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9 VI and VII, respectively, herein discuss bikeway claims trol devices, including traffic signs."82 The court held under tort claims acts and recreational use statutes in that the highway exception did not give rise to duties more detail. even as to "integral parts of the highway" that are "out- side the actual roadbed, paved or unpaved, designed for SECTION IV. TORT CLAIMS ACTS AND TORT vehicular travel."83 The court held that "[t]raffic device LIABILITY OF PUBLIC ENTITIES claims, such as inadequacy of traffic signs, simply do not involve a dangerous or defective condition in the improved portion of the highway designed for vehicular A. State Tort Claims Acts travel."84 Historically, public entities were not subject to liabil- The court acknowledged, however, that there are ity in tort because of the doctrine of sovereign immu- other Michigan statutes that impose a duty "separate nity. Municipal corporations usually were liable only for from the highway exception" for "the installation, main- negligence in the performance of their proprietary func- tenance, repair, or improvement of traffic signs."85 Nev- tions--activities for which a fee was charged--but not ertheless, the statutes provide that the state and local for their governmental functions, such as providing and authorities are to perform these duties as they "deem 86 maintaining streets and highways. Because of sovereign necessary." For the court, "[t]his is the language of immunity, public entities had complete freedom from discretion, not the imposition of a duty, the breach of suit or liability. However, by the 1960s and 1970s, most which subjects the agencies to tort liability--as op- legislatures had enacted some form of tort claims act, posed, perhaps, to political liability."87 sometimes in response to judicial abrogation of sover- Besides showing that statutes waiving the immunity eign immunity.77 The extent of a public entity's liability of public entities are strictly construed, the Nawrocki varies from state to state depending on the extent to case illustrates several other principles of tort liability which the state legislature has waived immunity in of public entities applicable to bikeways. Public entities tort, as well as on the courts' interpretation of the ap- are more likely to have immunity when making deci- 78 plicable legislation. A tort claims act may apply to the sions that involve discretion, such as when to install state and other public entities, such as counties and traffic control devices, and public entities may be more municipalities, or there may be separate legislation likely to incur liability for alleged negligence involving applicable to the liability of the state and of counties the bikeway surface,88 such as the failure to correct a 89 and municipalities. known dangerous condition in or on a bikeway. Because a state's tort claims act waives sovereign Also, as illustrated by the Nawrocki case, even if a immunity to some extent for negligence claims, such state legislature has consented to tort claims against legislation is in derogation of the common law and the state or other public entities, the state's consent to therefore is construed strictly. An example of strict in- suit does not mean necessarily that consent has been terpretation is Nawrocki v. Macomb County Road given to being held liable for the alleged wrong at issue. Commission,79 in which the Supreme Court of Michigan For instance, a statute may waive immunity for a dan- held that "prior decisions of this Court...improperly gerous condition caused by a pothole but not for one broadened the scope of the highway exception" to gov- caused by the absence of a guardrail.90 A public entity ernmental immunity and that the court "was duty may have statutory immunity from liability for the fail- bound to overrule past decisions that depart from a ure to replace a missing sign if the tort claims act pro- narrow construction and application of the highway vides that the public entity is not liable "for an injury exception."80 In reinterpreting the highway exception to caused by the failure to provide ordinary traffic signals, 91 immunity in the Michigan statute, the court ruled that signs, markings or other similar devices." a pedestrian stated a claim when alleging "that she was injured by a dangerous or defective condition of the im- 82 463 Mich. at 173, 615 N.W.2d at 717. proved portion of the highway designed for vehicular 83 463 Mich. at 176, 615 N.W.2d at 719. 81 travel." However, the highway exception did not mean 84 463 Mich. at 183, 184, 615 N.W.2d at 723. that "the state or a county road commission [had] a 85 463 Mich. at 181, 615 N.W.2d at 721. duty to install, maintain, repair, or improve traffic con- 86 Id. (emphasis in original). 87 463 Mich. at 18182, 615 N.W.2d at 722 (footnote omit- ted). 77 RICHARD JONES, RISK MANAGEMENT FOR 88 463 Mich. at 184, 615 N.W.2d at 723. TRANSPORTATION PROGRAMS EMPLOYING WRITTEN GUIDELINES 89 Id. (emphasis supplied). AS DESIGN AND PERFORMANCE STANDARDS (NCHRP Legal Re- 90 search Digest No. 38, 1997). See, e.g., 42 PA. CONS. STAT. § 8522(b)(5), setting forth 78 conditions of explicit waiver of sovereign immunity regarding Id. The digest concludes that the largest number of states potholes as a dangerous condition of the highway and 42 PA. fall into the category of having abrogated immunity in a sub- CONS. STAT. § 8542(b)(4) for trees, traffic controls, and street stantial or general way. 79 lighting. 463 Mich. 143, 615 N.W.2d 702 (Mich. 2000). 91 80 Smith v. State, Dep't of Transp., 247 N.J. Super. 62, 588 463 Mich. at 151, 615 N.W.2d at 707. A.2d 854 (1991), cert. denied, 130 N.J. 13, 611 A.2d 651 (1992), 81 463 Mich. at 172, 615 N.W.2d at 717. (citing N.J. STAT. ANN. 59:4-5). See also Kosoff-Boda v. County