Liability Aspects of Bikeways (2010)

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7 to be the proximate cause of an accident.46 Thus, both motorists and bicyclists must be “vigilant in their ob- servances and avoidances of defects and obstructions likely to be encountered.”47 There are cases involving bicycle accidents in which the public entity’s negligence was held not to have been the proximate cause of the bicyclist’s accident. In Pu- halski v. Brevard County, the bicyclists had found a bicycle path built by the county along a state road in the county to be “so poorly maintained” that they had to ride “on the edge of the highway when they were struck and injured by a vehicle that wandered out of the lane of traffic.”48 It was held that the county’s action or inac- tion was not the proximate cause of the accident. A con- curring opinion stated that “[w]hatever duty Brevard County had to maintain the path once provided, the breach of that duty was limited to injuries directly and proximately caused to bicyclists by defects in the path resulting from improper maintenance.”49 On the other hand, in Stahl v. Metropolitan Dade County,50 in which a passing automobile struck a youthful bicyclist when 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 likely force a young bicyclist such as Andrew Stahl off the path to avoid a spill…onto the street when he might be hit by a car.”51 In a New York case it was held that a public entity’s action was not the proximate cause of a motorcycle ac- cident even though the plaintiff’s expert testified that the city should have painted the road in question as a four-lane rather than a two-lane road such that the plaintiff would not have attempted to pass a tractor trailer on the right side.52 In Shortridge v. Ohio De- partment of Public Safety,53 the court held that the de- fendant’s action was not the proximate cause of an acci- dent even though a sign had not been replaced.54 The 46 Barrish v. State, Dep’t of Transp., 509 So. 2d 340 (Fla. 3d DCA 1987) (concurring op.) (holding that overgrown foliage blocking a sidewalk that prompted the plaintiff to walk in the street was not the proximate cause of the plaintiff’s injuries but stating a different result if the plaintiff was a bicyclist, citing to Stahl, supra, n. 44), reh’g denied (July 29, 1987). 47 Finkelstein v. Brooks Paving Co., 107 So. 2d 205, 207 (Fla. 3d DCA 1958) (citations omitted). 48 Puhalski v. Brevard County, 428 So. 2d 375, 376 (Fla. 5th DCA 1983) (per curiam). See discussion of the Puhalski case in Emily Hammond, Note: Government Liability When Cyclists Hit the Road: Same Roads, Same Rights, Different Rules, 35 GA. L. REV. 1051, 1065–66 (2001). 49 Puhalski, 428 So. 2d at 376 (concurring op.). 50 438 So. 2d 14, 16, 22 (Fla. 3d DCA 1983) (reversing a summary judgment for the county). 51 438 So. 2d at 22. 52 Elmer v. Kratzer, 249 A.D. 2d 899, 901, 672 N.Y.S.2d 584, 585 (N.Y. App. 4th Dep’t 1998), appeal dismissed, 92 N.Y.2d 921, 703 N.E.2d 274, 692 N.Y.S.2d 462 (1998). 53 90 Ohio Misc. 2d 50, 696 N.E.2d 679 (Ohio Ct. Cl. 1997). 54 Id. at 53, 696 N.E.2d at 681. court held that the plaintiff’s failure “to look ahead of her vehicle” and observe traffic conditions was the proximate cause of the accident.55 In sum, causation in fact and proximate cause are important burdens that the plaintiff must meet before a public entity may be held liable for negligence. Guidance If a public entity has failed to keep a bikeway in rea- sonably good repair, failed to remove a dangerous ob- struction in or adjacent to the bikeway, or has violated a mandatory safety standard applicable to the bikeway, any one (or more) of which was the proximate cause of an accident, it appears that a court is more likely to hold the public entity liable. However, in a particular case a public entity’s violation of a nonmandatory standard or guideline could be admissible on the issue of the public entity’s liability. SECTION III. DEFENSES TO BIKEWAY CLAIMS UNDER STATE TORT CLAIMS ACTS AND RECREATIONAL USE STATUTES A. Interplay Between a Tort Claims Act and a Recreational Use Statute in Bikeway-Accident Claims Against Public Entities In a claim against a public entity for alleged negli- gence for improper design, construction, or mainte- nance of a bikeway, a public entity may have defenses to the claim under the state’s tort claims act applicable to the public entity or, alternatively, under the state’s recreational use statute.56 First, a state’s tort claims act may provide a defense to a bikeway claim when the state’s recreational use statute does not immunize a public entity, for example, because in some states the recreational use statute applies only to private land- owners or because bicycling is not a covered activity under the statute. Second, a recreational use statute may immunize a public entity from a bikeway claim that ordinarily would exist under the state’s tort claims act. For example, if the recreational use statute applies both to public entities and to bikeways, the public entity will be liable only when it willfully or maliciously failed to give warning of or guard against a known dangerous condition or in some states when it commits gross neg- ligence or has been guilty of willful, wanton, or reckless conduct. In Baggio v. Chicago Park District,57 the court ad- dressed “the relationship between the Tort Immunity Act and the Recreational Use Statute.”58 The court held that the two acts could be reconciled and that the “Tort Immunity Act provides protection for local public enti- ties that is additional to those protections contained in 55 90 Ohio Misc. 2d at 54, 696 N.E.2d at 682. 56 Cardwell, supra note 1, at 244. 57 289 Ill. App. 3d 768, 682 N.E.2d 429 (Ill. App. 1st Dist. 1997). 58 Id. at 771, 682 N.E.2d at 431.

8 the Recreational Use Act.”59 If the recreational use stat- ute does not apply, for example, because a public entity charged a fee for entry onto or use of its property, there may be immunity nevertheless under the applicable tort claims act.60 In sum, it is possible that a public entity would not have a defense under one statute but would have a de- fense under the other. One article even states that a combination of a tort claims act and a recreational use statute may preclude virtually any actions against a public entity “even in cases of willful misconduct” by the public entity.61 B. Immunity From Bikeway Claims Under Some Recreational Use Statutes When there is a claim for which the public entity could be held liable under a state tort claims act, the state’s recreational use statute, nevertheless, may be applicable in over 30 states in which the statutes apply to public entities and immunize them for their action. In Parent v. State,62 the young bicyclist was injured in a state park in Tennessee “after he was thrown from his bicycle when a steep portion of the paved bicycle trail culminated in a sharp turn.”63 Relying on the State’s tort liability legislation, the plaintiffs alleged “that Tenn. Code Ann. § 9-8-307(a)(1)(C) and (a)(1(I) remove immunity for a dangerous condition that has been neg- ligently created or maintained on state-controlled prop- erty.”64 The State argued, however, that it was immune under Tennessee’s recreational use statute.65 The Su- preme Court of Tennessee agreed with the State and held that the recreational use statute was also “an af- firmative defense to other viable causes of action out- side the recreational use statute.”66 Although the recreational use statute did not enu- merate biking as a recreational activity, the court stated that bicycling is a recreational activity “compa- rable to the activities enumerated in § 102” of the rec- reational use statute.67 The court held that the recrea- tional use statute “provide[d] the State with an immunity-defense when injury occurs during bicycling 59 Id. 60 289 Ill. App. 3d at 771, 682 N.E.2d at 432. 61 Interface Between the Recreation and Land Use Act and the Sovereign Immunity Act—Blanket Immunity for the Commonwealth in State Park Actions?, 70 PA. BAR ASS’N QUARTERLY 112, 114–15 (1999). The article notes that the combination of a tort claims act and a recreational use statute may produce a “strange result” not intended by the legislature, because there could be cases in which the state, for example, “may be aware of a patently dangerous condition on its land, or even deliberately create the condition and still be immune under the Sovereign Immunities Act.” Id. at 112. 62 991 S.W.2d 240 (Tenn. 1999). 63 Id. at 241. 64 Id. 65 Id. at 241–42 (citing TENN. CODE ANN. § 70-7-101, et seq.). 66 Id. at 242. 67 Id. at 243. on a paved trail or state-owned land.”68 Therefore, the State had the recreational use statute as a defense to causes of action that otherwise would have been per- mitted against the State under its tort claims act known as the Tennessee Claims Commission Act.69 Nevertheless, the reversal of the dismissal of the plain- tiff’s case was affirmed; because bicycling on a paved trail in the state park was a recreational use, the plain- tiff was entitled to a factual development of the case before determining whether any of the exceptions to state immunity under the recreational use statute ap- plied. Another example of a defense under a recreational use statute when there was no defense under a tort claims act is Stephen F. Austin State University v. Flynn.70 The Supreme Court of Texas agreed with an appellate court that Stephen F. Austin State University (SFA) did not have immunity under the tort claims act but disagreed with and reversed the appellate court’s ruling that SFA did not have immunity under the rec- reational use statute. SFA had granted an easement to the city of Nacogdoches for a trail that crossed SFA’s campus.71 The plaintiff was injured while riding on the trail when she was knocked off her bicycle by one of the university’s lawn sprinklers.72 First, the court held, as did the appellate court, that SFA’s decisions regarding “where the water was to spray were operational- or maintenance-level decisions” rather than decisions involving the formulation of pol- icy; thus, SFA was not protected from liability by the discretionary function exemption in the tort claims act.73 Second, however, the court held that SFA had immunity under the recreational use statute. SFA was still the owner of the land and was entitled to immunity even though it had granted an easement to the city.74 The court held “that a landowner who dedicates a pub- lic easement for recreational purpose is entitled to the protection of the recreational use statute.”75 The court rejected the plaintiff’s claim that SFA could not claim immunity because its actions amounted to “gross negli- gence, malicious intent, or bad faith” under the recrea- tional use statute.76 Guidance In a tort claim case against a public entity for an ac- cident involving a bikeway it is important to consider both the applicable tort claims act and the state’s recrea- tional use statute that may be applicable to bikeways. Depending on the circumstances, a public entity could have immunity under one or both statutes. Sections IV– 68 Id. 69 Id. (citing TENN. CODE ANN. §§ 9-8-101, 9-8-301). 70 228 S.W.3d 653 (Tex. 2007). 71 Id. at 655. 72 Id. 73 Id. at 658. 74 Id. 75 Id. at 659 (citations omitted). 76 Id.