State liable for damages if fixing is not a matter of practice
This case in Tennessee could have applicability in Baltimore and it's many (yet) unfixed bicycle unfriendly storm grates. Like the town of Cleveland Baltimore has a policy of updating storm grates during road reconstruction, and the initial court case found no liability since there was no road reconstruction on the road in question. But on appeal this decision was reversed, some quotes from the case:The plaintiff argues that the proof shows that the old style grate was a hazard of which
the State had been aware for many years. The State simply decided, according to the proof,
that it would not deal with the hazard until later. She further argues that if this Court affirms
the trial court, “the State would never have an obligation to remedy known hazards if the
State merely decided not to as a matter of practice.” Although the argument is not presented
in exactly these words, the thrust of the plaintiff’s argument is that the trial court improperly
granted the State immunity for a “category” of activity for which the State does not have
immunity under Tenn. Code Ann. § 9-8-307. We agree with the plaintiff.
...
We believe, however, that looking at this as a problem of state-wide magnitude is an
improper focus. Here, we are dealing with one grate that caused one injury to one bicycle
rider. We are not holding that the State must replace or alter every old style grate across the
state. We are simply holding that the State had a duty with regard to the subject grate. This
approach is consistent with the law regarding other sections of Tenn. Code Ann. § 9-8-307
which treat the State and its obligations as a landowner the same as a private landowner.
Byrd v. State, 905 S.W.2d 195, 196 (Tenn. Ct. App. 1995). A private landowner would
never prevail based on the argument that it could not be held responsible for one of many
dangers on its land simply because it owned too much land to eliminate all the dangers.
Moreover, even the long-range plan recognized a duty on the part of the State to identify and
cure specific hazards, including hazardous drainage grates. We conclude that the State had
a duty with regard to the subject grate to address the hazard to bicycle riders.
So if I am interpreting this right, Government cannot put off "indefinitely" fixing a known hazard by adopting a policy that I'll term as addressing the low hanging fruit only. That is to say that while true that it is more economical to fix storm grates during adjacent road reconstruction the kicker is some roads are reconstructed less frequently then others.
Or look at it this way, suppose you report a pothole that causing damage to cars and the city says "As a matter of policy we only fix potholes if we are doing something else on the street as well because it is more economical that way. And we are currently not planning on doing anything on that street, so just avoid the pothole." Hopefully you can see that policy does not fulfill the city's obligation to keep roads in good repair and is not a valid excuse in avoiding its obligations.
The reason why I am going on is not only because of the similarities with Baltimore and how it is replacing storm grates but there are other things that the state is obligated to do to accommodate bike/peds that they have attached to a secondary thing and claim no obligation if they are not doing the secondary thing.
Take Richie Highway for example, while the State is still looking into things what if Richie Highway does not meet the State's requirements to get fixed? Is that a reason why they never have to accommodate bike/peds crossing that road?
I am all for doing things economically and focusing efforts where they are needed the most but I think the lesson here is when establishing government policies make sure that it covers the "whole enchilada" of the problem. With storm grates a better policy might be x% of the budget goes to new storm grates which would yield (for an example) 40 grate replacements a year if done with road reconstruction or 20 grates as stand alone projects.
You can see by my example why focusing on the more economical or the "low hanging fruit" is desirable but what do we do when the low hanging fruit runs in short supply and we have years with no storm grates being replaced? That is the problem and I think it has ramifications beyond just storm grates and crops up anywhere "matter of practice" for bike/ped is applicable.
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BETH L. WINELAND v. CITY OF CLEVELAND, TENNESSEE ET AL. <a href="http://www.tba2.org/tba_files/TCA/2011/winelandb_072811.pdf">http://www.tba2.org/tba_files/TCA/2011/winelandb_072811.pdf</a>;
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