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7 to be the proximate cause of an accident.46 Thus, both court held that the plaintiff's failure "to look ahead of motorists and bicyclists must be "vigilant in their ob- her vehicle" and observe traffic conditions was the servances and avoidances of defects and obstructions proximate cause of the accident.55 likely to be encountered."47 In sum, causation in fact and proximate cause are There are cases involving bicycle accidents in which important burdens that the plaintiff must meet before a the public entity's negligence was held not to have been public entity may be held liable for negligence. the proximate cause of the bicyclist's accident. In Pu- Guidance halski v. Brevard County, the bicyclists had found a If a public entity has failed to keep a bikeway in rea- bicycle path built by the county along a state road in sonably good repair, failed to remove a dangerous ob- the county to be "so poorly maintained" that they had to struction in or adjacent to the bikeway, or has violated a ride "on the edge of the highway when they were struck mandatory safety standard applicable to the bikeway, and injured by a vehicle that wandered out of the lane any one (or more) of which was the proximate cause of of traffic."48 It was held that the county's action or inac- an accident, it appears that a court is more likely to hold tion was not the proximate cause of the accident. A con- the public entity liable. However, in a particular case a curring opinion stated that "[w]hatever duty Brevard public entity's violation of a nonmandatory standard or County had to maintain the path once provided, the guideline could be admissible on the issue of the public breach of that duty was limited to injuries directly and entity's liability. proximately caused to bicyclists by defects in the path resulting from improper maintenance."49 On the other SECTION III. DEFENSES TO BIKEWAY CLAIMS 50 hand, in Stahl v. Metropolitan Dade County, in which UNDER STATE TORT CLAIMS ACTS AND a passing automobile struck a youthful bicyclist when RECREATIONAL USE STATUTES he left a bicycle path to avoid an obstruction, the court held that "a reasonable jury on these facts could find that negligent maintenance of the bicycle path would A. Interplay Between a Tort Claims Act and a likely force a young bicyclist such as Andrew Stahl off Recreational Use Statute in Bikeway-Accident the path to avoid a spill...onto the street when he might Claims Against Public Entities be hit by a car."51 In a claim against a public entity for alleged negli- In a New York case it was held that a public entity's gence for improper design, construction, or mainte- action was not the proximate cause of a motorcycle ac- nance of a bikeway, a public entity may have defenses cident even though the plaintiff's expert testified that to the claim under the state's tort claims act applicable the city should have painted the road in question as a to the public entity or, alternatively, under the state's four-lane rather than a two-lane road such that the recreational use statute.56 First, a state's tort claims act plaintiff would not have attempted to pass a tractor may provide a defense to a bikeway claim when the 52 trailer on the right side. In Shortridge v. Ohio De- state's recreational use statute does not immunize a partment of Public Safety,53 the court held that the de- public entity, for example, because in some states the fendant's action was not the proximate cause of an acci- recreational use statute applies only to private land- dent even though a sign had not been replaced.54 The owners or because bicycling is not a covered activity under the statute. Second, a recreational use statute 46 Barrish v. State, Dep't of Transp., 509 So. 2d 340 (Fla. 3d may immunize a public entity from a bikeway claim DCA 1987) (concurring op.) (holding that overgrown foliage that ordinarily would exist under the state's tort claims blocking a sidewalk that prompted the plaintiff to walk in the act. For example, if the recreational use statute applies street was not the proximate cause of the plaintiff's injuries both to public entities and to bikeways, the public entity but stating a different result if the plaintiff was a bicyclist, will be liable only when it willfully or maliciously failed citing to Stahl, supra, n. 44), reh'g denied (July 29, 1987). to give warning of or guard against a known dangerous 47 Finkelstein v. Brooks Paving Co., 107 So. 2d 205, 207 condition or in some states when it commits gross neg- (Fla. 3d DCA 1958) (citations omitted). ligence or has been guilty of willful, wanton, or reckless 48 Puhalski v. Brevard County, 428 So. 2d 375, 376 (Fla. 5th conduct. DCA 1983) (per curiam). See discussion of the Puhalski case in In Baggio v. Chicago Park District,57 the court ad- Emily Hammond, Note: Government Liability When Cyclists dressed "the relationship between the Tort Immunity Hit the Road: Same Roads, Same Rights, Different Rules, 35 58 Act and the Recreational Use Statute." The court held GA. L. REV. 1051, 106566 (2001). 49 that the two acts could be reconciled and that the "Tort Puhalski, 428 So. 2d at 376 (concurring op.). Immunity Act provides protection for local public enti- 50 438 So. 2d 14, 16, 22 (Fla. 3d DCA 1983) (reversing a ties that is additional to those protections contained in summary judgment for the county). 51 438 So. 2d at 22. 55 52 Elmer v. Kratzer, 249 A.D. 2d 899, 901, 672 N.Y.S.2d 584, 90 Ohio Misc. 2d at 54, 696 N.E.2d at 682. 56 585 (N.Y. App. 4th Dep't 1998), appeal dismissed, 92 N.Y.2d Cardwell, supra note 1, at 244. 921, 703 N.E.2d 274, 692 N.Y.S.2d 462 (1998). 57 289 Ill. App. 3d 768, 682 N.E.2d 429 (Ill. App. 1st Dist. 53 90 Ohio Misc. 2d 50, 696 N.E.2d 679 (Ohio Ct. Cl. 1997). 1997). 54 58 Id. at 53, 696 N.E.2d at 681. Id. at 771, 682 N.E.2d at 431.