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NCHRP Legal Research Digest 53: Liability Aspects of Bikeways (2010)
National Cooperative Highway Research Program Legal Program (NCHRPLEGL)

Citation Manager

Thomas, Larry W, Transportation Research Board. "C. Responsibility for Designating Bikeways." NCHRP Legal Research Digest 53: Liability Aspects of Bikeways. Washington, DC: The National Academies Press, 2010.

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COVER (1-1)
CONTENTS (2-2)
SECTION 1. FEDERAL LAWS ENCOURAGING THE DESIGNATION AND USE OF BIKEWAYS (3-3)
A. Introduction (4-4)
B. Whether a Public Entity Has a Duty to a Bicyclist (5-5)
C. Whether a Public Entity's Alleged Negligence Was the Proximate Cause of the Plaintiff's Claim (6-6)
A. Interplay Between a Tort Claims Act and a Recreational Use Statute in Bikeway-Accident Claims Against Public Entities (7-7)
B. Immunity From Bikeway Claims Under Some Recreational Use Statutes (8-8)
A. State Tort Claims Acts (9-9)
B. No General Duty to Install or Provide Highway Signs, Signals, or Pavement Markings (10-10)
C. Whether a Public Entity Had Notice of a Dangerous Condition (11-11)
D. The Governmental/Proprietary Test Applicable to Municipal Corporations in Some States (12-12)
A. The Meaning of the Discretionary Function Exemption (13-13)
B. The Meaning of the Discretionary Function Exemption in State Tort Claims Acts (14-15)
C. The Discretionary Function Exemption and Bikeway Claims Against Public Entities (16-16)
D. Immunity for Negligent Design Based on a Statutory Exemption for Discretionary Activity (17-19)
E. Application of the Discretionary Exemption to the Maintenance of Bikeways (20-20)
A. Warning Signs (21-21)
B. Traffic Control Devices (22-22)
C. Stop Signs and Speed Limit Signs (23-23)
D. Pavement Markings (24-24)
F. Guardrails and Barriers (25-25)
G. Shoulders and Adjacent Areas (26-26)
H. Requirement That Bicyclists Be Intended or Permitted Users (27-27)
A. Overview of Recreational Use Statutes (28-30)
B. Whether Public Entities Are Owners Under Recreational Use Statutes (31-32)
C. Whether Bikeways Come Within the Meaning of Recreational Use Statutes (33-37)
A. Localities' Laws and Policies Regarding Bikeways (38-38)
B. Types of Bikeways (39-39)
C. Responsibility for Designating Bikeways (40-40)
D. Design and Maintenance Guidance for Bikeways (41-41)
E. Localities' Reported Litigation over Bikeway Designations (42-42)
CONCLUSION (43-44)
APPENDIX A. SURVEY QUESTIONS (45-45)
APPENDIX B. LIST OF AGENCIES RESPONDING TO SURVEY QUESTIONS (46-47)
APPENDIX C. STATE RECREATIONAL USE STATUTES (48-49)
APPENDIX D. CASE/ISSUE INDEX (50-54)
ACKNOWLEDGMENTS (55-55)
BACK COVER (56-56)

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40 (1) a shared facility whereby both vehicles and bicycles C. Responsibility for Designating Bikeways may operate on the through lanes, parking lanes or shoulders of a street or highway, (2) a pathway on a In California, local authorities, such as a city, street or highway right-of-way, on public land other than county, or other local agency, may be expressly author- a street or highway right-of-way, or on lands not owned ized by the state to establish bikeways and to acquire by a municipality, local unit of government, county, or the the land necessary to establish bikeways.515 In addition, State of Illinois or one of its agencies or authorities by California agreement with the owner for a minimum duration of 20 does not prohibit local authorities from establishing, by 510 years. ordinance or resolution, bicycle lanes separated from any In California the state transportation law defines a vehicular lanes upon highways, other than state high- bikeway as all facilities that provide primarily for bicy- ways as defined in Section 24 of the Streets and High- cle travel and establishes three categories of bikeways. ways Code and county highways established pursuant to Article 5 (commencing with Section 1720) of Chapter 9 of (a) Class I bikeways, such as a "bike path," which provide Division 2 of the Streets and Highways Code. 516 a completely separated right-of-way designated for the exclusive use of bicycles and pedestrians with crossflows By statute, California required that by motorists minimized. [t]he Association of Bay Area Governments shall develop and adopt a plan and implementation program, including (b) Class II bikeways, such as a "bike lane," which provide a financing plan, for a continuous recreational corridor a restricted right-of-way designated for the exclusive or which will extend around the perimeter of San Francisco semiexclusive use of bicycles with through travel by mo- and San Pablo Bays. The plan shall include a specific tor vehicles or pedestrians prohibited, but with vehicle route of a bicycling and hiking trail, the relationship of parking and crossflows by pedestrians and motorists per- the route to existing park and recreational facilities, and mitted. links to existing and proposed public transportation fa- 517 (c) Class III bikeways, such as an onstreet or offstreet cilities. "bike route," which provide a right-of-way designated by The California Department of Transportation coop- signs or permanent markings and shared with pedestri- erates with county and city governments to establish 511 ans or motorists. bikeways and to "establish minimum safety design cri- According to Minnesota's Bikeway Facility Design teria for the planning and construction of bikeways and Manual, 518 roadways where bicycle travel is permitted." Mini- [b]ikeways include both on-road and off-road facilities, in- mum safety design criteria include "the design speed of cluding bike lanes, paved shoulders, shared lanes, wide the facility, minimum widths and clearances, grade, outside lanes, and shared use paths. Bike lanes, paved radius of curvature, pavement surface, actuation of shoulders, and wide outside lanes allow bicyclists and automatic traffic control devices, drainage, and general motorists to operate parallel to each other in the roadway, safety."519 A city or county may prepare a bicycle trans- maintaining a separation, without requiring motorists to 512 portation plan and submit it to the applicable county change lanes to pass bicyclists. transportation authority.520 The authority then may In sum, there are four basic types of bicycle facilities: submit an approved plan to the state transportation shared roadways (no bikeway designation) on which department and also may seek matching funds from the there is bicycle use on the existing street system with- state to develop a city or county bikeway.521 The law 513 out signing or striping for said use; signed, shared requires that a city or county provide 10 percent of the roadways, which are designated bicycle routes and pro- project's total cost.522 vide continuity to other bicycle facilities (such as bicycle 523 Under the Illinois Bikeway Act, the state Depart- lanes), or the signage designates the preferred route ment of Transportation, whose annual appropriation is through a transportation system; bike lanes, which may to "include funds for the development of bicycle paths be striped; and shared use paths.514 524 and a State-wide bikeways program," is principally responsible for designating bikeways in cooperation with units of local government.525 510 605 ILL. COMP. STAT. 30/2(a). 515 511 CAL. STS. & HY. CODE § 890.4 (2009). CAL. STS. & HY. CODE § 891.8 (2009). 516 512 MINN. DEP'T OF TRANSP., BIKEWAY FACILITY DESIGN CAL. VEH. CODE § 21207 (2009). 517 MANUAL, ch. 3 (General Design Factors), at 60, available at: CAL. PUB. RES. CODE § 5850 (2009). 518 http://www.dot.state.mn.us/bike/pdfs/Chapter%203%20General CAL. STS. & HY. CODE § 890.6 (2009). %20Design%20Factors%20Bw.pdf. 519 Id 513 Ohio Department of Transportation Design Guidance for 520 Id. § 891.4(a) (2009). Roadway-Based Bicycle Facilities (Oct. 2005), found through 521 Id. http://www.dot.state.oh.us/Services/Pages/Bike.aspx. According 522 to the Ohio Department of Transportation, wide curb lanes Id. § 891.4(b) (2009). 523 perform well as shared roadways since motorists are able to 605 ILL. COMP. STAT. 30/1 (2009). 524 pass bicyclists without crossing the center line. 605 ILL. COMP. STAT 30/3 (2009). 514 525 Id. 605 ILL. COMP. STAT 30/4 (2009).