When Are Governments Liable?


By Charles Pekow

If a cyclist gets hurt riding on a public path, is the government legally responsible for the injury? Not often, but the fear of it may be unreasonably scaring some governments from building bike facilities, says a new legal report. But they probably needn’t worry much if they’re keeping facilities in shape, it adds.

“Public entities concerns about tort liability for bicycle-related accidents may discourage projects to accommodate more bicyclists on streets or highways or to designate more bicycle lanes and paths,” says Liability Aspects of Bikeways.

But though public entities have been sued many times by bicyclists injured on public paths, the agencies have very rarely lost cases. That’s because many sovereign and recreational immunity clauses in laws protect governments from all but the most negligent actions. Still, the liability of state and local officials varies by state.

The National Cooperative Highway Research Program commissioned the legal report. In addition to examining legal precedents, the study surveyed a handful of state and local transportation departments, but none in Utah or Idaho.

Courts in different states have interpreted the extent of government liability differently. Unless courts or state legislatures have deemed otherwise, an injured bicyclist can sue a public entity for negligence. But in most states plaintiffs will have to prove “the public entity willfully and maliciously failed to warn or guard against a known dangerous condition” or was “willful, wanton, or reckless” in its neglect. The burden of proof tends to be higher on recreational bikeways than on commuter routes, as discussed below.

But governments can be considered liable for accidents occurring on any roadway where bicycles are allowed – not just specific bikeways.

The plaintiff, of course, bears the burden of proof that the harm was caused by a dangerous condition on the bikeway and that the government knew of the danger for a “reasonable period” and could have corrected the problem or “given adequate warning.”

Rulings have defined the extent of risks. A 1993 Tennessee appellate court ruling said that “the state’s duty to keep its highways in a reasonably safe condition extends to the…shoulders and the adjacent parts….”

And a 2004 New York state case found that a cyclist could sue a county where there were no warnings of a deteriorated pothole-filled asphalt surface and no barriers kept riders away. The county had abandoned the bikeway but didn’t take any action to warn cyclists not to use it.

In general, it seems a government can get successfully sued for not keeping park facilities in shape, but not necessarily for exercising discretion, such as not actively enforcing a bicycle speed limit or not putting up a traffic signal. In 1991, for instance, a Florida court said that the City of Tampa wasn’t obligated to enforce the posted bicycle speed limit after a pedestrian sued for being hit by a speeding rider.

In general, courts have ruled that governments aren’t liable for failing to install signs, lights or markings unless a statute requires them. Exception: if the government knows of a dangerous condition.

If, however, a state puts traffic control signals up, it must “maintain them with reasonable care” and meet applicable standards, says the report.

But if a government doesn’t follow a “nonmandatory standard or guideline,” such failure could be introduced as evidence.

Courts in most states will exempt governments from liability for “discretionary” government action. But many legal disputes have focused on defining “discretionary.” The definition may vary by whether the government exercised discretion at the “planning” v. “operational” level. In general, day to day decisions of staff are generally considered discretionary in Utah courts. But in 1999, the Utah Court of Appeals ruled that while the state was immune for general discretionary policy decisions, the Utah Department of Transportation could not claim discretionary immunity for every on-the-spot decision made by staff (Trujillo v. UDOT).

(The Utah Governmental Immunity Act immunizes state and local agencies from claims based on “any injury which results from the exercise of a governmental function.” But the law allows exceptions, including harm caused by “a dangerous or defective condition of any public building or structure” or “a negligent act or omission of an employee” on the job. But the immunity covers discretionary functions.)

Several U.S. Supreme Court decisions have stated that discretionary immunity applies at the planning/policy level of top officials and to actions taken by an inspector on the street. In 2004, the Utah Supreme Court, however, ruled that the U.S. Supreme Court ruling didn’t give immunity to a UDOT inspector’s decision to use barrels rather than barriers for traffic control.

And in another case decided back in 1977, the U.S. Court of Appeals ruled that designing a bridge and roads leading to it was a “discretionary function,” and so the federal government was not liable for negligence for helping Utah design an allegedly faulty structure.

Most states have enacted some sort of recreational use statute that limits liability of property owners for injuries caused in sports. But the laws vary on whether they apply to public entities or to bicycling. Even if the laws don’t specifically mention bicycling, courts may interpret them as covering it. The Utah statute clearly includes bicycling as a recreational use, making it harder for a plaintiff to win a claim if injured on a recreational bike path.

Most successful claims against governments by bicyclists involved maintenance issues, such as failing to fix a hazard or placing a warning of it, not replacing or repairing broken signs or signals, or leaving obstructions on a path; according to the study.

And no state reported being successfully sued for not including bicycle facilities in a highway project, even if a law requires them.

The best way to prevent lawsuits? Simple. “Several agencies responding to the survey stressed that a proactive maintenance program for bikeways is important to reduce the incidence of bikeway-related tort claims,” the document says.

UDOT Bike/Ped Coordinator Evelyn Tuddenham said she didn’t know of any cases in Utah. She stressed that the department policy is to build safe facilities that can be well maintained in the first place rather than worry about not building for fear of getting sued.

“We don’t look at it from the viewpoint of ‘are we going to get sued if we do this.’ We look at it from the aspect of ‘are we going to keep people safe,’” she said.

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