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From page 21... ... ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS A Warning Signs Although a public entity is not compelled to place warning signs, for example, at every curve along a highway or bikeway, generally it must provide them at "dangerous places" or unusual places to enable users exercising ordinary care and prudence to avoid injury to themselves and others.244 As one court has stated, a public entity is not "responsible for all injuries resulting from any risk posed by the roadway or its appurtenances, only those caused by an unreasonable risk of harm to others."245 Thus, under a state's tort claims act, a public entity may have immunity as long as the signal, sign, marking, or device was not necessary to warn of a dangerous condition that would not have been reasonably apparent to and would not have been anticipated by a person exercising due care.246 Of course, before the failure to post a warning will result in liability, it must be shown that the absence of a warning was the proximate cause of the accident.247 In some jurisdictions, however, the courts have held that whether a public entity is protected from liability by the discretionary function exemption decision must be decided on a case-by-case basis:248 244 Hensley v. Read the entire page →
From page 22... ... Although the bicycle accident occurred on a public road in Johnson v. Alaska,250 the plaintiff was severely injured when she approached a railroad crossing and the front wheel of her bicycle "caught" in the tracks, "pitching her over the front of her bicycle."251 Warning signs were in place at the time of the accident,252 but the plaintiff alleged that the city was "negligent in the design, maintenance and ‘signing' of the railroad crossing which caused her accident."253 An issue on appeal was whether the State had discretionary function immunity under the Alaska Tort Claims Act.254 In remanding the case, the Supreme Court of Alaska reiterated that it followed the "planning-operational level test to determine whether a particular governmental function was within the ambit of the discretionary function exemption."255 The court held that [t] Read the entire page →
From page 23... ... . a public entity decides to provide traffic control devices, there is a duty to maintain them in good working order.271 Nevertheless, at least one case was located in which the court held that a municipality is not liable even for the failure to maintain a traffic light.272 If there is no showing of a malfunction prior to the accident, a public entity may not be held liable because of the absence of any showing of actual or constructive notice.273 After receipt of notice of a malfunction, a public entity has a reasonable time to take corrective action.274 C Read the entire page →
From page 24... ... f the municipality proceeds in direct contravention, or ignorance, of all legitimate interpretations of the law, its plan of action is inherently unreasonable."290 In general, although there is some judicial authority to the contrary, after a public entity provides a warning sign or a traffic control device, the public entity has a duty to maintain it in good working order and its failure to do so is not protected by the discretionary function exemption.291 As one appellate court held under the circumstances of that case, "[t] he posted advisory speed signs are not binding and were customarily ignored, which fact was known to the State.… [T] Read the entire page →
From page 25... ... is not limited to ‘access' trails, but extends to include a trail whose use itself is the object of the recreational activity."305 F Guardrails and Barriers The discretionary-function exemption has been asserted successfully as a defense when a public entity was sued because of a decision not to install guardrails or barriers, because a decision whether to erect a guardrail or a barrier is a planning-level decision.306 Thus, it has been held that the failure to erect a guardrail did not constitute a dangerous condition of commonwealth realty;307 that the failure to erect a guardrail was not a "dangerous condition of the streets" for purposes of the "streets exception" to governmental immunity under tort claims act;308 and that there was no liability for failing to provide a median barrier, particularly when there was no showing of changed conditions between the time of the reconstruction of the roadway and the accident.309 Similarly, in Helton v. Read the entire page →
From page 26... ... Department of Transportation,322while riding her bicycle on a sidewalk along US-1, the plaintiff had to swerve to avoid a child and a dog.323 In doing so, her foot caught on three "eyebolts" that "extended approximately two inches into the path through the seawall…alongside the walkway."324 Although the trial judge granted a summary judgment to all three governmental defendants, the appellate court held that a jury question was presented regarding the State's liability.325 The court held that when a governmental agency as a landowner is responsible for an area, it has a duty "to maintain its streets and sidewalks free from an obstruction of which it knew or should have known, even though that obstruction may have been initially created not include illuminating obstacles beyond the improved portion of the roadway) Read the entire page →
From page 27... ... of the Tort Immunity Act."340 In Lipper v. City of Chicago,341 the plaintiff argued that "a bicyclist is...an intended user of this particular sidewalk because one must use the sidewalk to reach the bicycle path on the other side of Lake Shore Drive."342 The court held that an adult bicyclist was neither an intended nor a permitted user of a sidewalk on which he struck a raised portion of the sidewalk surrounding a manhole cover.343 Thus, there is precedence to the effect that a public entity may not be liable to an injured cyclist for alleged negligence if the bicyclist was not an intended or permitted user of a sidewalk or roadway at the time of the accident. Read the entire page →

From page 21...

... ALLEGED NEGLIGENCE OF PUBLIC ENTITIES THAT MAY OR MAY NOT RESULT IN LIABILITY FOR BIKEWAY ACCIDENTS A Warning Signs Although a public entity is not compelled to place warning signs, for example, at every curve along a highway or bikeway, generally it must provide them at "dangerous places" or unusual places to enable users exercising ordinary care and prudence to avoid injury to themselves and others.244 As one court has stated, a public entity is not "responsible for all injuries resulting from any risk posed by the roadway or its appurtenances, only those caused by an unreasonable risk of harm to others."245 Thus, under a state's tort claims act, a public entity may have immunity as long as the signal, sign, marking, or device was not necessary to warn of a dangerous condition that would not have been reasonably apparent to and would not have been anticipated by a person exercising due care.246 Of course, before the failure to post a warning will result in liability, it must be shown that the absence of a warning was the proximate cause of the accident.247 In some jurisdictions, however, the courts have held that whether a public entity is protected from liability by the discretionary function exemption decision must be decided on a case-by-case basis:248 244 Hensley v.

Read the entire page →

From page 22...

... Although the bicycle accident occurred on a public road in Johnson v. Alaska,250 the plaintiff was severely injured when she approached a railroad crossing and the front wheel of her bicycle "caught" in the tracks, "pitching her over the front of her bicycle."251 Warning signs were in place at the time of the accident,252 but the plaintiff alleged that the city was "negligent in the design, maintenance and ‘signing' of the railroad crossing which caused her accident."253 An issue on appeal was whether the State had discretionary function immunity under the Alaska Tort Claims Act.254 In remanding the case, the Supreme Court of Alaska reiterated that it followed the "planning-operational level test to determine whether a particular governmental function was within the ambit of the discretionary function exemption."255 The court held that [t]

Read the entire page →

From page 23...

... . a public entity decides to provide traffic control devices, there is a duty to maintain them in good working order.271 Nevertheless, at least one case was located in which the court held that a municipality is not liable even for the failure to maintain a traffic light.272 If there is no showing of a malfunction prior to the accident, a public entity may not be held liable because of the absence of any showing of actual or constructive notice.273 After receipt of notice of a malfunction, a public entity has a reasonable time to take corrective action.274 C

Read the entire page →

From page 24...

... f the municipality proceeds in direct contravention, or ignorance, of all legitimate interpretations of the law, its plan of action is inherently unreasonable."290 In general, although there is some judicial authority to the contrary, after a public entity provides a warning sign or a traffic control device, the public entity has a duty to maintain it in good working order and its failure to do so is not protected by the discretionary function exemption.291 As one appellate court held under the circumstances of that case, "[t] he posted advisory speed signs are not binding and were customarily ignored, which fact was known to the State.… [T]

Read the entire page →

From page 25...

... is not limited to ‘access' trails, but extends to include a trail whose use itself is the object of the recreational activity."305 F Guardrails and Barriers The discretionary-function exemption has been asserted successfully as a defense when a public entity was sued because of a decision not to install guardrails or barriers, because a decision whether to erect a guardrail or a barrier is a planning-level decision.306 Thus, it has been held that the failure to erect a guardrail did not constitute a dangerous condition of commonwealth realty;307 that the failure to erect a guardrail was not a "dangerous condition of the streets" for purposes of the "streets exception" to governmental immunity under tort claims act;308 and that there was no liability for failing to provide a median barrier, particularly when there was no showing of changed conditions between the time of the reconstruction of the roadway and the accident.309 Similarly, in Helton v.

Read the entire page →

From page 26...

... Department of Transportation,322while riding her bicycle on a sidewalk along US-1, the plaintiff had to swerve to avoid a child and a dog.323 In doing so, her foot caught on three "eyebolts" that "extended approximately two inches into the path through the seawall…alongside the walkway."324 Although the trial judge granted a summary judgment to all three governmental defendants, the appellate court held that a jury question was presented regarding the State's liability.325 The court held that when a governmental agency as a landowner is responsible for an area, it has a duty "to maintain its streets and sidewalks free from an obstruction of which it knew or should have known, even though that obstruction may have been initially created not include illuminating obstacles beyond the improved portion of the roadway)

Read the entire page →

From page 27...

... of the Tort Immunity Act."340 In Lipper v. City of Chicago,341 the plaintiff argued that "a bicyclist is...an intended user of this particular sidewalk because one must use the sidewalk to reach the bicycle path on the other side of Lake Shore Drive."342 The court held that an adult bicyclist was neither an intended nor a permitted user of a sidewalk on which he struck a raised portion of the sidewalk surrounding a manhole cover.343 Thus, there is precedence to the effect that a public entity may not be liable to an injured cyclist for alleged negligence if the bicyclist was not an intended or permitted user of a sidewalk or roadway at the time of the accident.

Read the entire page →

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