1. UNDERSTANDING TORT LIABILITY CHALLENGES PRESENTED BY BICYCLES September 4, 2008 MICHAEL E. TARDIF Freimund, Jackson & Tardif, LLP www.fjtlaw.com 711 Capitol Way South, Suite 602 Olympia, WA 98502 (360) 534-9960

2. DOES BICYCLE USE OF TRANSPORTATION FACILITIES AND PUBLIC PROPERTY PRESENT SPECIAL LIABILITY CONCERNS FOR GOVERNMENTS? Generally, yes Increase in liability related to bicycles is not an “urban myth” Some bicycle liabilities can be reduced through risk management Some bicycle liabilities are difficult to manage and present policy questions

3. BICYCLE RELATED LIABILITY ISSUES Issue One: –What is the legal basis for public liability for bicycle accidents ? Issue Two: –What are common defenses to public liability for bicycle accidents? Issue Three: –What roadway and property features cause bicycle claims against government? Issue Four: –What special liability problems do bicycles present for governments? Issue Five: –Are there ways that governments can reduce or manage liability related to bicycles?

4. ISSUE One: Legal Liability BASIS OF LIABILITY Waiver of sovereign immunity Four elements of a tort –Legal duty of care (i.e., duty to exercise ordinary care in road maintenance) –Breach of legal duty –Causation –Injury

5. ISSUE One: Legal Liability (cont.) Common alleged breaches of duty related to bicycles –Failure to maintain road or trail –Failure to make bicycle-related capital improvements –Failure to design or construct road or trail to standard –Failure to warn of hazard

6. ISSUE Two: Defenses to Liability Preliminary Defenses –Does the jurisdiction retain significant sovereign immunity?  “design” immunity –Are there special immunities limiting liability for some matters?  Recreational immunity statutes –Does the jurisdiction have caps on damages?

7. ISSUE Two: Defenses to Liability (cont.) Standard Defenses to Common Claims –Maintenance Claims  Lack of notice of defect  Reasonable maintenance program  Factual causation  Comparative or contributory negligence

8. ISSUE Two: Defenses to Liability (cont.) Standard Defenses to Common Claims (cont.) –Capital Improvement Claims  Sovereign immunity  Political decision/issue  Priority  Lack of funding

9. ISSUE Three: Bicycle Claims COMMONLY OCCURRING CLAIMS Frequent claims related to bicycle use of public facilities –Pavement defects or debris on road or trails  Trees along trails –Metal expansion joints, rails, hinges, etc. on bridges and other structures –Failure to make capital improvements to existing roads for bicycle safety –Sight distance problems (often vegetation) along bikeways, especially at intersections –Cars exiting driveways on routes used by bicycles –Railroad tracks

10. ISSUE Three: Bicycle Claims (cont.) COMMONLY OCCURRING CLAIMS (cont.) Less frequent bicycle claims –Failure to warn or sign  Often at intersections  Railroad tracks crossing trails  Driveways along trails/bike routes –Failure to comply with bicycle safety designs in new construction

11. ISSUE Three: Bicycle Claims (cont.) Sample bicycle claims against Washington State (actual claim language) –Claimant was bicycling on a sidewalk when she struck 1 of the 3 wooden bollards. Claimant suffers from a spinal fracture and is a quadriplegic. –Dr. H. was riding his bicycle on SR 2 when he collided with a metal beam that was vertically raised above the surface. Dr. H. suffered multiple cervical neck fractures and a blunt impact to the head. He died at the scene.

12. ISSUE Three: Bicycle Claims (cont.) Sample bicycle claims against Washington Counties (actual language) –Claimant alleges that, while bicycling on the Snoqualmie trail, “overgrown grass” caused her to fall into blueberry bushes and sustain injuries. –Claimant alleges that, while riding his bicycle through a tunnel, he became disoriented because of poor lighting and crashed into a wall. –Bicyclist hit piece of maple branch and was thrown off his bike. –Bicyclist was riding on recommended biking route when he ran into unmarked deep hole or defect in road causing him to fall off bike/injured. –Wrongful death of bicyclist partly attributed to road design. Bicyclist was riding on Burke Gilman Trail when he was hit by motorist backing out of private driveway.

13. ISSUE Three: Bicycle Claims (cont.) Sample bicycle lawsuits nationwide (actual language) –Plaintiff was permanently injured while riding his bicycle down a concrete path. The intersection of the bicycle path and service driveway was lined with a row of lilac bushes which prevented a clear view of the intersection. –Injuries suffered by the nine-year-old son when the bicycle he was riding allegedly struck a crack in the Kent Creek Bridge. –B. encountered a steep part of the trail, which caused his bicycle to gather significant speed as it descended. When B. reached the bottom of the steep portion, the front wheel of his bicycle struck a hole, causing B. to fall, hit the asphalt, and sustain fatal injuries. –A. veered off the paved public trail and onto a dirt path to take what she believed would be short-cut. The path appeared to be well-traveled. A. was seriously injured when she biked off the loading dock which was located at the end of the dirt path. –As she rode on the trail, she was hit by a stream of water from an oscillating sprinkler located by the shot put field. The water hit her on her head and knocked her off her bike.

14. ISSUE Four: Special Problems LIABILITY CHALLENGES PRESENTED BY BICYCLES Roadway imperfections, which are minor problems for four-wheel vehicles, are major problems for bicycles Roadway features that comply with all design standards, such as expansion joints, can still be a serious problem for bicycles Existing facilities were not designed for bicycles and cannot be improved without major capital expenditures

15. Ballard Bridge

17. ISSUE Four: Special Problems (cont.) LIABILITY EFFECT OF BICYCLE ROUTE DESIGNATION Claims for pavement condition and sight distance problems occur more frequently on routes formally designated for bicycle use Designation of route as bicycle route creates expectation that design and maintenance meets standards for bicycles

18. ISSUE Five: Managing Liability RISK MANAGEMENT DESIGN, CONSTRUCTION, AND MAINTENANCE ISSUES All new design and construction should meet any appropriate standards for bicycles, such as appropriate drain grates, bridge rails, expansion joints, etc. On bicycle trails and roads where bicycle use is common, pavements and maintenance must meet higher standards Warning signs and sight distance problems should be considered on dedicated bicycle routes and trails

19. ISSUE Five: Managing Liability (cont.) RISK MANAGEMENT DESIGNATION OF BICYCLE ROUTES Formal designation of bicycle routes increases potential liability, so liability can be reduced by a careful approach to formal route designation If bicycle routes are designated, liability can be reduced by –upgrading pavement, roadway features, and maintenance to decrease potential for bicycle accidents –where upgrades are not feasible due to cost or other considerations, route designations and signs should disclaim that roadway features have been designed for bicycles

20. CONCLUSION Bicycle use of roads and trails does increase public liability in jurisdictions that have waived sovereign immunity Liability for alleged maintenance failures can be significantly mitigated by active road and trail maintenance programs In jurisdictions that allow liability for failure to make capital improvements, this liability is hard to mitigate because capital funding is usually a priority and political matter not within the control of administrative officials