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33
reational areas. For instance, in Illinois, Section 3-106 North Dakota held that the City of Grand Forks could
of the tort immunity act provides for immunity for local not claim immunity under the state's recreational use
public entities against negligence claims arising from statute for injuries suffered by an inline skater while
"the existence of a condition of any public property in- skating on a city bike path.413
tended or permitted to be used for recreational pur- Finally, it may be noted that a state's recreational
poses."405 To determine the applicability of such a stat- use statute may provide the United States with immu-
ute in a particular case, "[t]he relevant inquiry...is nity that it otherwise may not have had under the
based on `the character of the property, rather than the FTCA. In Cagle v. United States,414 Tennessee's recrea-
injured party's use of that property.'"406 tional use statute protected the United States from li-
However, some state courts have construed their ability for the plaintiff's son's injuries sustained while
state recreational use statute to "exclude governmental at Shiloh National Military Park, when a cannon fell on
407
entities." In 1965, the Nebraska legislature enacted a his thumb and knee. In Umpleby v. United States,415 the
Recreational Liability Act that granted immunity to Eighth Circuit held that North Dakota's recreational
landowners "who allowed recreational use of their prop- use statute applied to the U.S. Army Corps of Engi-
erty free of charge."408 Although the Nebraska Supreme neers. In Palmer v. United States,416 a district court in
Court had previously held that the state and its subdi- Hawaii held that the State's recreational use statute
409
visions qualified as landowners under the statute, the applied and immunized the United States from liability
court in 2006 in Bronsen v. Dawes County410 overruled for an injury on the stairs of a swimming pool of a gov-
its prior precedent. It should be noted, however, that ernment medical center.
"states with judicial rulings excluding governmental In sum, in approximately 35 states a recreational
entities from recreational use statutes have seen legis- use immunity statute applies to public entities either
lative amendments specifically including the State and because of the statutory terms or judicial construction
its political subdivisions."411 of the statute. Furthermore, for a recreational use stat-
Elsewhere there are some states whose courts have ute to apply and immunize a public entity, it may not
held that public entities are not landowners within the have been necessary for an area where a bicycle acci-
meaning of the state's recreational use statute. For in- dent occurred to have been designated as a recreational
stance, a federal court in Vermont held that the state's area, only that the area was open to recreational use.
recreational use statute does not protect municipalities
that construct bike paths.412 The Supreme Court of C. Whether Bikeways Come Within the Meaning
of Recreational Use Statutes
405
745 ILL. COMP. STAT. 10/3-106.
406
C1. Whether Recreational Use Statutes Are Applicable
Diamond v. Springfield Metro. Exposition Auditorium
Auth., 44 F.3d 599, 602 (7th Cir. 1995) (affirming a district
to Bicycling
court's entry of summary judgment based on the recreational As one article states, "[r]eaders hoping for a succinct
use statute for the public entity that owned the convention and precise definition [of recreational use] will be dis-
center, used for a variety of purposes including recreational appointed."417 As the Wisconsin Supreme Court has
ones, where the plaintiff fell in an underground tunnel while stated,
attending a business conference) (citation omitted).
407
[t]he line between recreational and non-recreational ac-
Sean D. White, Note, Governmental Liability for Recrea- tivities is difficult to draw under Wis. Stat. § 895.52, and
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, 1997) that granted immunity to landowners for injuries sus-
680 A.2d 242 (Conn. 1996); Monteville v. Terrebonne Parish tained on bicycle routes constructed on a landowner's property
Consol. Gov't, 567 So. 2d 1097 (La. 1990); Hovland v. City of did not protect municipalities that constructed bike paths but
Grand Forks, 1997 ND 95, 563 N.W.2d 384 (N.D. 1997); that the city was immune for the exercise of a governmental
Stamper v. Kanawha County Bd. of Educ., 191 W. Va. 297, 445 function).
413
S.E.2d 238 (W. Va. 1994)). Hovland v. City of Grand Forks, 1997 ND 95, *P10, 563
408
White, supra note 407, at 570 (citing NEB. REV. STAT. §§ N.W.2d 384, 387 (N.D. 1997) (stating that the recreational use
37-72937-736 (2006)). law was intended to encourage landowners to open their land
409
Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 to the public for recreational purposes and that when the law
(1981). was enacted, public entities already had immunity from liabil-
410 ity in all civil actions). See also City of Bloomington v.
272 Neb. 320, 329, 722 N.W.2d 17, 24 (2006) (holding
Kuruzovich, 517 N.E.2d 408, 414 (Ind. App. 4th Dist. 1987)
that the term "owner of land" under the State's recreational
(holding that "the Recreational User Statute does not apply to
use statute could not be construed to include governmental
the state or its units").
entities). 414
411 937 F.2d 1073 (6th Cir. 1991).
White, supra note 407, at 592 (citing LA. REV. STAT. §§ 415
9:2791, 9:2795 (2008) and N.D. CENT. CODE §§ 53008-0153- 806 F.2d 812 (8th Cir. 1986).
416
08-06 (2005); Olson v. Bismark Parks and Recreation Dist., 642 742 F. Supp. 1068 (D.C. Haw. 1990).
417
N.W.2d 864 (N.D. 2002)). Stuart J. Ford, Comment: Wisconsin's Recreational Use
412
Gretkowski v. City of Burlington, 50 F. Supp. 2d 292, 293 Statute: Towards Sharpening the Picture at the Edges, WIS. L.
(D. Vt. 1998) (holding that VT. STAT. ANN. tit. 19, § 2309 (Supp. REV. 491 (1991), hereinafter cited as "Ford."
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34
the issue has been litigated with some frequency. We con- the defendants.426 In Kern v. City of Sioux Falls,427 the
tinue to be frustrated in our efforts to state a test that plaintiffs were injured while rollerblading on a city-
can be applied easily because of the seeming lack of basic owned bike trail when they fell as a result of an uneven
418
underlying principles in the statute. section of the trail.428 The city had immunity because
Most recreational use statutes provide that a recrea- under the recreational use statute, South Dakota Codi-
tional use or purpose "includes, but is not limited, to" fied Laws, Section 20-9-13, landowners have immunity
various recreational activities without specifically men- when allowing their land to be used for outdoor recrea-
tioning bicycling or biking.419 However, as for what con- tional purposes.429
stitutes a recreational use or purpose, several of the However, there are some cases in which the courts
recreational use statutes do include bicycling or bik- have held that a public entity did not have immunity
420
ing. Nearly all jurisdictions provide for an extensive with regard to a bikeway. For example, in Walker v.
list of recreational activities ranging from between City of Scottsdale,430 the plaintiff was injured in a fall
"seven and twenty...with a catch-all clause such as `in- that occurred on a designated bike path in a residential
421
cluding but not limited to....'" Wisconsin broadly de- community.431 Based on the language of the recreational
fines "recreational activity" as "any outdoor activity use statute, the court concluded that the legislature did
undertaken for the purpose of exercise, relaxation or not intend to grant blanket immunity to all landowners
432
pleasure including practice or instruction in such activ- without regard to the characteristics of the property.
ity."422 The statutory immunity did not apply when the prem-
423
In Scott v. Rockford Park District, the plaintiff was ises in question were not "agricultural, range, mining or
injured when his bicycle struck a crack in a bridge on a forest lands, and any other similar lands."433
paved bike path that was open to the public for recrea- Assuming that bicycling is either specifically enu-
tional use.424 The bridge was owned and maintained by merated in a recreational use statute or that the courts
both the district and the city and provided access from have construed or would construe the statute to apply
the park's corner for persons using the recreational to bicycling, at least two other issues are presented.
path, as well as the facilities in the park.425 The court One issue is whether the premises, for example a bike-
found that, in Illinois, Section 3-107(a) of 745 Illinois way, must be primarily or exclusively for recreational
Compiled Statutes 10/3-107 (West 1992) grants full use for the recreational use statute to apply. Another
immunity for access roads to fishing, hunting, primitive issue is whether a bicyclist must have been using the
camping areas, recreational, and scenic areas, and af- property for a recreational purpose at the time of the
firmed the lower court's summary judgment in favor of accident. Both issues are discussed in the next subsec-
tions.
418
Auman v. Sch. Dist. of Stanley-Boyd, 248 Wis. 2d 548,
558, 635 N.W.2d 762, 767 (Wis. 2001) (footnote omitted). C2. Whether a Bikeway Must Be Primarily or Exclusively
419
ALA. CODE § 35-15-21 (2009); ARIZ. REV. STAT. § 33-1551 for Recreational Use
(2009) ("ride...or engage in similar pursuits"); ARK. CODE § 18-
11-302(N) (2009) (also states "any other activity undertaken for
According to the holding in a majority of the cases, a
exercise, education, relaxation or pleasure"); CAL. CIV. CODE § bikeway does not have to be primarily or exclusively for
846 (2009) ("riding"); FLA. STAT. § 375.251(5) (2009) ("include, recreational use for public entities to have recreational
but not necessarily be limited to...."); HAW. REV. STAT. § 520-2 use immunity. The issue is illustrated by Prokop v. City
434
(2009); MD. CODE § 5-1101(f) (2009) ("any recreational pur- of Los Angeles, in which Prokop sought damages for
suit"); N.M. STAT. ANN. § 17-4-7(A) (2009) ("any other recrea- injuries he sustained while bicycling along a bikeway
tional use"); PA. CONS. STAT. § 477-2(3) (2009); R.I. GEN. LAWS designed by the city.435 When he sought to exit a path
§ 32-6-2 (2009); S.C. CODE § 27-3-20(c) (2009); UTAH CODE § through an opening for bicycles he collided with a chain
57-14-2(3) (2009); WYO. STAT. § 34-19-101(a)(iii) (2009). link fence. He alleged that the city had created a dan-
420
COLO. REV. STAT. §§ 33-41-102(5) and 33-41-103 (2009) gerous condition and that the bikeway's design was
(paths, trails, and bicycling); IDAHO STAT. § 36-3604.4(4) faulty.436 In particular he maintained that the bicycle
(2009); KY. REV. STAT. § 411.190(c) (2009); LA. REV. STAT.
path was a Class I bikeway under the California Streets
§ 2795(A)(3) (2009); MINN. STAT. §§ 604A.21(5) and (6) (2009);
MO. STAT. § 537.345(4) (2009); MONT. CODE § 70-16-301 (2009);
426
NEV. REV. STAT. § 41.150(4)(h) (2009) (applies to "mountain Id. at 857, 636 N.E.2d at 1078.
bicycle"); N.J. STAT. ANN. § 2A:42A-2 (2009) (applies to "dirt 427
1997 S.D. 19, 560 N.W.2d 236 (1997).
bikes"); N.Y. GEN. OBLIG. LAW § 9-103(1)(a) (2009); R.I. GEN. 428
Id. at *2, 560 N.W.2d at 237.
LAWS § 32-6-2(4) (2009); S.D. COD. LAWS § 20-9-12(3) (2009); 429
TEX. CIV. PR. & REM. CODE § 75.001(M) (2009); VT. STAT. Id. at *7, 8, 560 N.W.2d at 238.
430
ANN., tit. 12 § 5792(4) (2009); W. VA. CODE ANN. § 19-25-5(5) 163 Ariz. 206, 786 P.2d 1057 (Ariz. Ct. App. 1989).
431
(2009); WASH. REV. CODE § 4.24.210(1) (2009). Id. at 207, 786 P.2d at 1058.
421 432
Ford, supra note 417, at 52627 (citation omitted). Id. at 214, 786 P.2d at 1064.
422 433
Cardwell, supra note 1, at 267 (footnotes omitted). Id. at 210, 786 P.2d at 1061.
423 434
263 Ill. App. 3d 853, 636 N.E.2d 1075 (Ill. App. 2d Dist. 150 Cal. App. 4th 1332, 59 Cal. Rptr. 3d 355 (Cal. App.
1994), appeal denied, 157 Ill. 2d 522, 642 N.E.2d 1303 (1994). 2d Dist. 2007).
424 435
Id. at 854, 636 N.E.2d at 1076. Id. at 1335, 59 Cal. Rptr. 3d at 356.
425 436
Id. Id.
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35
and Highway Code Section 890.4, and that the city was nonrecreational purpose would not defeat the applica-
required but had failed to conform the bikeway to bility of the [recreational use] statute."447
Chapter 100 of the California Highway Design Manual, However, regarding the possibility that a bikeway
entitled "Bikeway Planning and Design."437 may be used for more than one purpose, the court in
The court held that a Class I bikeway is a trail Hovland v. City of Grand Forks448 came to a different
within the meaning of California Government Code conclusion. The court held that the recreational use
Section 831.4(b), which provides that "[a] public en- statute did not shield a public entity from liability for a
tity...is not liable for an injury caused by a condition rollerblading accident on a city bike path. The court
of...[a]ny trail used" for the purposes described in the stated that there was possible disparate treatment of
statute.438 The plaintiff argued that the city had a man- users of the bike path depending on the purpose for
datory duty under the California Bicycle Transportation which they used it, meaning that a public entity in ef-
Act to "utilize all minimum safety design criteria and fect may have a lower standard of care depending on
uniform specifications and symbols for signs, markers, whether a bikeway is being used by a recreational user
and uniform traffic control devices"; however, the court rather than by a commuter.
held that the city still had immunity under Section If public lands were granted immunity for all recreational
439
831.4(b). activities, Caroline could not recover for her injuries be-
Relying on prior California precedent,440 the court cause she was using the bike path for a recreational use,
held that a Class I bikeway, which by definition is not but had she been using the bike path for a non-
open to vehicular traffic, does not qualify as a street or recreational use she would be allowed to recover. This in-
highway and that the statute did not exempt from im- terpretation allows the government to treat two classes of
munity "any trails that might be part of the street and persons injured on public lands differently: it forbids re-
covery for personal injuries incurred during recreational
highway system in general."441 Moreover, there was
activities, but permits recovery for personal injuries in-
immunity for the bikeway accident regardless of
curred during non-recreational activities. The recrea-
whether the plaintiff alleged faulty design or mainte- tional use immunity statute was created to encourage
nance of the bikeway.442 Furthermore, any mandatory private landowners to permit public access to private
duty that the city had under the Streets and Highway lands. In the context of public access to private lands, the
Code was still subject to any immunity that the city had disparate treatment of recreational users seems to make
by statute.443 sense. In the context of public access to public lands, the
449
However, in Prokop the court also stated that disparate treatment is much harder to understand.
[b]ecause of the legislative blending of paved bike paths In holding that the recreational use statute did not
(which are used principally for recreation) into the bicycle apply to the city and in remanding the case, the court
transportation system (which the Legislature established also observed that
to achieve functional commuting needs), it may be appro-
because the City's interpretation of the recreational use
priate for the Legislature to reexamine the trail immu-
statute limits recovery for personal injury, we would ex-
nity statute and its application to class I bikeways in ur-
444 amine the classification under an intermediate standard
ban areas.
of review. Specifically, we would determine whether there
In Baggio v. Chicago Park District,445 the court also is a "close correspondence between statutory classification
addressed the plaintiff's claim that there was a factual and legislative goals." The legislative history does not dis-
question of whether the property where the accident close any reason why a recreational user of public lands
occurred had "a solely recreational intended or permit- could not recover for personal injuries when a non-
ted purpose."446 The court held, however, that immunity recreational user could. Without a close correspondence
with legislative goals supporting this classification, the
depends on the character of the property and "[t]he fact
statute might well fail an equal protection challenge un-
that the property may have both a recreational and 450
der an intermediate standard of review.
No other case was located that suggested that such a
437
Id. at 133536, 59 Cal. Rptr. 3d at 356. de facto classification of users of the same bikeway
438
Id. at 1336, 59 Cal. Rptr. 3d at 357. could be unconstitutional.
439
Id. at 1337, 59 Cal. Rptr. 3d at 357 (citing California Bi- Although the case did not involve a bikeway acci-
cycle Transportation Act, CAL. STS. & HY. CODE § 891). dent, similar issues were addressed in Auman v. School
440
Farnham v. City of Los Angeles, 68 Cal. App. 4th 1097, Dist. of Stanley-Boyd.451 The plaintiff was a student, a
80 Cal. Rptr. 2d 720 (Cal. App. 2d Dist. 1998), review denied minor, who was injured at school during recess while
(Apr. 14, 1999). sliding down a snow pile on the school playground. In
441
Prokop, 150 Cal. App. 4th at 1340, 59 Cal. Rptr. 3d at holding that the student had come to school for educa-
361.
442 447
Id. at 134142, 59 Cal. Rptr. 3d at 362. Id. (affirming the dismissal of the plaintiff's claim be-
443
Id. at 1341, 59 Cal. Rptr. 3d at 361. cause "at least one use of the harbor was recreational").
448
444
Id. at 134243, 59 Cal. Rptr. 3d at 36263. 1997 N.D. 95, 563 N.W.2d 384 (1997).
449
445
289 Ill. App. 3d 768, 682 N.E.2d 429 (Ill. App. 1st Dist. Id. at P13, 563 N.W.2d at 388.
450
1997). Id. at P16, 563 N.W.2d at 388 (footnote omitted).
446 451
Id. at 772, 682 N.E.2d at 432. 248 Wis. 2d 548, 558, 635 N.W.2d 762, 767 (Wis. 2001).
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36
tional purposes and not to engage in recreational activ- ity must be viewed collectively to determine whether it
ity, the court identified some guidelines for determining is used for recreational purposes."456
whether an activity at the time of an accident is an ac- In Lane v. Atchison Heritage Conference Center, the
tivity within the meaning of the recreational use stat- Supreme Court of Kansas rejected a "primary purpose"
ute. test in determining whether the recreational use stat-
Although the injured person's subjective assessment of ute applied;457 "the correct test...is `whether the prop-
the activity is pertinent, it is not controlling. A court must erty has been used for recreational purposes in the past
consider the nature of the property, the nature of the or whether recreation has been encouraged.'"458 The
owner's activity, and the reason the injured person is on court quoted from the Bubb459decision by the Illinois
the property. A court should consider the totality of cir- Supreme Court that similarly rejected a "primary pur-
cumstances surrounding the activity, including the in- pose" analysis: "`Nothing in the statute requires an ex-
trinsic nature, purpose, and consequences of the activity. amination of the property's primary purpose.'"
460
A court should apply a reasonable person standard to de-
Other cases have held that a state's recreational use
termine whether the person entered the property to engage
statute applies to a bikeway or trail owned and desig-
in a recreational activity. Finally, a court should consider
whether the activity in question was undertaken in cir- nated as such by a public entity. The South Dakota Su-
cumstances substantially similar "to the circumstances of preme Court held that the state's recreational use stat-
recreational activities set forth in the statute."
452
ute entitled the city to immunity when a person was
injured while rollerblading on a bike trail in a city
The court concluded that the premises were primar-
park.461 In California, in Armenio v. County of San
ily for educational activity, of which recreation was only 462
an incidental part; hence, the recreational use statute Mateo, the plaintiff alleged that he fell as the result of
a dangerous condition created by the county's improper
did not apply.
patching of a surfaced trail.463 The court rejected his
When we apply the totality of the circumstances and the
argument that California Government Section 831.4
objectively reasonable person tests to determine whether
grants immunity "only to roads or trails providing ac-
Trista's activity is recreational under the statute, we con-
clude that the small part of Trista's school activity that cess to the recreational activities enumerated in subdi-
could be considered "recreational" in ordinary parlance vision (a), or to unimproved property, and not to trails
does not render her entering the school district's property on which the activity takes place."464 The court held that
as entering the property for the purposes of a recreational under Section 831.4, "the nature of the trail's surface is
activity under the recreational immunity statute. Under irrelevant to question of immunity."465
the objective reasonable person test, not every outdoor ac- Importantly, in Farnham v. City of Los Angeles,466
tivity is a recreational activity nor is every form of child's the court held that even though the bikeway was part of
453
play a recreational activity under Wis. Stat. § 895.52. the public streets and highways, a county bikeway on
In contrast to the Auman case, in some states the is- which a bicyclist was injured was a trail within the
sue for the courts is whether the property is intended or meaning of the statute granting public entities immu-
permitted to be used for recreational purposes. For ex- nity for injuries on recreational trails. In Farnham, the
ample, in Kansas it has been held that "K.S.A. 75- plaintiff was injured on a Class I bikeway, which Cali-
6104(o) merely requires that the location be `intended or fornia Streets and Highway Code Section 890.4 defines
permitted to be used...for recreational purposes.'... as a facility used "primarily for bicycle travel."467 A
[T]he injury need not be the result of recreation. The Class I bikeway such as a bike path "provide[s] a com-
minimum amount of recreational use must be some- pletely separated right-of-way designed for the exclu-
thing more than incidental."454 In some jurisdictions, sive use of bicycles and pedestrians with cross flows by
assuming the state recreational use statute applies to
public entities as well as to bicycling, as long as the
456
recreational use is more than merely incidental, a pub- Id. at 445, 153 P.3d at 546.
457
lic entity may be protected from liability under the Id. at 447, 153 P.3d at 547 (emphasis in original).
statute. Thus, "an injury need not occur during the 458
Id. (citation omitted).
course of a recreational activity for the recreational use 459
Bubb v. Springfield Sch. Dist., 263 Ill. App. 3d 942, 636
455
exception to apply." Furthermore, "a particular facil- N.E.2d 4 (1994).
460
283 Kan. at 450, 153 P.3d at 549 (emphasis in original)
(citation omitted).
461
452 Kern v. City of Sioux Falls, 1997 S.D. 19, at *10, 560
Id. at 559, 635 N.W.2d at 76768 (emphasis supplied)
N.W.2d 236, 239 (S.D. 1997).
(footnotes omitted). 462
453 28 Cal. App. 4th 413, 33 Cal. Rptr. 2d 631 (Cal. App. 1st
Id. at 561, 635 N.W.2d at 76869.
454
Dist. 1994).
Jackson v. Unified Sch. Dist. No. 259, 29 Kan. App. 2d 463
Id. at 415, 33 Cal. Rptr. 2d at 633.
826, 831, 31 P.3d 989, 993 (Kan. Ct. App. 2001) (holding that 464
the recreational use of the gymnasium was beyond an inciden- Id. at 417, 33 Cal. Rptr. 2d at 634.
465
tal use and qualified as recreational use under the statute) Id. at 418, 33 Cal. Rptr. 2d at 635.
466
(some internal quotation marks omitted). 68 Cal. App. 4th 1097, 80 Cal. Rptr. 2d 720 (Cal. App. 2d
455
Lane v. Atchison Heritage Conference Center, 283 Kan. Dist. 1998), review denied (Apr. 14, 1999).
467
439, 445, 153 P.3d 541, 546 (2007). CAL. STS. & HY. CODE § 890.4.
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37
motorists minimized."468 A Class I bikeway thus has a recreational use statute was held not to apply when a
some segments that are "subject to either contiguous or walkway was not appropriate for bicycle riding.480
cross-vehicular traffic,"469 but such a bikeway "is not In sum, the foregoing cases hold that a bikeway does
open to vehicular traffic."470 not have to be devoted primarily or exclusively to rec-
The court held that, because the bikeway was a trail reational use for a public entity to have recreational use
within the meaning of California Government Code immunity. Of course, for there to be immunity a bike-
Section 831.4(b), the city had immunity from the way would have to be in a state in which the recrea-
claim.471 The court noted that the plaintiff had argued tional use statute applies to public entities as well as to
that "when a governmental entity undertakes to im- bicycles.
prove or create a paved trail in what is essentially an
urban area, it should have the duty to reasonably main- C3. Whether a Bicyclist's Purpose or Intent in Using a
tain the condition thereof or face tort liability. He ar- Bikeway Is Relevant
gues that his position is in line with traditional con- In some cases a bicyclist's purpose or intent at the
cepts of governmental tort liability."472 time of the accident in using property intended for rec-
The court's response was that it is burdensome for reational use was at issue. The Supreme Judicial Court
public entities to inspect and repair bikeways, because of Massachusetts addressed the issue in Ali v. City of
they Boston.
481
The plaintiff collided with a gate and sus-
are subject to changing irregularity of surface conditions tained injuries while riding his bicycle thorough a city
due to seismic movement, natural settlement, or stress park.482 The plaintiff argued that "because he was in-
from traffic. Additionally, the weather can cause dirt or jured while using the park for a nonrecreational pur-
sand to be blown on a trail, creating an unsafe surface for pose (that is, to ride home from the store)," the state
almost any user. Rocks, tree branches and other debris 483
473 recreational use statute did not apply. The court held
often find their way onto a trail.
that "[t]he plaintiff's contention that his subjective in-
According to the opinion, the cost to the governments tent should govern the issue of landowner liability is
from a "plethora of litigation...might well cause cities or illogical...."484 "To condition a landowner's liability on
counties to reconsider allowing the operation of a bicy- the recreational user's subjective intent would only in-
cle path, which, after all, produces no revenue."474 Thus, vite mischief and deceit. It matters not that the plain-
whether to amend Section 831.4 as interpreted by the tiff's purpose was transportation.... What matters is
courts was a matter for the legislature to decide.475 that [he was] engaging in recreational pursuits permit-
Other elements or appurtenances of bikeways may ted in the park."485
come within the protection of recreational use statutes. The trial court only needs to "determine whether the
As held in Dinelli v. County of Lake,476 a public entity plaintiff is permitted to be in the park because he is
has immunity based on the recreational use statute for engaged in an objectively recreational activity. The
a bicycle accident occurring on a "midblock bicycle trail plaintiff, having entered the park on his bicycle, was
crosswalk,"477 because "the crosswalk was part of the clearly engaged in an objectively recreational activ-
[bicycle path] system which was designed and imple- ity...."486 Thus, the plaintiff's claim was barred by the
mented for recreational purposes."478 Even if the cross- recreational use statute.
walk itself was not intended for recreational use, it in- In a number of other cases the courts also have held
creased the usefulness of the bikeway and therefore that recreational use immunity was available to a pub-
479
qualifies under the recreational use statute. However, lic entity even though at the time of the accident the
user of the property intended for recreational use was
487
not using the property for a recreational purpose. In
468 480
Farnham, 68 Cal. App. 4th at 1099, 80 Cal. Rptr. 2d at Diaz v. N.Y. City Hous. Auth., 159 Misc. 2d 72, 75, 602
721 (quoting CAL. STS. & HY. CODE § 890.4). N.Y.S.2d 1019, 1021 (New York Sup. Ct. 1993).
469 481
Id. at 1099, 80 Cal. Rptr. 2d at 721. 441 Mass. 233, 804 N.E.2d 927 (2004).
470 482
Id. at 1101, 80 Cal. Rptr. 2d at 723. Id. at 23334, 804 N.E.2d at 92829.
471 483
Id. at 1100, 80 Cal. Rptr. 2d at 722. Id. at 23334, 804 N.E.2d at 929.
472 484
Id. at 1102, 80 Cal. Rptr. 2d at 723. Id. at 238, 804 N.E.2d at 932.
473 485
Id. at 1103, 80 Cal. Rptr. 2d at 724. Id.
474 486
Id. Id. at 238, 804 N.E.2d at 931.
475 487
Id. Kayser v. Vill. of Warren, 303 Ill. App. 3d 198, 203, 707
476
294 Ill. App. 3d 876, 691 N.E.2d 394 (Ill. App. 2d Dist N.E.2d 285, 289 (Ill. App. 2d Dist. 1999) (holding that a com-
1994) (plaintiffs alleging negligence in the design and mainte- munity building was public property intended or permitted to
nance of the crosswalk). be used for recreational purposes and the statute was not lim-
477 ited to sportive or active recreation), appeal denied (Ill., June 2,
Id. at 878, 691 N.E.2d at 395.
478
1999); Poston v. Unified Sch. Dist. No. 387, 37 Kan. App. 2d
Id. at 882, 691 N.E.2d at 398. 694, 696, 156 P.3d 685, 687 (Kan Ct. App. 2007 (stating that
479
Id. at 881, 691 N.E.2d at 397 (citing 745 ILL. COMP. STAT. the recreational use statute only requires that the property be
10/3/-106). intended or permitted to be used for recreational purposes, not
