National Academies Press: OpenBook

Liability Aspects of Bikeways (2010)

Chapter: SECTION II. TORT CLAIMS AGAINST A PUBLIC ENTITY FOR BIKEWAY ACCIDENTS

« Previous: SECTION 1. FEDERAL LAWS ENCOURAGING THE DESIGNATION AND USE OF BIKEWAYS
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Suggested Citation:"SECTION II. TORT CLAIMS AGAINST A PUBLIC ENTITY FOR BIKEWAY ACCIDENTS." 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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Suggested Citation:"SECTION II. TORT CLAIMS AGAINST A PUBLIC ENTITY FOR BIKEWAY ACCIDENTS." 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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Suggested Citation:"SECTION II. TORT CLAIMS AGAINST A PUBLIC ENTITY FOR BIKEWAY ACCIDENTS." 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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4 through several legislative initiatives.9 The 2005 Safe, Accountable, Flexible, and Efficient Transportation Equity Act—A Legacy for Users Act (SAFETEA-LU)10 advocates the designation of bikeways. Multimodal paths are encouraged and in some instances required. Bicycle transportation and pedestrian walkways are eligible for the National Highway System.11 Under Transportation Improvement Programs, each metro- politan area is to provide for the development, inte- grated management, and operation of transportation systems and facilities that are part of accessible pedes- trian walkways and bicycle transportation facilities that function as part of an intermodal transportation system.12 Each metropolitan planning organization is to provide citizens and other interested parties with a rea- sonable opportunity to comment on a transportation plan.13 The term “transportation enhancement activity” means any project or area to be served by select activi- ties, including facilities for pedestrians and bicycles.14 Abandoned railway corridors are preserved for future use while allowing interim use as pedestrian or bicycle trails.15 9 For a list of federal funding sources regarding the estab- lishment of bikeways, see, e.g., 23 U.S.C. §§ 217 (2009). The following sections of the 2005 Safe, Accountable, Flexible, Effi- cient Transportation Equity Act—A Legacy for Users (SAFETEA-LU) contain provisions relating to bicycles and bicycle safety: § 1404 (Safe Routes to School Program) and § 1411 (Roadway Safety). See Department of Transportation, Federal Highway Administration, Bicycle and Pedestrian Pro- visions in (SAFETEA-LU) Not Codified in Title 23, available at http://fhwa.dot.gov/environment/bikeped/legtealu.htm, last 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. 1168–1170, amending 23 U.S.C. § 206 (Recreational Trails); and § 1807, 119 Stat. 1460 (Nonmotor- ized Transportation Pilot Program) and § 1954, 119 Stat. 1515, amending 23 U.S.C. § 217 (Bicycle Transportation and Pedes- trian Walkway). See U.S. Department of Transportation, Fed- eral Highway Administration, Bicycle and Pedestrian Legisla- tion in Title 23 United States Code (U.S.C.), available at http://www.fhwa.dot.gov/environment/bikeped/sec217.htm, last accessed on Dec. 10, 2009. See also Department of Transporta- tion, Federal Highway Administration, Summary of Highway Safety Provisions in SAFETEA-LU, available at http://www.fhwa.dot.gov/safetealu/summary.htm, last accessed Dec. 10, 2009. 10 Pub. L. No. 109-59, 119 Stat. 1144 (codified as amended in scattered sections of Title 23 of the U.S.C.). See 23 U.S.C. §§ 139, 325, and 326 (all references to 23 U.S.C. are to the 2009 supplement to the 2002 edition, unless otherwise noted). 11 23 U.S.C. § 103(b)(6)(k). 12 Id. §§ 134(a)(2), (c). 13 Id. § 134(i)(5)(A) (for example, affected public agencies, representatives of public transportation employees, freight shippers, providers of freight transportation services, private providers of transportation, representatives of users of public transportation, representatives of users of pedestrian walk- ways and bicycle transportation facilities, and representatives of the disabled). 14 Id. § 101(a)(35)(A). 15 Id. § 101(a)(35)(H). The Safe Routes to School Program provides funding for planning, designing, and constructing infrastruc- ture-related projects that will improve substantially the ability of students to walk and bicycle to school, includ- ing sidewalk improvements, speed-reduction improve- ments, pedestrian and bicycle crossing improvements, on-street bicycle facilities, off-street bicycle and pedes- trian facilities, secure bicycle parking facilities, and traffic diversion improvements in the vicinity of schools.16 Infrastructure-related projects may be imple- mented for any public road or any bicycle or pedestrian pathway or trail in the vicinity of schools.17 Funding may be used to encourage walking and bicycling to school.18 With respect to the National Park Service, under the service-wide regulations for vehicles and traffic safety in national park and forest property, “[t]he use of a bi- cycle is prohibited except on park roads, in parking ar- eas and on routes designated for bicycle use.”19 If a trail is not in a developed area or special-use zone, a park is required to adopt a special regulation to designate a route for bicycle use.20 The 1968 National Trails System Act21 established a program to preserve railroad rights-of-way no longer being used for operational railroad lines to avoid aban- donment of the rights-of-way and preserve them for use as recreational trails.22 Thus, federal laws and programs encourage the des- ignation and use of bikeways. SECTION II. TORT CLAIMS AGAINST A PUBLIC ENTITY FOR BIKEWAY ACCIDENTS A. Introduction Although federal and state laws support the use of bikeways, tort claims against public entities may arise as a result of accidents involving bikeways and possibly subject public entities to liability. For a plaintiff to maintain a tort action against a public entity, the plaintiff must show that the public defendant owed a duty to him or her that the defendant negligently performed or failed to perform. The showing of both the existence of a duty and its breach are criti- cal, because “[w]ithout duty, there can be no breach of duty, and without breach of duty there can be no liabil- ity.”23 The plaintiff must establish that the public au- thority had an “obligation to conform to a particular standard of conduct toward another to which the law 16 Id. § 402(f)(1)(A). 17 Id. § 402(f)(1)(B). 18 Id. § 402(f)(2)(A). 19 36 C.F.R. § 4.30(a) (2009). 20 Id. § 4.30(b) (2009). 21 16 U.S.C. §§ 1241–1251. 22 Id. § 1247(d). 23 79 N.Y. Jur. 2d, Negligence § 16.

5 will give recognition and effect.”24 Thus, two important issues in a tort case against a public entity for an acci- dent on a bikeway is whether the public entity had any duty to the bicyclist and whether the public entity’s alleged negligence was the proximate cause of the bicy- clist’s accident and injuries. However, whether a public entity may be held liable in tort depends on the extent to which the legislature has waived the public entity’s sovereign immunity to tort claims either by judicial decision or by a tort claims act applicable to public entities. In most states and lo- calities, a tort claims act may permit a plaintiff to sue a public entity, subject to certain limitations and excep- tions, for negligence. In addition to public entities hav- ing immunity for their actions that are discretionary in nature, a state’s tort claims act may include other im- portant exceptions to the liability of public entities.25 Tort claims acts that are applicable to public entities generally include a discretionary function exemption that immunizes public entities for alleged negligence when exercising their discretion. Thus, Sections V and VI of the digest discuss how the courts have construed the discretionary function exemption with respect to tort claims alleging negligence by a public entity in the design, construction, operation, or maintenance of bikeways. In addition, depending on the circumstances, in many states a public entity may be shielded from liability for negligence in connection with bikeway acci- dents based on the state’s recreational use statute, ex- cept when a public defendant willfully and maliciously failed to warn of or guard against a known dangerous condition, or in some states when a public entity com- mitted gross negligence or engaged in wanton and reck- less conduct or willful, wanton, or reckless conduct.26 Guidance Most states and localities are subject to a tort claims act. Although a tort claims act may permit an action to be brought against a public entity for alleged negligence, tort claims acts typically include a provision that im- munizes public entities for claims arising out of the ex- ercise of their discretion, as well as include other de- fenses and limitations on the liability of public entities. In some instances, a state’s recreational use statute may shield a public entity from liability for bicycle accidents on bikeways and trails except when the public entity willfully and maliciously failed to warn or guard against a known dangerous condition, or under some statutes except when the public entity was grossly negli- gent or its conduct was willful, wanton, or reckless. B. Whether a Public Entity Has a Duty to a Bicyclist Assuming that a public entity does not have immu- nity under a tort claims act or a recreational use stat- 24 See also 65 N.Y. Jur. 2d, Highways, Streets, and Bridges § 364, et seq. 25 See discussion, infra, in § IV. 26 See discussion, infra, in § VII. ute, for a plaintiff to establish that a public entity is liable for negligence the plaintiff must show that what caused the injury was in the care or custody of the pub- lic defendant, that a dangerous condition of a bikeway existed, that the defendant had actual or constructive knowledge of a dangerous condition, and that there had been a reasonable period of time between the time of notice of the condition and the occurrence of the acci- dent within which the defendant could have corrected the condition or given adequate warning of it.27 Although a tort claims act or recreational use statute may shield a public entity from liability for a bikeway accident, in general a public entity has a duty of rea- sonable care to construct and maintain its public im- provements such as highways and bikeways in a rea- sonably safe condition28 or to provide adequate warning of any danger that is present to a motorist or bicyclist.29 For example, “[a]fter a path is constructed, a city owes a duty to use reasonable care to maintain it and to warn invitees of concealed perils.”30 However, it has been held that a city does not have a duty to enforce a speed limit on a bikeway.31 Similarly, it has been held that a public entity has no duty to a bicyclist injured while riding on a public street to maintain a hedge that in effect had served as a barrier between the street and an athletic field that had a tendency to distract motorists’ attention from bicyclists.32 On the other hand, a county was held not to have governmental immunity for a bicycle accident in a county park where the asphalt surface had deteriorated and contained potholes33 and there were no “signs, chains, or barriers to indicate that the pathway was not 27 Burgess v. Harley, 934 S.W.2d 58, 63 (Tenn. Ct. App. 1996), appeal denied (Oct. 28, 1996). 28 65 N.Y. Jur. 2d, Highways, Streets, and Bridges § 388, at 163–64. 29 Taylor-Rice v. State, 91 Haw. 60, 69, 70, 979 P.2d 1086, 1095–96 (l999); Goodermote v. State, 856 S.W.2d 715, 720 (Tenn. Ct. App. 1993) (“The State has a duty to exercise rea- sonable care under all the attendant circumstances in plan- ning, designing, constructing and maintaining the State sys- tem of highways.”); Hash v. State, 247 Mont. 497, 501, 807 P.2d 1363, 1365–66 (1991) (“The State’s duty to keep its high- ways in a reasonably safe condition extends to the paved por- tion of the roadway, to the shoulders and the adjacent parts thereof, including guardrails….”). 30 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 park, who claimed that the city was negligent for failing to enforce its posted bicycle speed limit and for assigning only one park official to enforce the limit), review denied, 591 So. 2d 181 (Fla. 1991). 31 581 So. 2d at 1348. 32 Lompoc Unified Sch. Dist. v. Superior Court, 20 Cal. App. 4th 1688, 1691, 1694, 26 Cal. Rptr. 2d 122, 123, 125 (Cal. App. 2d Dist. 1993). 33 Vestal v. County of Suffolk, 7 A.D. 3d 613, 614, 776 N.Y.S.2d 491 (N.Y. App. 2d Dep’t 2004).

6 suitable for bicycling.”34 In affirming a trial court’s de- nial of the county’s motion for summary judgment, the court stated that “‘[a] municipality [that] extends to its citizens an invitation to enter and use recreational ar- eas owes to those accepting that invitation a duty of reasonable and ordinary care against foreseeable dan- gers.’”35 Although the law may vary from state to state re- garding when there is a duty to a bicyclist, a public en- tity may have a duty to bicyclists to maintain a path in good condition such as when it opens a park for their use. However, certain governmental functions, particu- larly those involving the exercise of discretion, may not impose a duty on the public entity to the bicyclist. As seen, a public defendant may have no duty to a bicyclist to enforce a speed limit but may have a duty to keep a bikeway in good repair. Guidance A public entity has a duty of reasonable care to con- struct and maintain its public improvements in a rea- sonably safe condition and to provide adequate warning to a motorist or bicyclist of a dangerous condition of which the public entity has notice or should have had notice. In general, a public entity has a duty to maintain the surface of a bikeway in a safe condition and free of defects or obstructions. Although not discussed in the digest, other principles of tort liability may apply in a given case such as contributory or comparative negli- gence because of a bicyclist’s own negligent conduct or inattention. C. Whether a Public Entity’s Alleged Negligence Was the Proximate Cause of the Plaintiff’s Claim A bicyclist may allege that an accident was caused by the condition of the pavement, by inadequate warn- ing signs or signals, by shoulder conditions, or by a hazardous bridge. Regardless of the alleged cause of an accident, a plaintiff must prove causation in fact and proximate cause.36 First, the question of cause in fact may be tested by asking whether the injury would have occurred but for the defendant’s negligence.37 One question for the court is whether the proof is sufficient. If an accident oc- curred on pavement that is alleged to have been defec- tive, it must be shown that the defect was in fact the cause of the accident and the plaintiff’s injuries.38 Cau- sation in fact is not the same as the plaintiff’s burden to 34 Id. at 614, 776 N.Y.S.2d at 491 (noting that although the county had “abandoned” the pathway, bicycle riding was per- mitted). 35 Id. (holding that the county was not entitled to govern- mental immunity because its operation of a public park is not a governmental function) (citations omitted). 36 Estate of Day by Strosin v. Willis, 897 P.2d 78, 81 (Alaska 1995). 37 2 HARPER & JAMES, THE LAW OF TORTS 2d § 20.2, at 91, hereinafter cited as “HARPER & JAMES.” 38 Id. at 85–86; 4 SCHWEITZER & RASCH, CYCLOPEDIA OF TRIAL PRACTICE § 827, at 66 (2d ed.). establish that the alleged negligence was the proximate or legal cause of the accident. Thus, the second question is whether the defendant’s negligence was the proximate cause of the plaintiff’s injuries. Usually the issue of proximate cause is a ques- tion of fact for the jury.39 No liability will be imposed upon a public entity unless it is alleged and proved that its negligence was the proximate cause of the accident.40 “’Proximate cause’ is that cause, act or omission which, in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the result would not have occurred, the injury being the natural and probable consequence of the wrongful act.”41 Although a jury is not bound to accept opinion testi- mony as conclusive, expert testimony may be essential in establishing causation.42 When reasonable minds could reach only one conclusion, the existence of proxi- mate cause is a question of law decided by the trial judge. There may be more than one proximate cause of an accident.43 The evidence must show that the plaintiff’s injury was a natural and probable consequence of con- ditions for which the public entity was responsible.44 A public entity’s breach of its standard of care or its viola- tion of a safety standard has been held to have been the proximate cause of a vehicle accident.45 In other cases, a bicyclist’s inattention or other negligence could be held 39 Boyd v. Trent, 262 A.D. 2d 260, 261, 690 N.Y.S.2d 732, 733 (N.Y. App. 2d Dep’t 1999) (stating that “it is well settled that the absence of a warning sign cannot be excluded as a proximate cause of an accident unless the driver’s awareness of the road condition would have led to the same course of con- duct as had the sign been present” and that the court could not rule as a matter of law that the defendant’s “actions would have been the same had a speed reduction sign been present at the approach to the curve”) (citations omitted); Grappe v. State, Dep’t of Transp. & Dev., 462 So. 2d 1337, 1340 (La. App. 3d Cir. 1985) (“Causation is a question of fact as to which the trial court’s determinations are entitled great weight and should not be disturbed absent manifest error.”), cert. denied, 466 So. 2d 1302 (La. 1985). 40 Ring v. State, 270 A.D. 2d 788, 789, 705 N.Y.S.2d 427, 428 (N.Y. App. 3d Dep’t 2000) (citations omitted). 41 65 C.J.S., Negligence § 188, at 519–20 (footnotes omitted). 42 Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 182, 952 S.W.2d 658, 662 (1997) (citations omitted). 43 Tex. Dep’t of Transp. v. Olsen, 980 S.W.2d 890, 893 (Tex. App. 1998). 44 Larkins v. Hayes, 267 A.D. 2d 524, 525, 699 N.Y.S.2d 213, 214 (N.Y. 3d Dep’t 1999) (citation omitted). Stahl v. Metro Dade County, 438 So. 2d 14 (1983) (child killed by motorist when child rode bicycle off poorly maintained bike path and onto street). 45 Nevins v. Ohio Dep’t of Highways, 132 Ohio App. 3d 6, 23, 25, 724 N.E.2d 433, 443, 445 (Ohio App. 10th Dist. 1998) (re- manding the case because the trial court failed to state sepa- rately the amounts of individual compensatory damages, fu- neral and burial expenses, and survival claims as required).

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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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