AB 738, introduced by Assembly Member Diane Harkey, is a proposed amendment to the Government and Vehicle Codes that would let city agencies and their elected officials avoid any responsibility for an injury they cause to a bicyclist on a roadway if that roadway has a bike lane. This immunity from accountability that Harkin proposes not only eliminates the opportunity for victims to see some compensation, it also eliminates the biggest incentive for local agencies to apply reasonable safety standards when they design bike facilities.

The law grants the immunity regardless of whether the bicyclist was in the bike lane or lawfully outside the bike lane, whether a dangerous condition existed on the roadway or bike lane, or if either was improperly designed.

For example, if a city mayor or treasurer were to hit a bicyclist on a roadway where a bike lane has been provided, they or their public-entity employer would be immune from liability regarding injury sustained by the bicyclist, even if the bicycle rider hit a hazard improperly left in the bike lane by city workers or if the bike lane were designed dangerously. Additionally, in the above example, if the bicyclist had lawfully left the bike lane to avoid debris or a hazardous condition (Vehicle Code § 21208(a)(3)) when hit, no liability would be imposed on the city or its elected official. Existing law already provides a degree of governmental tort immunity in Government Code § 815 et. seq. This bill would expand those immunities.

By introducing this legislation the author intends to prevent lawsuits against cities, and their elected officials, regarding roadways where a bike lane has been provided by that city for the purpose of protecting its citizens. Lawsuits involving a public roadway often include a named public entity or elected official as a defendant due to the potential dangerous condition of the roadway, or failure to properly design and build the roadway. She claims that this bill is meant to serve as an incentive for cities to expand or increase their bike lanes. However, by removing liability city officials could design dangerous bike facilities to pretend they’re helping bicycling without any legal incentive to do better.

Because elected officials are considered employees of the public entities under which the serve, the bill would conflict with or negate Government Code § 815.2(a). This section states, “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

The proposed numbering (§ 830.10) of this legislation is misplaced. The language of the bill would be contained in the section of the Government Code regarding public entity or public employee liability (section 814 et. seq.) under “Dangerous Conditions of Public Property.” However this bill does not address a situation where a dangerous condition exists on the roadway or bike lane and in fact causes injury. Instead the bill provides immunity for a public entity or its elected official in such circumstances. The bill only states a “temporary, unsafe condition” of a roadway or bike lane must be addressed in a “timely fashion.”

The bill would also conflict with or negate the requirements of Streets and Highway Code § 890.6, which establish minimum safety design criteria for the planning and construction of bikeways and roadways where bicycle travel is permitted. If a public entity or employee cannot be held liable, under any circumstances, if a bicyclist is injured on a roadway where a bike lane has been provided, there would be less adherence to the minimum safety design criteria for bike lanes.

Analysis Prepared by: Heath Langle, Esq., legal volunteer for CalBike

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