Liability Aspects of Bikeways (2010)

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CONTENTS Introduction, 3 Section I. Federal Laws Encouraging the Designation and Use of Bikeways, 3 Section II. Tort Claims Against a Public Entity for Bikeway Accidents, 4 A. Introduction, 4 B. Whether a Public Entity Has a Duty to a Bicyclist, 5 C. Whether a Public Entity’s Alleged Negligence Was the Proximate Cause of the Plaintiff’s Claim, 6 Section III. Defenses to Bikeway Claims Under State Tort Claims Acts and Recreational Use Statutes, 7 A. Interplay Between a Tort Claims Act and a Recreational Use Statute in Bikeway-Accident Claims Against Public Entities, 7 B. Immunity From Bikeway Claims Under Some Recreational Use Statutes, 8 Section IV. Tort Claims Acts and Tort Liability of Public Entities, 9 A. State Tort Claims Acts, 9 B. No General Duty to Install or Provide Highway Signs, Signals, or Pavement Markings, 10 C. Whether a Public Entity Had Notice of a Dangerous Condition, 11 D. The Governmental/Proprietary Test Applicable to Municipal Corporations in Some States, 12 Section V. Immunity of Public Entities for the Exercise of Their Discretion, 13 A. The Meaning of the Discretionary Function Exemption, 13 B. The Meaning of the Discretionary Function Exemption in State Tort Claims Acts, 14 C. The Discretionary Function Exemption and Bikeway Claims Against Public Entities, 16 D. Immunity for Negligent Design Based on a Statutory Exemption for Discretionary Activity, 17 E. Application of the Discretionary Exemption to the Maintenance of Bikeways, 20 Section VI. Alleged Negligence of Public Entities That May or May Not Result in Liability for Bikeway Accidents, 21 A. Warning Signs, 21 B. Traffic Control Devices, 22 C. Stop Signs and Speed Limit Signs, 23 D. Pavement Markings, 24 E. Defects in the Pavement Surface, 25 F. Guardrails and Barriers, 25 G. Shoulders and Adjacent Areas, 26 H. Requirement That Bicyclists Be Intended or Permitted Users, 27 Section VII. Public Entities’ Immunity Under Recreational Use Statutes for Bikeways, 28 A. Overview of Recreational Use Statutes, 28 B. Whether Public Entities Are Owners Under Recreational Use Statutes, 31 C. Whether Bikeways Come Within the Meaning of Recreational Use Statutes, 33 D. Immunity When Recreational Use Is Restricted, 38 Section VIII. Local Law and Policy Regarding the Designation of Bikeways, 38 A. Localities’ Laws and Policies Regarding Bikeways, 38 B. Types of Bikeways, 39 C. Responsibility for Designating Bikeways, 40 D. Design and Maintenance Guidance for Bikeways, 41 E. Localities’ Reported Litigation Over Bikeway Designations, 42 F. Localities’ Reported Tort Liability and Bikeway Accidents, 43 G. Public Entities’ Recommendations for Localities Considering Bikeways, 43 Conclusion, 43 Appendix A—Survey Questions, 45 Appendix B—List of Agencies Responding to Survey Questions, 46 Appendix C—State Recreational Use Statutes, 48 Appendix D—Case/Issue Index, 50