Clearing the Dangerous Judicial Dirt From California's Class One BikewaysFor six years, California's cities and counties have been legally allowed to build Class One Bikeways, bicycle paths, just as dangerous as they choose, with complete immunity from liability for deaths and injuries caused by the dangers that they have chosen to build into their bike paths. Safety design standards for all classes of bikeway have been in effect for almost thirty years, but six years ago California courts rendered impotent the safety standards for bike paths. The California courts have concluded that the safety design standards for California's Class One Bikeways, commonly called bike paths, are not valid because, in terms of law as they interpret it, bicycle paths are the legal equivalent of dirt trails through unimproved property. Since no property owner can be held liable for the condition of dirt trails, therefore, say the courts, no government agency with Class One Bikeways can be held responsible for injuries caused by either the defective condition or the dangerous design of such facilities. In 1970, California's motorists and highway organizations, such as the California Highway Patrol, feared that the growing number of adult cyclists would plug up California's highways. There had been several years of the "bike boom", fueled by demographic, social, and political changes. To control the effect of bicycle traffic on motor traffic, the California Legislature authorized two things: first, a set of design standards for bikeways for cyclists to use; second, a committee of government highway agencies to recommend changes to traffic law to prohibit cyclists from using the roadways where bikeways existed. The bikeway design standards were prepared and delivered by UCLA Transportation Studies; these were copies of Dutch sidepath standards, horribly dangerous for lawful cyclists. When cyclists discovered (they were never openly informed) the bikeway design standards and the proposed laws, they revolted. I, John Forester, led the revolt, first alone and then as president of the California Association of Bicycling Organizations. Once cyclists got themselves into the process (very small representation, but very impressive technical qualifications), the proposed restrictive laws were watered down and a completely new set of bikeway design standards was created.. We who wrote those standards did so with specific expectations and purposes. We wanted bikeways that were at least as safe as roadways. We assumed that bicycle paths were just small roadways, roadways from which motor traffic was excluded. We intended that the minimum safety design criteria would prohibit governments from producing bikeways that were more dangerous than the standards allowed. Our work was authorized by the Legislature in Streets and Highways Code sections 890 to 894.2, and published as California Highway Design Manual Chapter 1000. Afterwards, the Association of American State Highway and Transportation Officials copied our standards for its standard, its Guide for Bicycle Facilities. Now, several ill-informed judges have thrown all the work regarding Class One Bikeways down the drain. The judges did not do this all in one decision. It started with cases that involved a motorcyclist crashing while riding a dirt trail in a governmental park, and with an equestrian whose horse stumbled, or suchlike, on another dirt trail. Government Code 831.4 quite properly immunizes government against liability for accidents caused by the condition of a dirt trail across unimproved land. However, by a series of insidious links, each apparently unremarkable to one who looks only at the words, judges came to conclude that a Class One Bikeway built according to the standards, was, in legal meaning, no more than a dirt trail. (Legal thought is about words; legal thinkers make great use of words, but they all too frequently fail to consider the extent to which their words contradict the real world.) This final result is the appellate court opinion in the Farnham case. (Farnham v City of Los Angeles (1998) 68 Cal. App. 4th 1097) Farnham was cycling along Burbank Blvd. alongside Balboa Park, which is the Sepulveda Dam Basin. Because there are no side roads and no adjacent houses, bicycle traffic along Burbank at that location is diverted to the sidewalk, which the City of Los Angeles has listed as a Class One Bikeway and part of its Bicycle Transportation System. Farnham was accompanied by another cyclist who witnessed the accident. As Farnham was cycling along, the pavement under him collapsed, pitching him headfirst into a ditch and breaking his neck. The City had noted the erosion that caused the collapse, but had neither repaired it nor closed that section of the path. To put it bluntly, the appeals court held that a Class One Bikeway is a trail because it is closed to motor traffic, and thus cannot be part of the highway system, all based on the argument that the Vehicle Code does not define bicycles as vehicles. The city presented that argument, and the court accepted it because Farnham's attorneys were not sufficiently well-informed to counter it. This judicial nonsense has to be overturned. One way of doing this is to use another accident that is caused by a defect in a Class One Bikeway. In such a case the bikeway owner will claim immunity under the Farnham case and the judge will agree because that is precedent set by an appeals court and published in the law books. Then that ruling needs to be appealed to a court which will hear the appropriate arguments to counter the arguments presented to the Farnham court. Such a case is that of David Prokop v City of Los Angeles. Prokop was cycling through a narrow gateway with sharp curves and close-in fences in the Los Angeles River Class One Bikeway, which is a paved maintenance road owned by the Flood Control District, and collided with the chain link fence, cutting loose a large flap of scalp tissue. The gateway has several defects when measured against the standards for a Class One Bikeway: too narrow, curves too sharp, no clearance between bikeway surface and fence. The narrow, curving gateway is entirely unneeded, because a safe, straight-through gateway of proper width is right adjacent to it, closed against motor traffic. Provision of the usual bollards, or of a narrow gate within the full width gate, could have been provided, a gateway that would still both exclude motor traffic except when opened for it, while permitting bicycle traffic. The City has claimed the immunity in a motion to dismiss the case. The City's arguments appear to be childish and inaccurate. One City expert claims that there are no contiguous bicycle facilities beyond the gateway. Therefore, one must conclude, he is logically claiming that cyclists must arrive at the start of the bikeway by flying through the air on their bicycles, like witches on broomsticks. Another says that the gateway has been deliberately designed to be dangerous so that cyclists will slow down for their own safety. You know the crap. However, all the arguments boil down to one. If the bikeway is used with the care that would be required for a dirt trail, and cyclists obey the painted marking to WALK BIKE through the gateway, then it is safe to use. There is also the contrary argument. If this Class One Bikeway is used with the care and expectations appropriate for a Class One Bikeway, then it is dangerously defective. The legal issue concerns: Which set of laws governs, the laws for a trail through unimproved property or the Streets and Highways Code with its bikeway design standards in the California Highway Design Manual Chapter 1000? The official judicial opinion, expressed in the Farnham case, is that the laws for a dirt trail through unimproved property govern, despite the fact that this is an urban area paved road that Los Angeles itself claims to have been built according to the bikeway design standards, that is, except when it is denying that claim for purposes of this case. In the hearing over the immunity claim, the judge said that he rules that the Farnham case governs this case and the City is immune to liability. When told by Prokop's attorney that this would be appealed, he was overheard to mutter that that was the proper place for it. Prokop needs a new attorney experienced in appellate procedure, amenable to learning about bicycling issues, and sharp about both semantic and engineering controversy. We need to help him find such an attorney. This case should not require a great deal of legal work; all the basic research has been done. All the relevant arguments in the string of cases leading up to the Farnham decision, and those presented in the Prokop case, have been analyzed and shown to be logically and factually defective, and contrary arguments have been prepared. The history of the work done on bikeway standards and the governmental requirement that it be done is known. The idea that the Legislature did not intend that our highways include a bicycle transportation system in which Class One Bikeways be treated as small highways, instead of as the dirt trails that the judges have decided, is absurd, given the facts. The public presentations of the City of Los Angeles, on its official web site concerning the transportation element of the city plan, under Bikeway Design Standards, states: "Design Standards - Class I and Class II. All Class I (bike path) and Class II (bike lane) facilities shall be designed to the mandatory standards set forth in Chapter 1000 of the CALTRANS Highway Design Manual." The same web site, under Bicycle Plan Chapter 3, states that the Los Angeles River Bike Path is a transportational route. "This bike path would eventually link the area adjacent to the Canoga Park High School with Long Beach Harbor, passing through Downtown Los Angeles, linking several activity centers and regionally significant open spaces within the City's most import Greenway Corridor. The magnitude of this project requires a firm long-term commitment to its implementation ov the life of this Bicycle Plan and beyond." We have the material to show that Los Angeles boasts that its bikeway system meets California's mandatory safety standards, and then tries to wiggle out by claiming that its bikeways, legally speaking, are no more than dirt trails after an accident has been caused by the City's defective design that fails to meet those standards. There is an additional legal complication. David Prokop is a very determined individual who writes clearly and powerfully. He was a long-distance runner and editor at Runner's World when that office was adjacent to Bike World's. Prokop insists on also employing the legal argument about traps. If the government has created what is termed a trap, then the governmental immunity is denied. That's quite reasonable; if government creates a trap along a facility, then that facility is no longer an unimproved trail. Here's a case example. When government placed a stop sign in a location from which approaching drivers could not see it, that was determined to be a trap. However, the trap argument requires that the condition already be very dangerous, as we consider running a stop sign to be. I predict that if reliance is placed on the trap argument, it will fail at trial. The trap argument is useful only if the judicial system requires that the controlling law be that for dirt trails. Assuming that the path user has to exercise the care that would be required on a dirt trail, and obeys the pavement markings WALK BIKE, the facility is safe. That has been the City's argument all along. The narrow gateway is dangerous only if it is used in the manner appropriate for a Class One Bikeway, that is, by cycling through it. Since the gateway is safe when used as if the facility were a dirt trail, then the trap exception cannot apply and the City retains its immunity from liability. I have not been able to persuade David that his perceptions won't count at trial. He maintains that the narrow, curving gateway between closely margined fences has to be dangerous; after all, he was misled by its appearance and hit the fence, even though riding at only about 5 mph. But the City requires WALK BIKE, and that wins in a trial in which the Class One Bikeway is considered to be the legal equivalent of a dirt trail. Whoever becomes the appellate attorney who takes on this case will have to maneuver between the legal need to overturn the Farnham decision and Prokop's firm belief in the usefulness of the trap exception. The Prokop case is important to cyclists in California, who may thereby regain their legal protection against dangerous conditions on bike paths. It may also be important to cyclists in other states, which might find ways to use their own laws to imitate the semantic errors produced by California's judges. I am assisting as expert in this case on a pro-bono basis, and I will continue to do so. Does anyone have suggestions about a California appellate attorney who is amenable to learning about bicycle issues and is smart in both semantic and engineering controversy? John Forester, MS, PE
Bicycle Transportation Engineer
7585 Church St
Lemon Grove CA 91945-2306
619-644-5481
forester@johnforester.com
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Prokop's Press Release:
PRESS RELEASE
1. April 7, 2005
For Immediate Release
BICYCLE ACCIDENT LAWSUIT MAY BECOME LANDMARK CASE
An injustice that has confronted California cyclists for almost a decade
may finally be corrected --
if a bicycle accident lawsuit currently filed in Los Angeles Superior Court
turns out to be the
landmark case some are predicting.
The case is Prokop vs. City of Los Angeles, and at stake is the very issue
of whether California
cyclists have legal recourse against cities and counties for bicycle
accidents on public bike paths.
There are hundreds of miles of public bike paths in California. They may
seem safe and inviting,
but there's a nasty little secret about them. Many of them aren't safe, and
since a questionable, and
some say flawed, court decision in 1997, no cyclist injured as a result of
a dangerous condition on
a public bike path in California has been able to get a personal injury
lawsuit to trial because cities
and counties have successfully claimed immunity from lawsuit under
government statute 831.4.
The irony is staggering: The one place where cyclists have no legal
protection is on public bike
paths specifically built for them and their safety!
To understand how this bizarre scenario came about, it's necessary to look
at a California
government immunity statute that was written to protect government entities
from liability for
accidents occurring on unimproved or marginally improved property.
Government Code 831.2
applies strictly to unimproved property. Government Code 831.4 provides
immunity against
lawsuits for accidents occurring on unimproved trails, unpaved access roads
to recreational or
scenic areas, and paved paths on easements of way, granted to public
entities, providing access to
unimproved recreational areas.
How public bike paths, some of them built at considerable expense, under
highway safety
standards, for the express purpose of bicycle transportation, found their
way into the mix of
minimally improved roads, trails and paths mentioned in Government Code
831.4 is a legal
aberration that has rankled cycling safety experts since the Carroll vs.
County of Los Angeles case
in 1997. The Carroll case was the first time the immunity accorded under
Government Code
831.4 was formally applied to public bike paths. And, ironically, that case
didn't even involve a
cyclist, but rather a rollerblader.
The Prokop case, however, holds promise of restoring some sanity to the
situation and finally
giving cyclists equal protection under the law. For as things stand now,
operators of other types
of vehicles (cars, trucks, motorcycles, etc.) who are injured due to
roadway defects have legal
recourse; cyclists injured as a result of a dangerous condition on a public
bike path do not.
Moreover, a cyclist involved in an accident caused by a dangerous condition
on a regular street
has legal recourse against a city or county; another cyclist having the
same type of accident
caused by the same dangerous condition on a public bike path does not!
The Prokop accident happened on the afternoon of November 6, 2002. David
Prokop, a Los
Angeles writer-entertainer with a long history in athletics (he holds a
variety of national and world
records), was exiting the Los Angeles River Bikeway on his bike just north
of Griffith Park at
Victory Boulevard. The narrow exit gateway seemed safe to him as he
approached, but a chain
link fence right after the exit cut in at a deceptively sharp angle against
the cyclist's line of travel.
Prokop, who had never been on this bikeway before, hit the fence. His
injuries included a severe
head laceration -- a large, crescent-shaped flap of flesh and skin had to
be surgically reattached to
his forehead in a procedure that required 100 stitches. He also suffered a
sprained neck from the
impact force of hitting the fence.
If any bicycle accident case has the potential to right the wrong imposed
upon cyclists by the
Carroll decision and other rulings since then, this would appear to be the
one. The Prokop
accident happened on an $11-million bikeway (the very antithesis of the
type of primitive,
undeveloped paths, trails and roads covered in 831.4), the bikeway was
required to conform to
the California State Highway Design Manual, Chapter 1000 (it does not), and
the fact that it
doesn't provides prior notice legally that the exit where the accident
occurred was indeed
dangerous. The plaintiff also has cited a hidden trap at the Victory
Boulevard exit to the bikeway
(if a trap has been created, no statutory immunity applies). Finally, the
expert witness for the
plaintiff in this case is none other than John Forester, probably the
preeminent cycling engineer in
the country and the author of Bicycle Transportation, the definitive guide
to bike path design in
America.
Nevertheless, the City of Los Angeles has filed a motion for summary
judgment with the Court,
asking that the case be dismissed because the City has immunity from
lawsuit under 831.4. The
City claims that the bikeway exit is not dangerous, but the plaintiff has
demonstrated that it is, that
the City should have known about it, and done something to correct it. The
City has also
presented an argument that rises to the level of either lying to the Court
or lying to the public
(take your pick!). On its own Website the City says, "All Class I (bike
path) and Class II (bike
lane) facilities shall be designed to the mandatory standards set forth in
Chapter 1000 of the
CalTrans Highway Design Manual," yet in the Prokop case it argues that the
Los Angeles River
Bikeway does not have to meet those standards. (And we all thought the word
"Mandatory"
meant ... mandatory.) In any event, it appears that the City's stance
really translates to -- no matter
how dangerous the bikeway, you can't sue us because we have immunity.
In the broader sense, at issue in the Prokop case are several important
legal questions: Should
cyclists have legal recourse or not for bike accidents on public bike paths
caused by dangerous
conditions, included faulty engineering and design? Secondly, do cities and
counties bear legal
responsibility or not for the condition and engineering of such bikeways?
Or are they, in fact, at
liberty to design, build and maintain them as carelessly as they wish, with
little real concern for
public safety, since they supposedly have immunity?
The Court's decision on the City's motion for summary judgment in the
Prokop case will go a long
way to answering these questions.
A hearing on the motion will be held at 8:30 a.m., Monday, April 11, in Los
Angeles Superior
Court, Department 58, downtown Los Angeles, Judge Rolf M. Treu (pronounced
"Troy")
presiding. The Prokop case number is BC 305404.
Contacts:
Stan Pantovic -- 626-574-7037
Leon Bach -- 818-953-9953
John Forester, MS, PE
Bicycle Transportation Engineer
7585 Church St.
Lemon Grove, CA 91945-2306
619-644-5481 www.johnforester.com
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