Liability Aspects of Bikeways (2010)

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3 LIABILITY ASPECTS OF BIKEWAYS By Larry W. Thomas Attorney-at-Law, Washington, DC INTRODUCTION Since the 1970s there has been increased use of bicy- cles for commuting and other travel, including recrea- tion, resulting in a greater response at all levels of gov- ernment to accommodate bicycles as a mode of transportation. Public entities’ concerns about tort li- ability for bicycle-related accidents may discourage pro- jects to accommodate more bicycles on streets or high- ways or to designate more bicycles lanes and paths.1 This digest, thus, is prompted by the need to provide information on legal risks to transportation and other public entities having bikeways or the authority to des- ignate them.2 However, the extent of a public entity’s risk of tort liability differs because of differing interpre- tations of the tort liability laws applicable to public en- tities from state to state. The digest addresses the liability of public entities for bicycle accidents on bikeways as well as on streets and highways. As the American Association of State Highway and Transportation Officials’ (AASHTO) Guide for the Development of Bicycle Facilities states, “[t]he majority of bicycling will take place on ordinary roads with no dedicated space for bicyclists;”3 conse- quently, “[a]ll highways, except those where cyclists are legally prohibited, should be designed and constructed under the assumption that they will be used by cy- clists.”4 According to AASHTO, and as used herein, the term bikeway means “any road, street, path or way which in some manner is specifically designated for bicycle travel, regardless of whether such facilities are desig- nated for the exclusive use of bicycles or are to be shared with other transportation modes.”5 A shared roadway is one that “is open to both bicycle and motor vehicle travel. This may be an existing roadway, street 1 See, e.g., Amy M. Cardwell, The Hawaii Recreational Use Statute: A Practical Guide to Landowner Liability, 22 HAWAII L. REV. 237, 248, 249–50, 252 (2000), hereinafter cited as “Cardwell” (stating that the principal reason for landowners not permitting their land to be used by recreational users is the owners’ concerns about potential liability for accidents). 2 See J.W. English, Liability Aspects of Bikeway Designation (1986) (a study commissioned by the Bicycle Federation of America, now the National Center for Bicycling and Walking). 3 AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS, AASHTO GUIDE FOR THE DEVELOPMENT OF BICYCLE FACILITIES 1 (1999), available at http://www.communitymobility.org/pdf/aashto.pdf, last ac- cessed on Oct. 27, 2009, hereinafter cited as “AASHTO Guide.” 4 Id. 5 Id. at 3. with wide curb lanes, or road with paved shoulders.”6 A shared use path is “[a] bikeway physically separated from motorized vehicular traffic by an open space or barrier and either within the highway right-of-way or within an independent right-of-way. Shared use paths may also be used by pedestrians, skaters, wheelchair users, joggers and other non-motorized users.”7 A signed shared roadway or signed bike route refers to “[a] shared roadway which has been designated by signing as a preferred route for bicycle use.”8 The states’ classi- fication of bikeways is discussed also in Section VIII.B, infra. The digest discusses 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 acci- dent whether on a public street or some type of bike- way; defenses to bikeway accidents under tort claims acts that are applicable to public entities; immunity for bicycle claims under some state recreational use stat- utes 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 based on responses to a survey of public entities, including public entities that designate bikeways. Guidance Although the digest discusses the principles of tort li- ability applicable to public entities having responsibility for bikeways, as defined for the purposes of the digest, the reader is cautioned that the courts’ interpretations of the law differ from state to state. Thus, the nature of the legal issues relating to tort liability do not allow for de- finitive statements regarding the liability or the absence thereof of public entities responsible for bikeways. It is recommended that anyone relying on the digest should consult with counsel to confirm the standards for liabil- ity in his or her state. SECTION 1. FEDERAL LAWS ENCOURAGING THE DESIGNATION AND USE OF BIKEWAYS Although some states and local government agencies may be dissuaded from designating bikeways because of potential tort liability, federal laws encourage the de- velopment, construction, and designation of new bike- way facilities by providing funding and guidance 6 Id. 7 Id. 8 Id.