This article is from Richard Duquette’s podcast Bicycling and the Law, episode 34 ‘Bicyclists’ Rights Against Public Entities: Potholes to Trails’ recorded on February 01, 2017.
This article discusses the different types of government tort claims and the kinds of cases in which an injured bicyclist will be permitted to sue a public entity. This installment looks specifically at the kinds of cases in which an injured bicyclist will be permitted to sue a public entity. The first such category is the “dangerous condition” cases. To recover under the dangerous condition doctrine, the bicyclist must prove:
- The public entity owned or controlled the property,
- The property was in a dangerous condition,
- The risk of injury was reasonably foreseeable.
- This last element of foreseeability means the risk was created by a government employee (it does not apply to natural conditions on unimproved land), or the public entity had actual or constructive notice of the risk. You can prove notice by witnesses, pictures, and prior complaints of the condition, so long as it is described with particularity (i.e. by GPS coordinates). You can sometimes identify prior complaints here.
So what is a dangerous condition? The answer is that it must create a substantial risk of injury, when used with due care, in a foreseeable manner. A dangerous condition is more than a trivial defect, minor or insignificant condition. For example, a sidewalk crack or lift of height of 1.5 inches may be trivial by law. So, you must factor in surrounding circumstances like tree roots, drainage issues, and sight limits.
You will need to hire cost-effective experts to assist you in fighting back pretrial Motions for Summary Judgment or Adjudication. Assuming you go to trial, you will need to know how much the expert will charge to prepare and testify. Never underestimate the cost of a lawsuit. Then there is the issue of securing the necessary proof. You need to collect pictures, measurements, GPS coordinates, prior similar complaints of a dangerous condition, and any other evidence you have in order to prove that the entity was on notice of a defective condition.
One particular threat to bicyclists on public roads and paths is potholes. Running into a pothole on a bicycle can not only cause major wheel and frame damage, but also often results in a rider being thrown headfirst off of their bicycle, leading to serious injuries. Because by definition potholes are found on paved roads and trails (and are not a natural condition on unimproved land), injured victims can sue the government entity responsible for maintaining the road. Contrast this with an unpaved trail on unimproved land, where the presumption is immunity. Nevertheless, they must prove, as with any defective condition, that the government entity had actual or constructive notice of the condition (Heskel v. City of San Diego, 227 Cal.App.4th 313 (2014).
Proving actual notice is often difficult, but fairly straightforward. There must be a record of a complaint about the condition. These may be filed formally with the city or county responsible, where they are put in a database. Informal complaints may be found through Hawkeye Road Hazards Report and may bolster a claim of actual notice. If you can’t prove that a complaint was filed with the public entity putting them on actual notice, you can argue constructive notice. Constructive notice is when the condition was in existence for a long enough time and was obvious enough that the public entity should have known of it. If a pothole is found on a public roadway that is frequently trafficked, a court will be more willing to find constructive notice than if it is not very visible or on a paved bike path that is not as frequently traveled. In fact, this is exactly what the Heskel case referenced above was about. The reason that court found a lack of constructive notice is because the dangerous condition at issue there was well off the public roadway, and unlikely to be seen. Nevertheless, the question of notice is a question of fact, not of law. On the law, what matters is that state and local governments are not immune from liability based on a dangerous condition on a paved road or path unless they provide warnings.
Aside from dangerous conditions on public land, another way to successfully sue a government entity for your injuries is when you are struck by a negligently operated vehicle owned by the public entity. Liability is imposed upon a PE, is when on or its vehicles, in the course and scope of employment negligently causes injury to a bicyclist. However, police are immune when in the pursuit of a suspected criminal if there is a written policy and annual training is had for vehicle pursuits. (Distinguish police departments who merely have their officers “sign off” on pursuit training.) See California Vehicle Code §17004.7
Here are a few examples of cases likely to result in public entity liability: Stop signs covered by vegetation, pot holes in the road, buckling sidewalks, unattended or unsafe road construction, road design, road shoulder drop offs, negligent government motorists, even police cars, transit buses and trains can be sources of liability and danger for pedestrians.