Cities must make roads safe for bicycles, appeals court rules

SEATTLE – A Washington state appeals court has ruled cities must provide safe roadways for all traffic, including bicycles.

The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport, so cities must maintain roads for safe bicycle travel.

The ruling this week came in a lawsuit filed by Pamela O’Neill, who was seriously injured while commuting home from work in Port Orchard. She was thrown from her bicycle when she hit a patch of road that had gaps in the concrete.

O’Neill sued the city, claiming it was negligent in maintaining Sidney Avenue in a way that provided safe travel for bicycles. But a Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”

“Bicycles are an integral part of Washington’s statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.

Patrick McMahon, a Wenatchee lawyer representing the City of Port Orchard, did not immediately respond to a message seeking comment on the ruling.

O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said.

As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, O’Neill’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.

A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.

To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”

The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.

The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.

“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”