Liability Aspects of Bikeways (2010) / Chapter Skim
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Pages 28-37
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From page 28... ...
PUBLIC ENTITIES' IMMUNITY UNDER RECREATIONAL USE STATUTES FOR BIKEWAYS A Overview of Recreational Use Statutes Although a public entity may have immunity for alleged negligence regarding a decision, action, or inaction resulting in a bicycle accident on a roadway or bikeway under the state's tort claims act, a public entity also may have immunity for accidents on bikeways and other areas under the state's recreational use statute.
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. owner's liability that otherwise exists for willful or malicious failure to warn of or guard against a known dangerous condition or use of the property.356 Thus, a majority of the recreational use statutes do stipulate that persons granting the public access to their property for recreational activities may be held liable for their "willful or malicious failure to guard or warn against a dangerous condition, use structure, or activity," or under some statutes for their "gross negligence," "willful or wanton conduct," or "willful, wanton or reckless conduct."357 One state's recreational use statute defines gross negligence as an act or omission: (1)
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public entity may be found to have engaged in willful and wanton conduct only if it has been informed of a dangerous condition, knew others had been injured because of the condition, or if it intentionally removed a safety device or feature from property used for recreational purposes."361 In Dinelli, the court ruled the trial court properly granted a summary judgment to the county on the plaintiffs' claim that the county had negligently designed and maintained a midblock bicycle trail crosswalk. The court concluded that "the County's ‘nonaction' did not rise to the level of willful and wanton conduct showing an utter indifference to the safety of others," nor did the "County's failure to conduct traffic studies or utilize traffic control devices…rise to the level of willful and wanton conduct."362 It has been held that a willful failure to guard or warn requires that "[a]
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Whether Public Entities Are Owners Under Recreational Use Statutes A threshold issue is whether a recreational use statute applies and therefore immunizes the conduct of public entities when sued for alleged negligence for accidents on bikeways. Although a few statutes exclude governmental owners,391 some of the statutes clearly provide that an owner includes any public entity, including any agency of the federal or state government or a political subdivision of the state.392 Land also may 388 Id.
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University of Kansas,400 the Kansas Supreme Court held that recreational use immunity protected the University of Kansas from a claim by a student who was injured while sledding on a part of university property.401 First, the court held that "[u] nder the plain and unambiguous wording of the statute, a governmental entity which permits public property to be used as a park, playground, or open area for recreational purposes is immune from damages arising from negligence."402 Second, in response to the plaintiff's argument that the recreational use statute only applied to municipalities, the court looked to the state's tort claims act that defined a governmental entity to mean the state or a municipality.403 Third, in response to the plaintiff's argument that the university's hill where sledding traditionally occurred was not a recreational area within the meaning of the recreational use statute, the court held that it was not necessary under the statute for the area to have been designated as a recreational area, only that it was open to recreational use.404 A local tort claims statute may include an exception from liability for governmental entities providing rec 395 Alabama, Arkansas, Colorado, Illinois, Indiana, Maryland, Massachusetts, Montana, New Hampshire, North Dakota, Oregon, Tennessee, Texas, Utah, and Washington.
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It should be noted, however, that "states with judicial rulings excluding governmental entities from recreational use statutes have seen legislative amendments specifically including the State and its political subdivisions."411 Elsewhere there are some states whose courts have held that public entities are not landowners within the meaning of the state's recreational use statute. For instance, a federal court in Vermont held that the state's recreational use statute does not protect municipalities that construct bike paths.412 The Supreme Court of 405 745 ILL.
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City of Sioux Falls,427 the plaintiffs were injured while rollerblading on a cityowned bike trail when they fell as a result of an uneven section of the trail.428 The city had immunity because under the recreational use statute, South Dakota Codified Laws, Section 20-9-13, landowners have immunity when allowing their land to be used for outdoor recreational purposes.429 However, there are some cases in which the courts have held that a public entity did not have immunity with regard to a bikeway. For example, in Walker v.
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The court held that the recreational use statute did not shield a public entity from liability for a rollerblading accident on a city bike path. The court stated that there was possible disparate treatment of users of the bike path depending on the purpose for which they used it, meaning that a public entity in effect may have a lower standard of care depending on whether a bikeway is being used by a recreational user rather than by a commuter.
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Atchison Heritage Conference Center, the Supreme Court of Kansas rejected a "primary purpose" test in determining whether the recreational use statute applied;457 "the correct test…is ‘whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.'"458 The court quoted from the Bubb459decision by the Illinois Supreme Court that similarly rejected a "primary purpose" analysis: "‘Nothing in the statute requires an examination of the property's primary purpose.'"460 Other cases have held that a state's recreational use statute applies to a bikeway or trail owned and designated as such by a public entity. The South Dakota Supreme Court held that the state's recreational use statute entitled the city to immunity when a person was injured while rollerblading on a bike trail in a city park.461 In California, in Armenio v.
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The Supreme Judicial Court of Massachusetts addressed the issue in Ali v. City of Boston.481 The plaintiff collided with a gate and sustained injuries while riding his bicycle thorough a city park.482 The plaintiff argued that "because he was injured while using the park for a nonrecreational purpose (that is, to ride home from the store)
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