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5 will give recognition and effect."24 Thus, two important ute, for a plaintiff to establish that a public entity is issues in a tort case against a public entity for an acci- liable for negligence the plaintiff must show that what dent on a bikeway is whether the public entity had any caused the injury was in the care or custody of the pub- duty to the bicyclist and whether the public entity's lic defendant, that a dangerous condition of a bikeway alleged negligence was the proximate cause of the bicy- existed, that the defendant had actual or constructive clist's accident and injuries. knowledge of a dangerous condition, and that there had However, whether a public entity may be held liable been a reasonable period of time between the time of in tort depends on the extent to which the legislature notice of the condition and the occurrence of the acci- has waived the public entity's sovereign immunity to dent within which the defendant could have corrected tort claims either by judicial decision or by a tort claims the condition or given adequate warning of it.27 act applicable to public entities. In most states and lo- Although a tort claims act or recreational use statute calities, a tort claims act may permit a plaintiff to sue a may shield a public entity from liability for a bikeway public entity, subject to certain limitations and excep- accident, in general a public entity has a duty of rea- tions, for negligence. In addition to public entities hav- sonable care to construct and maintain its public im- ing immunity for their actions that are discretionary in provements such as highways and bikeways in a rea- 28 nature, a state's tort claims act may include other im- sonably safe condition or to provide adequate warning portant exceptions to the liability of public entities.25 of any danger that is present to a motorist or bicyclist.29 Tort claims acts that are applicable to public entities For example, "[a]fter a path is constructed, a city owes a generally include a discretionary function exemption duty to use reasonable care to maintain it and to warn that immunizes public entities for alleged negligence invitees of concealed perils."30 However, it has been held when exercising their discretion. Thus, Sections V and that a city does not have a duty to enforce a speed limit VI of the digest discuss how the courts have construed on a bikeway.31 Similarly, it has been held that a public the discretionary function exemption with respect to entity has no duty to a bicyclist injured while riding on tort claims alleging negligence by a public entity in the a public street to maintain a hedge that in effect had design, construction, operation, or maintenance of served as a barrier between the street and an athletic bikeways. In addition, depending on the circumstances, field that had a tendency to distract motorists' attention in many states a public entity may be shielded from from bicyclists.32 liability for negligence in connection with bikeway acci- On the other hand, a county was held not to have dents based on the state's recreational use statute, ex- governmental immunity for a bicycle accident in a cept when a public defendant willfully and maliciously county park where the asphalt surface had deteriorated failed to warn of or guard against a known dangerous and contained potholes33 and there were no "signs, condition, or in some states when a public entity com- chains, or barriers to indicate that the pathway was not mitted gross negligence or engaged in wanton and reck- less conduct or willful, wanton, or reckless conduct.26 Guidance 27 Burgess v. Harley, 934 S.W.2d 58, 63 (Tenn. Ct. App. Most states and localities are subject to a tort claims 1996), appeal denied (Oct. 28, 1996). act. Although a tort claims act may permit an action to 28 65 N.Y. Jur. 2d, Highways, Streets, and Bridges 388, at be brought against a public entity for alleged negligence, 16364. tort claims acts typically include a provision that im- 29 Taylor-Rice v. State, 91 Haw. 60, 69, 70, 979 P.2d 1086, munizes public entities for claims arising out of the ex- 109596 (l999); Goodermote v. State, 856 S.W.2d 715, 720 ercise of their discretion, as well as include other de- (Tenn. Ct. App. 1993) ("The State has a duty to exercise rea- fenses and limitations on the liability of public entities. sonable care under all the attendant circumstances in plan- In some instances, a state's recreational use statute may ning, designing, constructing and maintaining the State sys- shield a public entity from liability for bicycle accidents tem of highways."); Hash v. State, 247 Mont. 497, 501, 807 on bikeways and trails except when the public entity P.2d 1363, 136566 (1991) ("The State's duty to keep its high- willfully and maliciously failed to warn or guard ways in a reasonably safe condition extends to the paved por- tion of the roadway, to the shoulders and the adjacent parts against a known dangerous condition, or under some thereof, including guardrails...."). statutes except when the public entity was grossly negli- 30 gent or its conduct was willful, wanton, or reckless. Dennis v. City of Tampa, 581 So. 2d 1345, 1348 (Fla. 2d DCA 1991) (involving a plaintiff, struck from behind by a speeding bicyclist while walking on a bike path in a city-owned B. Whether a Public Entity Has a Duty to a park, who claimed that the city was negligent for failing to Bicyclist enforce its posted bicycle speed limit and for assigning only one Assuming that a public entity does not have immu- park official to enforce the limit), review denied, 591 So. 2d 181 nity under a tort claims act or a recreational use stat- (Fla. 1991). 31 581 So. 2d at 1348. 32 Lompoc Unified Sch. Dist. v. Superior Court, 20 Cal. App. 24 See also 65 N.Y. Jur. 2d, Highways, Streets, and Bridges 4th 1688, 1691, 1694, 26 Cal. Rptr. 2d 122, 123, 125 (Cal. App. 364, et seq. 2d Dist. 1993). 25 See discussion, infra, in IV. 33 Vestal v. County of Suffolk, 7 A.D. 3d 613, 614, 776 26 See discussion, infra, in VII. N.Y.S.2d 491 (N.Y. App. 2d Dep't 2004).