National Academies Press: OpenBook

Liability Aspects of Bikeways (2010)

Chapter: CONCLUSION

« Previous: SECTION VIII. LOCAL LAW AND POLICY REGARDING THE DESIGNATION OF BIKEWAYS
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Suggested Citation:"CONCLUSION." 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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Page 43
Page 44
Suggested Citation:"CONCLUSION." 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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Page 44

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43 destrian Plan, Statewide Route Network,550 reported one instance involving the denial of a request for a bikeway, because the request did not meet the requirements of the Georgia Bicycle and Pedestrian Plan or satisfy the required design guidance, but reported no litigation because of the denial.551 North Carolina reported that it has not been in- volved in any litigation regarding the agency’s designa- tion or refusal to designate a bikeway. The city of Phoe- nix also reported that in the past 24 years the city has not been involved in any litigation regarding its desig- nation or refusal to designate a bikeway. F. Localities’ Reported Tort Liability and Bikeway Accidents As for tort liability and bikeway accidents, the agen- cies that responded reported very few cases. Although Maryland reported that occasionally there has been some reluctance at the local and state levels regarding the designation of bikeways, liability concerns have been a “minor matter” on whether to designate bike- ways. The NCDOT advised that it was not aware of any tort claims arising out of accidents on bikeways, includ- ing designated bicycle lanes on streets or highways. The North Carolina Attorney General’s Office reported that it was not aware of such a claim since 2000. Phoenix advised that potential tort liability would be a reason indirectly to deny establishment of an on- street bicycle facility when there are insufficient re- sources or insufficient space for a safe facility. Phoenix provided a list of cases that had been settled or other- wise resolved since 1996. Of six cases involving bikeway accidents, the city did not have to pay anything to a claimant in three cases; three cases settled for $75,000, $25,000, and $8,000. The remaining 14 bicycle-related claims against the city since 1996 did not involve bike- ways. As for how to prevent or reduce tort claims for bike- way accidents, the principal recommendation by the agencies responding to the survey was that significant attention be devoted to maintenance. The NCDOT also advised that possible liability claims are a concern when engineering judgments do not comply with na- tionally accepted design guidelines and thus recom- mended that agencies follow accepted design guidelines for bikeways. Nevertheless, none of the survey respon- dents reported a bikeway-accident claim arising out of negligent design. G. Public Entities’ Recommendations for Localities Considering Bikeways Maryland recommends that localities seek the assis- tance of concerned citizens, particularly of experienced 550 Information supplied by the Georgia Department of Transportation, State Bicycle and Pedestrian Coordinator, Office of Planning, Atlanta, Ga. 551 Georgia Department of Transportation Bike/Ped. Design Policy; 1997 Georgia Bicycle and Pedestrian Plan. bicyclists and local advocacy groups, in the planning and development of bikeways; develop an overall bike- way plan and submit it for approval to the officials hav- ing responsibility for implementation; consult applica- ble manuals and guidelines, including the MUTCD and the AASHTO Guide for Bikeway Design; consult compe- tent legal counsel to address any concerns about liabil- ity; document the reason (or reasons) for any depar- tures from design guidelines and ensure that the documentation is retrievable if there is a lawsuit alleg- ing faulty design; and have a proactive maintenance program. Phoenix suggests that there is a need for adequate surveillance and maintenance of bikeways, as well as for an adequately trained staff to observe and report bikeway conditions. Phoenix states that it rarely has a claim involving poor design and that most claims arise because of motorist or bicyclist behavior. Phoenix rec- ommends that attention be paid to adequate mainte- nance (e.g., bike surface and landscaping encroach- ment) and to nighttime lighting. CONCLUSION Although federal and state laws encourage the des- ignation and use of bikeways, public entities may be concerned by potential tort liability for bikeway acci- dents. However, most public entities have important defenses to tort claims for bikeways either under a tort claims statute applicable to public entities or the state’s recreational use statute, also applicable to public enti- ties in a clear majority of the states. As discussed in this digest, many decisions that pub- lic entities make regarding bikeways (e.g., the type or placement of a bikeway and its design) or related as- pects (e.g., use or placement of signs, signals, guard- rails, or pavement markings) involve the exercise of discretion and are immune from liability under the dis- cretionary function exemption in tort claims acts. The agencies responding to the survey either did not report any tort claims for the alleged negligent design of bike- ways or stated that they had had few if any such claims. Maintenance activity, such as the failure to replace or repair a sign or signal or remove an obstruction from or repair the surface of a bikeway, gives rise to most tort claims against public entities. Assuming it had an actual or constructive notice prior to an accident, a pub- lic entity may be held liable for the failure to correct a dangerous or hazardous condition of a bikeway or for the failure to give adequate warning of the condition. Several agencies responding to the survey stressed that a proactive maintenance program for bikeways is im- portant to reduce the incidence of bikeway-related tort claims. As noted, a public entity also may have immunity for bikeway claims based on the state’s recreational use statute. Even if bicycling is not enumerated in a recrea- tional use statute, most recreational use statutes are sufficiently broad to apply to bicycles and bikeways. If a

44 recreational use statute applies to a bikeway accident, the public entity will have immunity unless it willfully or maliciously failed to warn of or guard against a known dangerous condition or, in some states, commit- ted “gross negligence” or engaged in “wanton and reck- less conduct” or “willful, wanton, or reckless conduct.” Assuming the state’s recreational use statute applies to a public entity sued for a bikeway accident, the cases hold almost without exception that a recreational use statute applies to a bikeway without it having to be primarily or exclusively for recreational use and regard- less of a bicyclist’s purpose or intent when using the bikeway at the time of an accident. Thus, it appears that in virtually all jurisdictions in which the recrea- tional use statute otherwise applies to a public entity and bikeways, the public entity will have immunity for bikeway accidents regardless of whether bicyclists are using the bikeway for commuting or for recreation. Based on the responses to the survey and on infor- mation derived from statutes and Web sites for agencies having bikeways, public entities have laws and policies regarding the designation of bikeways. Only one public entity reported a case, later dismissed, alleging that the public entity failed to make accommodations required by law for bikeways and bicycles in a highway project. Survey respondents indicated that they follow the AASHTO standards applicable to bikeways, as well as their own manuals on the design and maintenance of bikeways. However, as for tort claims, the survey re- spondents reported very few claims by bicyclists brought against them for accidents on bikeways, even for faulty maintenance. One respondent stated that tort liability concerns are a minor matter when deciding whether to designate a bikeway. In sum, as discussed in the digest, although there have been some tort claims against public entities for bikeway accidents, the defendant public entities pre- vailed in nearly all cases. Although the report analyzes public entities’ tort liability with respect to bikeways, the reader is cautioned that tort claims acts, recrea- tional use immunity statutes, and the courts’ interpre- tations of the law differ from state to state. The nature of the legal issues and principles discussed herein does not allow for definitive statements concerning public entities’ tort liability for bikeway claims. Accordingly, it is recommended that anyone relying on this digest should consult with counsel to confirm the rules and their interpretation in his or her state.

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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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