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4 through several legislative initiatives.9 The 2005 Safe, The Safe Routes to School Program provides funding Accountable, Flexible, and Efficient Transportation for planning, designing, and constructing infrastruc- Equity Act--A Legacy for Users Act (SAFETEA-LU)10 ture-related projects that will improve substantially the advocates the designation of bikeways. Multimodal ability of students to walk and bicycle to school, includ- paths are encouraged and in some instances required. ing sidewalk improvements, speed-reduction improve- Bicycle transportation and pedestrian walkways are ments, pedestrian and bicycle crossing improvements, eligible for the National Highway System.11 Under on-street bicycle facilities, off-street bicycle and pedes- Transportation Improvement Programs, each metro- trian facilities, secure bicycle parking facilities, and politan area is to provide for the development, inte- traffic diversion improvements in the vicinity of grated management, and operation of transportation schools.16 Infrastructure-related projects may be imple- systems and facilities that are part of accessible pedes- mented for any public road or any bicycle or pedestrian 17 trian walkways and bicycle transportation facilities pathway or trail in the vicinity of schools. Funding that function as part of an intermodal transportation may be used to encourage walking and bicycling to system.12 Each metropolitan planning organization is to school.18 provide citizens and other interested parties with a rea- With respect to the National Park Service, under the sonable opportunity to comment on a transportation service-wide regulations for vehicles and traffic safety 13 plan. The term "transportation enhancement activity" in national park and forest property, "[t]he use of a bi- means any project or area to be served by select activi- cycle is prohibited except on park roads, in parking ar- ties, including facilities for pedestrians and bicycles.14 eas and on routes designated for bicycle use."19 If a trail Abandoned railway corridors are preserved for future is not in a developed area or special-use zone, a park is use while allowing interim use as pedestrian or bicycle required to adopt a special regulation to designate a 15 20 trails. route for bicycle use. The 1968 National Trails System Act21 established a 9 For a list of federal funding sources regarding the estab- program to preserve railroad rights-of-way no longer lishment of bikeways, see, e.g., 23 U.S.C. 217 (2009). The being used for operational railroad lines to avoid aban- following sections of the 2005 Safe, Accountable, Flexible, Effi- donment of the rights-of-way and preserve them for use cient Transportation Equity Act--A Legacy for Users as recreational trails.22 (SAFETEA-LU) contain provisions relating to bicycles and Thus, federal laws and programs encourage the des- bicycle safety: 1404 (Safe Routes to School Program) and 1411 (Roadway Safety). See Department of Transportation, ignation and use of bikeways. Federal Highway Administration, Bicycle and Pedestrian Pro- visions in (SAFETEA-LU) Not Codified in Title 23, available at SECTION II. TORT CLAIMS AGAINST A PUBLIC, last ENTITY FOR BIKEWAY ACCIDENTS accessed on Dec. 10, 2009; 1401(a)(1), 119 Stat. 7219, amend- ing 23 U.S.C. 148 (Highway Safety Improvement Program); 1109 (b)(e), 119 Stat. 11681170, amending 23 U.S.C. 206 A. Introduction (Recreational Trails); and 1807, 119 Stat. 1460 (Nonmotor- Although federal and state laws support the use of ized Transportation Pilot Program) and 1954, 119 Stat. 1515, bikeways, tort claims against public entities may arise amending 23 U.S.C. 217 (Bicycle Transportation and Pedes- as a result of accidents involving bikeways and possibly trian Walkway). See U.S. Department of Transportation, Fed- subject public entities to liability. eral Highway Administration, Bicycle and Pedestrian Legisla- tion in Title 23 United States Code (U.S.C.), available at For a plaintiff to maintain a tort action against a, last public entity, the plaintiff must show that the public accessed on Dec. 10, 2009. See also Department of Transporta- defendant owed a duty to him or her that the defendant tion, Federal Highway Administration, Summary of Highway negligently performed or failed to perform. The showing Safety Provisions in SAFETEA-LU, available at of both the existence of a duty and its breach are criti-, last accessed cal, because "[w]ithout duty, there can be no breach of Dec. 10, 2009. duty, and without breach of duty there can be no liabil- 10 23 Pub. L. No. 109-59, 119 Stat. 1144 (codified as amended ity." The plaintiff must establish that the public au- in scattered sections of Title 23 of the U.S.C.). See 23 U.S.C. thority had an "obligation to conform to a particular 139, 325, and 326 (all references to 23 U.S.C. are to the 2009 standard of conduct toward another to which the law supplement to the 2002 edition, unless otherwise noted). 11 23 U.S.C. 103(b)(6)(k). 12 Id. 134(a)(2), (c). 13 16 Id. 134(i)(5)(A) (for example, affected public agencies, Id. 402(f)(1)(A). 17 representatives of public transportation employees, freight Id. 402(f)(1)(B). shippers, providers of freight transportation services, private 18 Id. 402(f)(2)(A). providers of transportation, representatives of users of public 19 36 C.F.R. 4.30(a) (2009). transportation, representatives of users of pedestrian walk- 20 ways and bicycle transportation facilities, and representatives Id. 4.30(b) (2009). 21 of the disabled). 16 U.S.C. 12411251. 22 14 Id. 101(a)(35)(A). Id. 1247(d). 23 15 Id. 101(a)(35)(H). 79 N.Y. Jur. 2d, Negligence 16.