); NEV. REV. STAT. § 41.150(4)(h) (2009) (applies to “mountain bicycle”); N.J. STAT. ANN. § 2A:42A-2 (2009) (applies to “dirt bikes”); N.Y. GEN. OBLIG. LAW § 9-103(1)(a) (2009); R.I. GEN. LAWS § 32-6-2(4) (2009); S.D. COD. LAWS § 20-9-12(3) (2009); TEX. CIV. PR. & REM. CODE § 75.001(M) (2009); VT. STAT. ANN., tit. 12 § 5792(4) (2009); W. VA. CODE ANN. § 19-25-5(5) (2009); WASH. REV. CODE § 4.24.210(1) (2009). 421 Ford, supra note 417, at 526–27 (citation omitted). 422 Cardwell, supra note 1, at 267 (footnotes omitted). 423 263 Ill. App. 3d 853, 636 N.E.2d 1075 (Ill. App. 2d Dist. 1994), appeal denied, 157 Ill. 2d 522, 642 N.E.2d 1303 (1994). 424 Id. at 854, 636 N.E.2d at 1076. 425 Id. the defendants.426 In Kern v. City of Sioux Falls,427 the plaintiffs were injured while rollerblading on a city- owned bike trail when they fell as a result of an uneven section of the trail.428 The city had immunity because under the recreational use statute, South Dakota Codi- fied Laws, Section 20-9-13, landowners have immunity when allowing their land to be used for outdoor recrea- tional purposes.429 However, there are some cases in which the courts have held that a public entity did not have immunity with regard to a bikeway. For example, in Walker v. City of Scottsdale,430 the plaintiff was injured in a fall that occurred on a designated bike path in a residential community.431 Based on the language of the recreational use statute, the court concluded that the legislature did not intend to grant blanket immunity to all landowners without regard to the characteristics of the property.432 The statutory immunity did not apply when the prem- ises in question were not “agricultural, range, mining or forest lands, and any other similar lands.”433 Assuming that bicycling is either specifically enu- merated in a recreational use statute or that the courts have construed or would construe the statute to apply to bicycling, at least two other issues are presented. One issue is whether the premises, for example a bike- way, must be primarily or exclusively for recreational use for the recreational use statute to apply. Another issue is whether a bicyclist must have been using the property for a recreational purpose at the time of the accident. Both issues are discussed in the next subsec- tions. C2. Whether a Bikeway Must Be Primarily or Exclusively for Recreational Use According to the holding in a majority of the cases, a bikeway does not have to be primarily or exclusively for recreational use for public entities to have recreational use immunity. The issue is illustrated by Prokop v. City of Los Angeles,434 in which Prokop sought damages for injuries he sustained while bicycling along a bikeway designed by the city.435 When he sought to exit a path through an opening for bicycles he collided with a chain link fence. He alleged that the city had created a dan- gerous condition and that the bikeway’s design was faulty.436 In particular he maintained that the bicycle path was a Class I bikeway under the California Streets 426 Id. at 857, 636 N.E.2d at 1078. 427 1997 S.D. 19, 560 N.W.2d 236 (1997). 428 Id. at *2, 560 N.W.2d at 237. 429 Id. at *7, 8, 560 N.W.2d at 238. 430 163 Ariz. 206, 786 P.2d 1057 (Ariz. Ct. App. 1989). 431 Id. at 207, 786 P.2d at 1058. 432 Id. at 214, 786 P.2d at 1064. 433 Id. at 210, 786 P.2d at 1061. 434 150 Cal. App. 4th 1332, 59 Cal. Rptr. 3d 355 (Cal. App. 2d Dist. 2007). 435 Id. at 1335, 59 Cal. Rptr. 3d at 356. 436 Id.

35 and Highway Code Section 890.4, and that the city was required but had failed to conform the bikeway to Chapter 100 of the California Highway Design Manual, entitled “Bikeway Planning and Design.”437 The court held that a Class I bikeway is a trail within the meaning of California Government Code Section 831.4(b), which provides that “[a] public en- tity…is not liable for an injury caused by a condition of…[a]ny trail used” for the purposes described in the statute.438 The plaintiff argued that the city had a man- datory duty under the California Bicycle Transportation Act to “utilize all minimum safety design criteria and uniform specifications and symbols for signs, markers, and uniform traffic control devices”; however, the court held that the city still had immunity under Section 831.4(b).439 Relying on prior California precedent,440 the court held that a Class I bikeway, which by definition is not open to vehicular traffic, does not qualify as a street or highway and that the statute did not exempt from im- munity “any trails that might be part of the street and highway system in general.”441 Moreover, there was immunity for the bikeway accident regardless of whether the plaintiff alleged faulty design or mainte- nance of the bikeway.442 Furthermore, any mandatory duty that the city had under the Streets and Highway Code was still subject to any immunity that the city had by statute.443 However, in Prokop the court also stated that [b]ecause of the legislative blending of paved bike paths (which are used principally for recreation) into the bicycle transportation system (which the Legislature established to achieve functional commuting needs), it may be appro- priate for the Legislature to reexamine the trail immu- nity statute and its application to class I bikeways in ur- ban areas.444 In Baggio v. Chicago Park District,445 the court also addressed the plaintiff’s claim that there was a factual question of whether the property where the accident occurred had “a solely recreational intended or permit- ted purpose.”446 The court held, however, that immunity depends on the character of the property and “[t]he fact that the property may have both a recreational and 437 Id. at 1335–36, 59 Cal. Rptr. 3d at 356. 438 Id. at 1336, 59 Cal. Rptr. 3d at 357. 439 Id. at 1337, 59 Cal. Rptr. 3d at 357 (citing California Bi- cycle Transportation Act, CAL. STS. & HY. CODE § 891). 440 Farnham v. City of Los Angeles, 68 Cal. App. 4th 1097, 80 Cal. Rptr. 2d 720 (Cal. App. 2d Dist. 1998), review denied (Apr. 14, 1999). 441 Prokop, 150 Cal. App. 4th at 1340, 59 Cal. Rptr. 3d at 361. 442 Id. at 1341–42, 59 Cal. Rptr. 3d at 362. 443 Id. at 1341, 59 Cal. Rptr. 3d at 361. 444 Id. at 1342–43, 59 Cal. Rptr. 3d at 362–63. 445 289 Ill. App. 3d 768, 682 N.E.2d 429 (Ill. App. 1st Dist. 1997). 446 Id. at 772, 682 N.E.2d at 432. nonrecreational purpose would not defeat the applica- bility of the [recreational use] statute.”447 However, regarding the possibility that a bikeway may be used for more than one purpose, the court in Hovland v. City of Grand Forks448 came to a different conclusion. The court held that the recreational use statute did not shield a public entity from liability for a rollerblading accident on a city bike path. The court stated that there was possible disparate treatment of users of the bike path depending on the purpose for which they used it, meaning that a public entity in ef- fect may have a lower standard of care depending on whether a bikeway is being used by a recreational user rather than by a commuter. If public lands were granted immunity for all recreational activities, Caroline could not recover for her injuries be- cause she was using the bike path for a recreational use, but had she been using the bike path for a non- recreational use she would be allowed to recover. This in- terpretation allows the government to treat two classes of persons injured on public lands differently: it forbids re- covery for personal injuries incurred during recreational activities, but permits recovery for personal injuries in- curred during non-recreational activities. The recrea- tional use immunity statute was created to encourage private landowners to permit public access to private lands. In the context of public access to private lands, the disparate treatment of recreational users seems to make sense. In the context of public access to public lands, the disparate treatment is much harder to understand. 449 In holding that the recreational use statute did not apply to the city and in remanding the case, the court also observed that because the City’s interpretation of the recreational use statute limits recovery for personal injury, we would ex- amine the classification under an intermediate standard of review. Specifically, we would determine whether there is a “close correspondence between statutory classification and legislative goals.” The legislative history does not dis- close any reason why a recreational user of public lands could not recover for personal injuries when a non- recreational user could. Without a close correspondence with legislative goals supporting this classification, the statute might well fail an equal protection challenge un- der an intermediate standard of review.450 No other case was located that suggested that such a de facto classification of users of the same bikeway could be unconstitutional. Although the case did not involve a bikeway acci- dent, similar issues were addressed in Auman v. School Dist. of Stanley-Boyd.451 The plaintiff was a student, a minor, who was injured at school during recess while sliding down a snow pile on the school playground. In holding that the student had come to school for educa- 447 Id. (affirming the dismissal of the plaintiff’s claim be- cause “at least one use of the harbor was recreational”). 448 1997 N.D. 95, 563 N.W.2d 384 (1997). 449 Id. at P13, 563 N.W.2d at 388. 450 Id. at P16, 563 N.W.2d at 388 (footnote omitted). 451 248 Wis. 2d 548, 558, 635 N.W.2d 762, 767 (Wis. 2001).

36 tional purposes and not to engage in recreational activ- ity, the court identified some guidelines for determining whether an activity at the time of an accident is an ac- tivity within the meaning of the recreational use stat- ute. Although the injured person’s subjective assessment of the activity is pertinent, it is not controlling. A court must consider the nature of the property, the nature of the owner’s activity, and the reason the injured person is on the property. A court should consider the totality of cir- cumstances surrounding the activity, including the in- trinsic nature, purpose, and consequences of the activity. A court should apply a reasonable person standard to de- termine whether the person entered the property to engage in a recreational activity. Finally, a court should consider whether the activity in question was undertaken in cir- cumstances substantially similar “to the circumstances of recreational activities set forth in the statute.”452 The court concluded that the premises were primar- ily for educational activity, of which recreation was only an incidental part; hence, the recreational use statute did not apply. When we apply the totality of the circumstances and the objectively reasonable person tests to determine whether Trista’s activity is recreational under the statute, we con- clude that the small part of Trista’s school activity that could be considered “recreational” in ordinary parlance does not render her entering the school district’s property as entering the property for the purposes of a recreational activity under the recreational immunity statute. Under the objective reasonable person test, not every outdoor ac- tivity is a recreational activity nor is every form of child’s play a recreational activity under Wis. Stat. § 895.52.453 In contrast to the Auman case, in some states the is- sue for the courts is whether the property is intended or permitted to be used for recreational purposes. For ex- ample, in Kansas it has been held that “K.S.A. 75- 6104(o) merely requires that the location be ‘intended or permitted to be used…for recreational purposes.’… [T]he injury need not be the result of recreation. The minimum amount of recreational use must be some- thing more than incidental.”454 In some jurisdictions, assuming the state recreational use statute applies to public entities as well as to bicycling, as long as the recreational use is more than merely incidental, a pub- lic entity may be protected from liability under the statute. Thus, “an injury need not occur during the course of a recreational activity for the recreational use exception to apply.”455 Furthermore, “a particular facil- 452 Id. at 559, 635 N.W.2d at 767–68 (emphasis supplied) (footnotes omitted). 453 Id. at 561, 635 N.W.2d at 768–69. 454 Jackson v. Unified Sch. Dist. No. 259, 29 Kan. App. 2d 826, 831, 31 P.3d 989, 993 (Kan. Ct. App. 2001) (holding that the recreational use of the gymnasium was beyond an inciden- tal use and qualified as recreational use under the statute) (some internal quotation marks omitted). 455 Lane v. Atchison Heritage Conference Center, 283 Kan. 439, 445, 153 P.3d 541, 546 (2007). ity must be viewed collectively to determine whether it is used for recreational purposes.”456 In Lane v. Atchison Heritage Conference Center, the Supreme Court of Kansas rejected a “primary purpose” test in determining whether the recreational use stat- ute applied;457 “the correct test…is ‘whether the prop- erty has been used for recreational purposes in the past or whether recreation has been encouraged.’”458 The court quoted from the Bubb459decision by the Illinois Supreme Court that similarly rejected a “primary pur- pose” analysis: “‘Nothing in the statute requires an ex- amination of the property’s primary purpose.’”460 Other cases have held that a state’s recreational use statute applies to a bikeway or trail owned and desig- nated as such by a public entity. The South Dakota Su- preme Court held that the state’s recreational use stat- ute entitled the city to immunity when a person was injured while rollerblading on a bike trail in a city park.461 In California, in Armenio v. County of San Mateo,462 the plaintiff alleged that he fell as the result of a dangerous condition created by the county’s improper patching of a surfaced trail.463 The court rejected his argument that California Government Section 831.4 grants immunity “only to roads or trails providing ac- cess to the recreational activities enumerated in subdi- vision (a), or to unimproved property, and not to trails on which the activity takes place.”464 The court held that under Section 831.4, “the nature of the trail’s surface is irrelevant to question of immunity.”465 Importantly, in Farnham v. City of Los Angeles,466 the court held that even though the bikeway was part of the public streets and highways, a county bikeway on which a bicyclist was injured was a trail within the meaning of the statute granting public entities immu- nity for injuries on recreational trails. In Farnham, the plaintiff was injured on a Class I bikeway, which Cali- fornia Streets and Highway Code Section 890.4 defines as a facility used “primarily for bicycle travel.”467 A Class I bikeway such as a bike path “provide[s] a com- pletely separated right-of-way designed for the exclu- sive use of bicycles and pedestrians with cross flows by 456 Id. at 445, 153 P.3d at 546. 457 Id. at 447, 153 P.3d at 547 (emphasis in original). 458 Id. (citation omitted). 459 Bubb v. Springfield Sch. Dist., 263 Ill. App. 3d 942, 636 N.E.2d 4 (1994). 460 283 Kan. at 450, 153 P.3d at 549 (emphasis in original) (citation omitted). 461 Kern v. City of Sioux Falls, 1997 S.D. 19, at *10, 560 N.W.2d 236, 239 (S.D. 1997). 462 28 Cal. App. 4th 413, 33 Cal. Rptr. 2d 631 (Cal. App. 1st Dist. 1994). 463 Id. at 415, 33 Cal. Rptr. 2d at 633. 464 Id. at 417, 33 Cal. Rptr. 2d at 634. 465 Id. at 418, 33 Cal. Rptr. 2d at 635. 466 68 Cal. App. 4th 1097, 80 Cal. Rptr. 2d 720 (Cal. App. 2d Dist. 1998), review denied (Apr. 14, 1999). 467 CAL. STS. & HY. CODE § 890.4.

37 motorists minimized.”468 A Class I bikeway thus has some segments that are “subject to either contiguous or cross-vehicular traffic,”469 but such a bikeway “is not open to vehicular traffic.”470 The court held that, because the bikeway was a trail within the meaning of California Government Code Section 831.4(b), the city had immunity from the claim.471 The court noted that the plaintiff had argued that “when a governmental entity undertakes to im- prove or create a paved trail in what is essentially an urban area, it should have the duty to reasonably main- tain the condition thereof or face tort liability. He ar- gues that his position is in line with traditional con- cepts of governmental tort liability.”472 The court’s response was that it is burdensome for public entities to inspect and repair bikeways, because they are subject to changing irregularity of surface conditions due to seismic movement, natural settlement, or stress from traffic. Additionally, the weather can cause dirt or sand to be blown on a trail, creating an unsafe surface for almost any user. Rocks, tree branches and other debris often find their way onto a trail.473 According to the opinion, the cost to the governments from a “plethora of litigation…might well cause cities or counties to reconsider allowing the operation of a bicy- cle path, which, after all, produces no revenue.”474 Thus, whether to amend Section 831.4 as interpreted by the courts was a matter for the legislature to decide.475 Other elements or appurtenances of bikeways may come within the protection of recreational use statutes. As held in Dinelli v. County of Lake,476 a public entity has immunity based on the recreational use statute for a bicycle accident occurring on a “midblock bicycle trail crosswalk,”477 because “the crosswalk was part of the [bicycle path] system which was designed and imple- mented for recreational purposes.”478 Even if the cross- walk itself was not intended for recreational use, it in- creased the usefulness of the bikeway and therefore qualifies under the recreational use statute.479 However, 468 Farnham, 68 Cal. App. 4th at 1099, 80 Cal. Rptr. 2d at 721 (quoting CAL. STS. & HY. CODE § 890.4). 469 Id. at 1099, 80 Cal. Rptr. 2d at 721. 470 Id. at 1101, 80 Cal. Rptr. 2d at 723. 471 Id. at 1100, 80 Cal. Rptr. 2d at 722. 472 Id. at 1102, 80 Cal. Rptr. 2d at 723. 473 Id. at 1103, 80 Cal. Rptr. 2d at 724. 474 Id. 475 Id. 476 294 Ill. App. 3d 876, 691 N.E.2d 394 (Ill. App. 2d Dist 1994) (plaintiffs alleging negligence in the design and mainte- nance of the crosswalk). 477 Id. at 878, 691 N.E.2d at 395. 478 Id. at 882, 691 N.E.2d at 398. 479 Id. at 881, 691 N.E.2d at 397 (citing 745 ILL. COMP. STAT. 10/3/-106). a recreational use statute was held not to apply when a walkway was not appropriate for bicycle riding.480 In sum, the foregoing cases hold that a bikeway does not have to be devoted primarily or exclusively to rec- reational use for a public entity to have recreational use immunity. Of course, for there to be immunity a bike- way would have to be in a state in which the recrea- tional use statute applies to public entities as well as to bicycles. C3. Whether a Bicyclist’s Purpose or Intent in Using a Bikeway Is Relevant In some cases a bicyclist’s purpose or intent at the time of the accident in using property intended for rec- reational use was at issue. The Supreme Judicial Court of Massachusetts addressed the issue in Ali v. City of Boston.481 The plaintiff collided with a gate and sus- tained injuries while riding his bicycle thorough a city park.482 The plaintiff argued that “because he was in- jured while using the park for a nonrecreational pur- pose (that is, to ride home from the store),” the state recreational use statute did not apply.483 The court held that “[t]he plaintiff’s contention that his subjective in- tent should govern the issue of landowner liability is illogical….”484 “To condition a landowner’s liability on the recreational user’s subjective intent would only in- vite mischief and deceit. It matters not that the plain- tiff’s purpose was transportation…. What matters is that [he was] engaging in recreational pursuits permit- ted in the park.”485 The trial court only needs to “determine whether the plaintiff is permitted to be in the park because he is engaged in an objectively recreational activity. The plaintiff, having entered the park on his bicycle, was clearly engaged in an objectively recreational activ- ity….”486 Thus, the plaintiff’s claim was barred by the recreational use statute. In a number of other cases the courts also have held that recreational use immunity was available to a pub- lic entity even though at the time of the accident the user of the property intended for recreational use was not using the property for a recreational purpose.487 In 480 Diaz v. N.Y. City Hous. Auth., 159 Misc. 2d 72, 75, 602 N.Y.S.2d 1019, 1021 (New York Sup. Ct. 1993). 481 441 Mass. 233, 804 N.E.2d 927 (2004). 482 Id. at 233–34, 804 N.E.2d at 928–29. 483 Id. at 233–34, 804 N.E.2d at 929. 484 Id. at 238, 804 N.E.2d at 932. 485 Id. 486 Id. at 238, 804 N.E.2d at 931. 487 Kayser v. Vill. of Warren, 303 Ill. App. 3d 198, 203, 707 N.E.2d 285, 289 (Ill. App. 2d Dist. 1999) (holding that a com- munity building was public property intended or permitted to be used for recreational purposes and the statute was not lim- ited to sportive or active recreation), appeal denied (Ill., June 2, 1999); Poston v. Unified Sch. Dist. No. 387, 37 Kan. App. 2d 694, 696, 156 P.3d 685, 687 (Kan Ct. App. 2007 (stating that the recreational use statute only requires that the property be intended or permitted to be used for recreational purposes, not

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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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