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  • Richard L. Duquette

Bicyclists' Rights Against Public Entities: Potholes to Trails Part 3 - Immunities Shield

This three-part series of articles focuses on imposing liability against state and local public entities in California. It does not address Federal liability, which is governed by the Federal Tort Claims Act. The intent is to generally explain how bicyclists can protect themselves in a variety of situations, including when they face pitfalls such as governmental immunity.

Part one addressed general principles of government liability and the procedural requirements for filing a claim. Part two discussed the different types of government tort claims. Part three discusses the various immunities to liability that governments enjoy.

In the first installment of this series we talked about the procedural pitfalls to bringing a claim against a public entity. Here we talk about the pitfalls imposed by substantive law. Of these, the biggest pitfalls by far are the statutory public entity immunities. We will list a few, but the reader should be warned that the following information is not legal advice specific to any case. A careful study of their application and exceptions in any given case is required by a skilled lawyer.

  1. Recreation Immunities: Civil Code §846, also known as the Recreational Use Statute, states that land used for recreational purposes need immunities so the public and private lands aren't closed off to use. Note, however, that the statute has an exception for gross negligence, and some cases have refused to extend this statute's application to government entities (See Delta Farms Reclamation District v. Superior Court of San Joaquin County, 33 Cal.3d. 700 (1983)).

  2. Design Immunity: See Hampton v. County of San Diego, 62 Cal.4th 340 (2015), which shields public officials from liability for negligent road design.

  3. Traffic Control Signals Immunity: Public entities are immune from liability for stop sign placement, speed and yield signs, right of ways and more.

  4. Natural or Unimproved Conditions: Gov. Code §§818.b, 830.4, and 831.2 provide that a government entity will not be held liable for someone injured by a fallen tree. (Exception, no immunity to a non-user on adjacent property.)

  5. Discretionary immunity: Gov. Code §820.2 provides immunity for judgment calls within the scope of employment.

  6. Trails and Roads: Although Civil Code §846 generally protects the private owners of land used for recreation from liability, unless people pay to use the land or participate in the activity. We noted above that this "recreational use" immunity is not absolute for government entities. However, Gov. Code §831.4 establishes a very specific category of immunity for unpaved trails and roads, whether they are used recreationally themselves, or used to access recreational areas. As we noted in part two of this series, immunity does not apply on paved roads the government holds in easement unless the public entity made a reasonable effort to warn users of potentially dangerous conditions (Gov. Code §831.4(c)). However, immunity does apply to unpaved roads and trails, because these are classified as "unimproved land." If you are mountain biking on an unpaved public trail and you crash as a result of striking a protruding tree root, sovereign immunity will shield the public entity from liability. The theory behind this form of immunity, in contrast with that of liability for dangerous condition on paved roads, is that these dangerous conditions are naturally occurring, not the result of negligent maintenance. Where the land is unimproved, the user is on notice that such conditions may exist, and the public entity in control of the land is not expected to be aware of every possible hazard, nor would this be reasonable. Contrast this with the user's reasonable expectation that a paved road will be well enough maintained that clearly dangerous conditions will be remedied in a reasonable time.

  7. Paved Trails are Still Trails: One problem here, however, is that the courts have interpreted this statute very broadly. Gov. Code §831.4 provides immunity for three categories of trails (these letters correspond to actual subsections in the statute):

    • "Any unpaved road which provides access to (recreational activities),"

    • "Any trail used for the above purposes," and

    • "Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity…so long as such public entity shall reasonably attempt to provide adequate warnings."

Noting the apparent higher standard of care in the warning requirement for paved trails, many injured cyclists have attempted to hold public entities liable under subsection (c) for failure to warn of dangerous conditions on paved trails. However, courts have consistently rejected this argument, holding that subsection (c) did not exist to provide a different standard of care for paved vs. unpaved trails, but for paved trails on a government easement, as opposed to paved trails on land that the government owned. Armenio v. County of San Mateo, 28 Cal.App.4th 413 (1994). Recognizing this, other cases have determined that most paved bicycle trails on public land in fact fall under subsection (b) as "any trail" used for recreational purposes. Carroll v. County of Los Angeles, 60 Cal.App.4th 606 (1997), Farnham v. City of Los Angeles, 68 Cal.App.4th 1097 (1998).

Courts have further held that even if you are walking on one of these paved trails and injured due to a dangerous condition, sovereign immunity still attaches. See Amberger-Warren v. City of Piedmont, 143 Cal.App.4th 1074 (2006), Montenegro v. City of Bradbury, 215 Cal.App.4th 924 (2013). Plaintiffs in both of these cases attempted to characterize the paved trails in question as sidewalks, as opposed to trails used for recreational activities. However, because they were in parks and not adjacent to the street, these trails were held to be recreational use trails and immunity was found.

  1. Hazardous Recreational Activity: Under Gov. Code §831.7, public entity immunity exists whenever the injured person is participating in a hazardous activity. Hazardous activities are defined as:

  • Bicycle Racing, jumping

  • Motor cross

  • Mountain biking

Narrow exceptions to hazardous recreational activity immunity include:

  • When the public entity knows of a dangerous condition

  • When participants pay money to use the land or participate in the activity

  • When the condition arises from a failure to properly maintain the land.

  • When the condition arises from gross negligence

  • Pothole law

  • When the condition is identified by Hawkeye activism (putting public entity on notice by ground spray paint, and contacting City engineers)

If you have been injured riding a bicycle due to a dangerous condition on public land, you need the best representation you can get. While it is true that many categories of cases involve public entity immunity, each case is different, and yours may fall into an exception. Contact experienced bicycle injury attorney Richard Duquette today. He will fight to protect your right to just compensation, so you aren't left injured without a remedy.


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