Washington Case Law Update: Washington Appellate Court Holds Bicycling is Method of “Ordinary Travel”
From the Desk of Kyle D. Riley: Whether a municipality owes bicyclists the same duty to maintain its roadways that it owes other motorists has never been quite clear. In this case, the Washington Court of Appeals notes that bicycles are a mode of ordinary travel, and therefore cities have a duty to maintain roadways safe for bicycle travel.
Claims Pointer: In this case involving a bicycle accident allegedly caused by a defective roadway, the injured bicyclist sued the City of Port Orchard alleging its maintenance of its roadways was negligent. The City argued in part that it did not owe a duty to cyclists, and the trial court granted summary judgment to the City. The Washington Court of Appeals reversed that decision, holding that cycling is a mode of “ordinary travel,” and therefore the City had a duty to maintain its roads for bicycle travel. The case also touched on expert testimony, constructive notice, and assumption of risk – three areas of interest for insurers. Ultimately, the case conclusively establishes that bicyclists and motorists are owed similar duties to ensure their safe travel.
O’Neill v. City of Port Orchard, No. 47149-3-II, Washington Court of Appeals (June 28, 2016).
Pamela O’Neill (O’Neill), an experienced cyclist, was commuting home from work on July 18, 2009, when she was thrown from her bicycle at the intersection of Sidney Avenue and Kitsap Street in the City of Port Orchard, Washington (City). Prior to that day, she had never ridden down Sidney Avenue because she rode a new route every day for the challenge. While riding down Sidney Avenue, she noticed a sign indicating a steep incline and a change in conditions from smooth to “uneven” with “lots of variations in the condition of the road.” She understood the sign to mean she should use caution traveling down the steep incline. As she crossed the intersection, the bike’s handlebars jerked to the right, throwing her to the ground and causing serious injuries.
O’Neill sued the City, alleging it was negligent in failing to maintain the road in a manner that provided safe travel for bicycles. The City asserted several affirmative defenses including assumption of the risk, and it moved for summary judgment on the grounds that it did not owe a special duty to O’Neill as a bicyclist above its “general duty to keep roadways reasonably safe for ordinary travel,” that O’Neill failed to present evidence of any breach of a duty, and that O’Neill failed to show the City had actual or constructive notice of an alleged defect in the roadway. (Constructive notice arises where a defective condition has existed for such a time that a party exercising ordinary care would have discovered the defect.)
At the hearing on summary judgment, O’Neill submitted photographs of the roadway around the site of the accident that showed gaps between concrete slabs of up to four inches and height differentials of more than one inch. One photograph also showed grass or weeds growing in the gaps. Mark Dorsey (Dorsey), the City’s public works director testified for the City, explaining that since he became public works director in 2008, the City had not received any complaints regarding the road surface conditions at the intersection in question. The City also had no maintenance records of repairs at the intersection, although Dorsey did acknowledge there were older (pre-2008) asphalt patches installed at different points in the intersection.
O’Neill offered the expert declaration of James Couch (Couch), a trained and certified bicycle technician and cycling coach. Couch opined that the height difference between slabs of concrete could cause a skilled cyclist to lose control of their bike, and that defects running parallel to the direction of bike travel are difficult to see and particularly hazardous. However, the trial court excluded all of Couch’s testimony because he was not qualified as an expert regarding road design or defects or bicycle accident reconstruction. The court then granted summary judgment for the City, and O’Neill appealed. The Court of Appeals reversed the trial court’s wholesale exclusion of Couch’s testimony, explaining that while the trial court correctly excluded Couch’s testimony regarding the evidence of road repairs as outside his area of expertise, exclusion of his other testimony was in error given it was either eyewitness testimony or within his area of expertise.
The Court of Appeals then addressed the City’s argument it did not owe a special duty to O’Neill, noting that while a city is not required to maintain its roadways in perfect condition, it nevertheless does owe a duty to build and maintain roadways in a condition that is “reasonably safe for ordinary travel.” However, the City must also have either actual or constructive notice of a dangerous condition it did not create and a reasonable opportunity to correct it before liability can arise for neglect of its duty to keep the streets safe. While the court acknowledged that the evidence did not establish that the City had actual notice of the defect in Sidney Road, it also noted that the road was one of the City’s major roads and that the testimony and photographs—particularly the photograph depicting weeds growing in the gaps—established the defects had existed for a long time. As such, it was possible for a jury to determine the City had constructive notice of the defects, and summary judgment was therefore improper.
The court was unpersuaded by the City’s argument that its duty to maintain roads for ordinary vehicle travel did not include bicyclists. The court pointed out that Washington’s “statewide multimodal transportation plan” included bicycles, and that bicycles are subject to the same traffic laws as motorists when traveling on public roadways. Additionally, the court noted that the Washington Supreme Court had already recognized that bicycles are a “mode of transportation.” Accordingly, the court held that cycling is a mode of “ordinary travel” and therefore the City had a duty to maintain its roads for bicycle travel.
The court also reversed the trial court’s ruling that O’Neill assumed the risk of poor roadway surface conditions under the doctrine of implied primary assumption of risk. The court explained that while O’Neill assumed the general risk that she would fall off her bicycle and injure herself, she did not assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.
View full opinion at: https://www.courts.wa.gov/opinions/pdf/D2%2047149-3-II%20Published%20Opinion.pdf
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.
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