Was City Liable For Failure to Demarcate Boardwalk Bike Lane?
Linda Kuchmeister, sought damages for injuries she sustained while attempting to avoid pedestrians who entered her bicycle lane as she was riding on the boardwalk in Long Beach, New York. Kuchmeister struck a movable sign located in the middle of the boardwalk and fell, breaking her shoulder, after she was forced to swerve to avoid crashing into the pedestrians. The City moved for summary judgment dismissing Kuchmeister’s complaint.
The boardwalk bicycle “lane” was not physically segregated from the throngs of beachgoers and visitors utilizing the boardwalk and was not demarcated by painted lines. The City of Long Beach conceded that it received “a great deal of complaints,” including in writing, that the bike “lane” constituted a dangerous condition for those on the boardwalk. Notwithstanding that the known dangerous condition allegedly had resulted in injury, the City sought summary judgment dismissing the complaint.
Kuchmeister’s accident occurred in the morning, while she was riding her bicycle on the boardwalk. The boardwalk runs along the City’s public beach for 2.2 miles and its average width is 52 feet. At one time there was an obvious bike lane on the boardwalk demarcated by painted white lines. After the boardwalk was destroyed by Superstorm. Sandy, the boardwalk was rebuilt using a different type of wood. A representative of the City testified that testing revealed that paint and thermal markings would not successfully adhere to the new wood. As a result, there was no obvious, distinct bike lane on the newly constructed boardwalk. The only demarcation of a bike “lane” was a different direction of the wooden planks from the remainder of the boardwalk in a 12 foot section in the center of the boardwalk.
It was undisputed that movable bike lane signs were placed on the boardwalk by the City at street entrances to the boardwalk, in an attempt to give notice of the existence of a bike “lane.” Thomas Canner—a witness produced for deposition by the City—was at the time the City’s superintendent of the beach, parks and the central maintenance department overseeing the daily operations of the boardwalk and the beach, but he was not consulted concerning the purchase or placement of the signs prior to their appearance. The decision to order and place the signs on the boardwalk was purportedly made by two City officials. No evidence was submitted by the City reflecting that any study was conducted prior to the placement of the signs or that their use resulted from a reasoned policy determination.
The signs consisted of a black, heavy base; a pole; and a green, rectangular sign mounted to the top of the pole that read “Bike Lane,” with a picture of a bicycle. The bike lane signs were not permanently affixed to the boardwalk and the City had problems with people moving them. In addition, some of the signs were damaged from storms and people throwing them off the boardwalk. Eventually, the City had “less and less” signs, for a total of 14, the number counted by Kuchmeister according to her testimony. Canner believed there were originally 20 signs, but from purchase orders produced by the City it appeared that 30 signs were purchased. There were no other lines, markings or signs which signified the bike “lane” or placed pedestrians on notice of its existence on the boardwalk.
Joseph Febrezio, the Commissioner of Public Works for Long Beach, attested that the City did not receive any written notice of the signs being moved to the center of the bike path or of anyone riding into the signs. But Febrizio conceded that “[t]he City received a great deal of complaints, including written notice, that the lack of lines resulted in a dangerous condition inasmuch as the bicycle lanes were insufficiently demarked.” Those complaints continued after the signs were utilized.
Kuchmeister’s accident occurred when, without warning, a group of pedestrians entered the boardwalk from the beach and crossed into the bike “lane” in front of her. According to Kuchmeister, she swerved around the pedestrians to avoid crashing into them and in the process struck a sign located in the middle of the lane. Kuchmeister struck the rectangular portion of the sign. Upon contact, Kuchmeister flew off her bicycle onto the ground, fracturing her shoulder.
Kuchmeister alleged that the City failed to safely design the use of the boardwalk to ensure that pedestrians did not interfere with the safe riding of bicycles (and vice a versa). Further, Kuchmeister asserted that the City created a dangerous condition by placing movable bike lane signs in or around cyclists’ course of travel on the bike path and utilizing signs without “flexible breakaway bases,” as recommended by the manufacturer.
The City contended that it could not be held liable for this accident because: (i) the City was shielded by immunity from liability for its design of the boardwalk and decision to use the bike lane signs to demarcate the bike lane; (ii) the sign that Kuchmeister rode into was open and obvious and not inherently dangerous; and (iii) even if that condition was dangerous, the City did not receive prior written notice of the danger, a condition precedent to maintaining a cause of action.
The City initially argued that the sign into which Kuchmeister crashed was open and obvious and, therefore, her action should be dismissed. But that argument missed the point. Kuchmeister crashed into the sign not because she failed to observe it but because she was attempting to avoid striking pedestrians who likely were unaware that they had entered into a bike lane. That was the crux of her action—the City’s folly in believing that placing an occasional sign near the bike path would somehow protect from injury bicyclists and pedestrians sharing the boardwalk.
A municipality owes a nondelegable duty to the public to keep its streets in a reasonably safe condition. But that duty is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Here, the City’s design and oversight of the boardwalk—upon which bicycle riding was invited—and its use of movable signs to reflect the existence of a bike “lane,” was a proprietary function analogous to roadway planning, design and maintenance.
In the field of design engineering, a municipality is generally accorded qualified immunity from liability arising out of a planning decision. Nonetheless, a municipality may be found liable where it is demonstrated that its plan was based on an inadequate study or lacked a reasonable basis. To establish its entitlement to qualified immunity, the governmental body must demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberate decision-making process. The qualified nature of the immunity is based on the principle that once a municipality is made aware of a dangerous condition it must undertake a reasonable study thereof with an eye toward alleviating the danger.
Here, the City was cognizant of the danger to pedestrians and cyclists resulting from their shared use of the boardwalk. And there was nothing in the record to indicate that the City’s use of 14 movable signs in an attempt to create an observable bike lane on a boardwalk over 2 miles in length was the product of a reasoned plan or study. Putting aside hearsay issues related to their testimony, officials on behalf of the City merely attested that the signs were selected after the City discovered that paint and thermal striping would not adhere to the wood of the boardwalk. The City entertained the idea of installing overhead signs at each of fifteen entry points to the boardwalk from the street but found them to be cost-prohibitive. But those considerations did not amount to a study or investigation. At best, they constituted an informal review, which was insufficient.
The City conceded that it was aware of the hazard resulting from allowing bicycle riding on a busy boardwalk shared by pedestrians—who were required to cross the bike path at multiple locations to get to the beach and/or the surrounding streets. And the City implemented the “safety” design present at the time of Kuchmeister’s accident without first conducting a study relating to the hazard. So an issue of fact existed as to whether the City was negligent.
The City’s motion for summary judgment was denied.