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43 destrian Plan, Statewide Route Network,550 reported one bicyclists and local advocacy groups, in the planning instance involving the denial of a request for a bikeway, and development of bikeways; develop an overall bike- because the request did not meet the requirements of way plan and submit it for approval to the officials hav- the Georgia Bicycle and Pedestrian Plan or satisfy the ing responsibility for implementation; consult applica- required design guidance, but reported no litigation ble manuals and guidelines, including the MUTCD and because of the denial.551 the AASHTO Guide for Bikeway Design; consult compe- North Carolina reported that it has not been in- tent legal counsel to address any concerns about liabil- volved in any litigation regarding the agency's designa- ity; document the reason (or reasons) for any depar- tion or refusal to designate a bikeway. The city of Phoe- tures from design guidelines and ensure that the nix also reported that in the past 24 years the city has documentation is retrievable if there is a lawsuit alleg- not been involved in any litigation regarding its desig- ing faulty design; and have a proactive maintenance nation or refusal to designate a bikeway. program. Phoenix suggests that there is a need for adequate F. Localities' Reported Tort Liability and Bikeway surveillance and maintenance of bikeways, as well as Accidents for an adequately trained staff to observe and report As for tort liability and bikeway accidents, the agen- bikeway conditions. Phoenix states that it rarely has a cies that responded reported very few cases. Although claim involving poor design and that most claims arise Maryland reported that occasionally there has been because of motorist or bicyclist behavior. Phoenix rec- some reluctance at the local and state levels regarding ommends that attention be paid to adequate mainte- the designation of bikeways, liability concerns have nance (e.g., bike surface and landscaping encroach- been a "minor matter" on whether to designate bike- ment) and to nighttime lighting. ways. The NCDOT advised that it was not aware of any tort claims arising out of accidents on bikeways, includ- CONCLUSION ing designated bicycle lanes on streets or highways. Although federal and state laws encourage the des- The North Carolina Attorney General's Office reported ignation and use of bikeways, public entities may be that it was not aware of such a claim since 2000. concerned by potential tort liability for bikeway acci- Phoenix advised that potential tort liability would be dents. However, most public entities have important a reason indirectly to deny establishment of an on- defenses to tort claims for bikeways either under a tort street bicycle facility when there are insufficient re- claims statute applicable to public entities or the state's sources or insufficient space for a safe facility. Phoenix recreational use statute, also applicable to public enti- provided a list of cases that had been settled or other- ties in a clear majority of the states. wise resolved since 1996. Of six cases involving bikeway As discussed in this digest, many decisions that pub- accidents, the city did not have to pay anything to a lic entities make regarding bikeways (e.g., the type or claimant in three cases; three cases settled for $75,000, placement of a bikeway and its design) or related as- $25,000, and $8,000. The remaining 14 bicycle-related pects (e.g., use or placement of signs, signals, guard- claims against the city since 1996 did not involve bike- rails, or pavement markings) involve the exercise of ways. discretion and are immune from liability under the dis- As for how to prevent or reduce tort claims for bike- cretionary function exemption in tort claims acts. The way accidents, the principal recommendation by the agencies responding to the survey either did not report agencies responding to the survey was that significant any tort claims for the alleged negligent design of bike- attention be devoted to maintenance. The NCDOT also ways or stated that they had had few if any such advised that possible liability claims are a concern claims. when engineering judgments do not comply with na- Maintenance activity, such as the failure to replace tionally accepted design guidelines and thus recom- or repair a sign or signal or remove an obstruction from mended that agencies follow accepted design guidelines or repair the surface of a bikeway, gives rise to most for bikeways. Nevertheless, none of the survey respon- tort claims against public entities. Assuming it had an dents reported a bikeway-accident claim arising out of actual or constructive notice prior to an accident, a pub- negligent design. lic entity may be held liable for the failure to correct a dangerous or hazardous condition of a bikeway or for G. Public Entities' Recommendations for the failure to give adequate warning of the condition. Localities Considering Bikeways Several agencies responding to the survey stressed that Maryland recommends that localities seek the assis- a proactive maintenance program for bikeways is im- tance of concerned citizens, particularly of experienced portant to reduce the incidence of bikeway-related tort claims. 550 As noted, a public entity also may have immunity for Information supplied by the Georgia Department of bikeway claims based on the state's recreational use Transportation, State Bicycle and Pedestrian Coordinator, Office of Planning, Atlanta, Ga. statute. Even if bicycling is not enumerated in a recrea- 551 tional use statute, most recreational use statutes are Georgia Department of Transportation Bike/Ped. Design Policy; 1997 Georgia Bicycle and Pedestrian Plan. sufficiently broad to apply to bicycles and bikeways. If a
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44 recreational use statute applies to a bikeway accident, by law for bikeways and bicycles in a highway project. the public entity will have immunity unless it willfully Survey respondents indicated that they follow the or maliciously failed to warn of or guard against a AASHTO standards applicable to bikeways, as well as known dangerous condition or, in some states, commit- their own manuals on the design and maintenance of ted "gross negligence" or engaged in "wanton and reck- bikeways. However, as for tort claims, the survey re- less conduct" or "willful, wanton, or reckless conduct." spondents reported very few claims by bicyclists Assuming the state's recreational use statute applies brought against them for accidents on bikeways, even to a public entity sued for a bikeway accident, the cases for faulty maintenance. One respondent stated that tort hold almost without exception that a recreational use liability concerns are a minor matter when deciding statute applies to a bikeway without it having to be whether to designate a bikeway. primarily or exclusively for recreational use and regard- In sum, as discussed in the digest, although there less of a bicyclist's purpose or intent when using the have been some tort claims against public entities for bikeway at the time of an accident. Thus, it appears bikeway accidents, the defendant public entities pre- that in virtually all jurisdictions in which the recrea- vailed in nearly all cases. Although the report analyzes tional use statute otherwise applies to a public entity public entities' tort liability with respect to bikeways, and bikeways, the public entity will have immunity for the reader is cautioned that tort claims acts, recrea- bikeway accidents regardless of whether bicyclists are tional use immunity statutes, and the courts' interpre- using the bikeway for commuting or for recreation. tations of the law differ from state to state. The nature Based on the responses to the survey and on infor- of the legal issues and principles discussed herein does mation derived from statutes and Web sites for agencies not allow for definitive statements concerning public having bikeways, public entities have laws and policies entities' tort liability for bikeway claims. Accordingly, it regarding the designation of bikeways. Only one public is recommended that anyone relying on this digest entity reported a case, later dismissed, alleging that the should consult with counsel to confirm the rules and public entity failed to make accommodations required their interpretation in his or her state.