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A SERIES OF ERRORS

by Ray Thomas
Ray Thomas is a Portland bike lawyer.

There is an old saying “we learn from our mistakes;” occurrences filled with missteps provide us with good lessons from time to time. This month’s column focuses on a series of events that seemed to escalate in the wrong direction. Usually, I only write about actual occurrences long after the dust has settled, however, the events below just occurred in early January of this year during a winter club ride in North Portland.

The Collision
A dozen riders were out for a morning ride with a local bicycle club. It was a group ride and everyone was riding bunched up in a busy part of town heading toward a highway portion of the route. While descending a hill with a stop sign at the bottom, two riders rode side by side and talked. One was an experienced high mileage local rider (I’ll refer to him as the “highmiler”) and the other was an older man who was just starting in club rides. The highmiler, who had taken the street side position beside the older rider, noticed in his mirror that a pickup truck was following them very closely. Since the hill ended in a stop sign and required brakes for the descent, the highmiler decided to maintain his position next to the older rider and they continued their conversation, ignoring the pickup truck behind them.

Suddenly the pickup truck gained speed and attempted to pass the two riders without moving over the center line. As the pickup truck passed the highmiler, he felt a sharp pain from an impact with his left elbow; the pickup truck had hit him with its passenger side mirror as it passed! Flushed with anger and adrenalin, he yelled out to the riders ahead that he had been hit as the truck slowed, stopped, and then turned at the stop sign below them.

A Legal Analysis of The Collision
While many bicycle riders have had similar experiences to the facts in the story above, most law enforcement officers investigating this accident would probably place the majority of the blame on the bicyclist. There are two reasons for this. One, most motorists have had all too frequent experiences (from their point of view) of being held back by a bicyclist who refuses to yield enough of the lane to allow the motorist to safely pass without crossing over the centerline. As bicyclists we also have considerable experience at being at the other end of this relationship, as we try to pick a safe path for ourselves in the roadway while trying to avoid surface hazards like glass or gravel on the roadway. Bicyclists know that they have a right to the road, or at least a portion of it, but how much of the roadway is frequently a question of dispute.

The second reason an investigating police officer would probably blame the bicyclist is that the road usage law prohibits bicyclists from riding “two up” or “two abreast,” when motorists are slowed down. Oregon Revised Statute (ORS) 814.430 provides as follows:

814.430. Improper use of lanes; exceptions; penalty
(1) A person commits the offense of improper use of lanes by a bicycle if the person is operating a bicycle on a roadway at less than the normal speed of traffic using the roadway at that time and place under the existing conditions and the person does not ride as close as practicable to the right curb or edge of the roadway.

(2) A person is not in violation of the offense under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:

(a) When overtaking and passing another bicycle or vehicle that is proceeding in the same direction.

(b) When preparing to execute a left turn.

(c) When reasonably necessary to avoid hazardous conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or other conditions that make continued operation along the right curb or edge unsafe or to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side. Nothing in this paragraph excuses the operator of a bicycle from the requirements under > ORS 811.425 or from the penalties for failure to comply with those requirements.

(d) When operating within a city as near as practicable to the left curb or edge of a roadway that is designated to allow traffic to move in only one direction along the roadway. A bicycle that is operated under this paragraph is subject to the same requirements and exceptions when operating along the left curb or edge as are applicable when a bicycle is operating along the right curb or edge of the roadway.

(e) When operating a bicycle alongside not more than one other bicycle as long as the bicycles are both being operated within a single lane and in a manner that does not impede the normal and reasonable movement of traffic.

(f) When operating on a bicycle lane or bicycle path.

(3) The offense described in this section, improper use of lanes by a bicycle, is a Class D traffic infraction.”

While wordy, this law is the bicyclists’ Bill of Rights to the roadway. Under the law, the two riders were obligated to ride single file as far to the right as “practicable” taking into account surface hazards, traffic conditions, and the width of the roadway so that the impatient pickup driver would have a reasonable opportunity to pass. Under the law, the bicyclist does not have the right to conclude that the pickup driver should be slowing down for the stop sign at the bottom of the hill instead of passing, so long as the pickup driver can pass the bicyclist without violating the city street speed limit of 25 m.p.h.

One might think that the motorist should have stopped after the “collision” with the bicyclist. However, it has been my experience that motorists are usually oblivious to these minor types of impacts. Sometimes the motorists think that the bicycle rider has hit the vehicle as they passed. It is the law that a vehicle driver must stop and exchange information and render assistance in a property damage or injury collision. If the motorist reasonably fails to realize that a collision has occurred, there is no obligation to stop.

The Saga Continues
When the other riders heard the highmiler shout “he hit me!” the group gave chase to the pickup truck, catching it as it proceeded slowly through the residential neighborhood. The highmiler rode up a curb cut onto the sidewalk and caught up to the passenger side of the pickup truck, shouting for the pickup driver to pull over. Inside the vehicle he saw an angry man who glared back at him, with a female passenger who attempted to ignore his presence. As the pickup truck approached another stop sign, the bicyclist raced ahead on the sidewalk, dismounted, and leaned his bicycle against a tree. Jumping out into the roadway the bicyclist attempted to pull the pickup truck over to give the driver a piece of his mind. The pickup truck stopped briefly at the stop sign and then made a sharp right turn, striking the highmiler with the side of the pickup truck, knocking him down, and cracking several of his ribs. This time the impact was pretty loud, the angry motorist stopped his pickup truck, stormed over to the bicyclist who at this point was sitting injured on the curb, and began angrily berating any bicycle riders who would listen. One of the club members called 911 on a cell phone and within minutes a police car arrived at the scene.
The investigating officer listened to everybody’s story after calling for an ambulance for the injured bicyclist, and then issued a citation to the bicyclist for Unsafe Operation of a Bicycle on a Sidewalk. His decision was met by astonishment on the part of the bicyclists, and satisfaction on the part of the angry driver of the pickup truck. As the ambulance, police car, and pickup truck drove away from the scene the knot of disappointed bicyclists resumed a shortened version of their ride, shaken by the incident.

Legal Analysis
While one might question the wisdom of a bicyclist chasing down and then confronting a motorist after a minor collision, adrenaline combined with righteous indignation has propelled victims to do far riskier things. In this instance, the motorist was following too closely and passing in an unsafe manner by failing to give the bicyclists a wide berth. Why did the police officer fail to focus on these factors? In my experience, this is a pretty typical scenario in that law enforcement usually takes a motorist’s and not a bicyclist’s perspective in analyzing traffic mishaps. In ticketing the bicyclist, the police officer clearly sided with the motorist. However, the police officer made an incorrect charging decision because the bicyclist never violated the statute. ORS 814.410 provides as follows:

“814.410. Unsafe operation of bicycle on sidewalk; penalty.
(1) A person commits the offense of unsafe operation of a bicycle on a sidewalk if the person does any of the following:

(a) Operates the bicycle so as to suddenly leave a curb or other place of safety and move into the path of a vehicle that is so close as to constitute an immediate hazard.

(b) Operates a bicycle upon a sidewalk and does not give an audible warning before overtaking and passing a pedestrian and does not yield the right of way to all pedestrians on the sidewalk.

(c) Operates a bicycle on a sidewalk in a careless manner that endangers or would be likely to endanger any person or property.

(d) Operates the bicycle at a speed greater than an ordinary walk when approaching or entering a crosswalk, approaching or crossing a driveway or crossing a curb cut or pedestrian ramp and a motor vehicle is approaching the crosswalk, driveway, curb cut or pedestrian ramp. This paragraph does not require reduced speeds for bicycles either:

(A) At places on sidewalks or other pedestrian ways other than places where the path for pedestrians or bicycle traffic approaches or crosses that for motor vehicle traffic; or

(B) When motor vehicles are not present.

(e) Operates an electric assisted bicycle on a sidewalk.

(2) Except as otherwise specifically provided by law, a bicyclist on a sidewalk or in a crosswalk has the same rights and duties as a pedestrian on a sidewalk or in a crosswalk.

(3) The offense described in this section, unsafe operation of a bicycle on a sidewalk, is a Class D traffic infraction.”

While the statute is specific in making a number of restrictions upon bicycle use, the only provision that could possibly be violated by the highmiler in chasing the motorist is ORS 814.410(1)(c) which prohibits operation of a bicycle on a sidewalk in a “careless manner” that endangers persons or property. However, in the accident example, the bicyclist was being very careful while he raced ahead of the motorist on the sidewalk and the bicyclist never endangered any pedestrian or property. Further, while ORS 814.410(1)(a) prohibits suddenly leaving the sidewalk and moving into the path of a vehicle it probably requires that the person do it on the bicycle, instead of as a pedestrian which is what the bicycle rider did in this case. (Readers should note that there is a law prohibiting pedestrians from suddenly leaving a place of safety and moving into the roadway in front of a motor vehicle, but this law was not used by the police officer in citing the bicyclist.)

Finally, ORS 814.410(d) only requires that a bicyclist operate at a walking speed when a vehicle is approaching so close as to constitute an “immediate hazard.” In our accident example, the motorist was never on a collision path with the bicyclist until the rider became a pedestrian by running out into the roadway.
Our law office is helping the injured rider defend the traffic citation which looks like it was issued incorrectly. However, most lawyers would probably conclude that the bicyclist’s injury claim for broken ribs is torpedoed by the chase and attempted apprehension in the absence of any proof the pickup driver knew about the first impact or tried to hit the rider.

Conclusion
Sometimes near disasters that befall us can make good lessons. The incident related in this column is the type of confrontation that occurs all too frequently over rights to the road. Experienced riders are used to encountering antibicycle bias by drivers and police. As bicycle riders, our size and numbers combine to make us a minority shareholder in ownership of the roadway; it is important that we know our legal rights in order to safeguard our legal presence to our fair share of the road.

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