Bicycle & Skate Law
Oregon Statute Makes Dangerous
Storm Drains Illegal
by Ray Thomas
Ray Thomas is a Portland bike lawyer.
In years past, storm drains have presented a significant hazard
for bicyclists. Many drains were designed with metal spaces in the
direction of travel that were wide enough to “eat” bicycle
wheels. Newer designs have a crisscross pattern, eliminating the
potential for getting a tire to wedged into the structure, launching
the unwary rider over the handlebars.
The Oregon Revised Statutes contain a legal prohibition against
dangerous storm grates that can be used by riders to nudge maintenance
departments to install or redesign dangerous storm drains. Oregon
Revised Statutes (ORS) 810.150 requires that storm drains be designed
so that bicycles may pass safely:
“810.150. Drain construction; compliance with bicycle safety
requirements; guidelines.
(1) Street drains, sewer drains, storm drains and other similar
openings in a roadbed over which traffic must pass that are in
any portion of a public way, highway, road, street, footpath or
bicycle trail that is available for use by bicycle traffic shall
be designed and installed, including any modification of existing
drains, with grates or covers so that bicycle traffic may pass
over the drains safely and without obstruction or interference.
(2) The Department of Transportation shall adopt construction
guidelines for the design of public ways in accordance with this
section. Limitations on the applicability of the guidelines are
established under ORS 801.030.”
Unfortunately, the statute is modified by ORS 801.030 which “grandfathers”
in “drains installed prior to 1975." This means that
old style drains may escape the reach of the statute as a matter
of law. However, it is almost impossible to tell when a drain has
been installed so, for advocacy purposes, it is probably best to
assume that the drain was installed after 1975, and is, therefore,
subject to the prohibition on dangerous installations.
Note also that the section applies not only to public ways that
are part of a “highway, road or street” but also to
a “foot path or bicycle trail.” This means that if the
dangerous grate is in a location where bicycles may lawfully pass,
that it must be designed to be safe.
Contemporary storm drains are designed to conform with design requirements
that take bicycles into account. However, there are still old drains
in existence which, like unexploded military ordinance, create a
potential hazard for anyone passing over them. In addition, even
properly designed storm drains can pose a hazard if the drain surface
is installed below the pavement surface of the road.
One of the techniques used by street departments to repair a crumbling
roadway is to install a new asphalt surface. A road surfacing machine
removes the crumbling surface section of the old road and then new
blacktop is installed. Sometimes this process occurs over and over
again so that the surface of the roadway rises slightly with each
application. However, when this technique is used, the storm drains
located at the edge of the roadway must be raised to be flush with
the new surface of the roadway. If the storm drain is left recessed
at the old roadway level, it creates a hazard for bicyclists proceeding
along the edge of the road. Storm drains and manhole covers in the
main traveled portion of the roadway are typically raised with some
sort of collar device to avoid a traffic hazard; but some storm
drains at the edge of the roadway are not given the same careful
treatment. It is important that roadways be designed, and upgraded,
to take both motorized and non-motorized users into account, and
the storm drain statute mandates that all drains in any portion
of the roadway over which bicyclists may legally travel must be
safe.
What To Do To Report A Violation
If you know of a storm drain that presents a potential hazard in
violation of the statute, call or write a letter to your local road
maintenance department. Sometimes merely advising the maintenance
department of their civic responsibility or the requirements of
the statute may not be enough to make things happen. In these times
fear of “liability” or a “potential lawsuit”
is often used as an excuse for denying access to users of public
and private facilities (“I’m sorry but we cannot let
you go in there because if someone got hurt then we might get sued.”).
You can use the potential lawsuit phobia to actually make something
good happen by letting maintenance departments that if someone was
hurt by a dangerous storm drain a lawyer could “cause trouble”
for the city or county and then the taxpayers many have to pay for
an injury. Make sure you send a copy of the letter to County Counsel
or City Attorney’s Office to provide additional notice of
the dangerous condition.
Regular commuters along stretches of road containing dangerous
storm drains have probably learned over time to avoid hazards on
their ride. However, the riders who are most likely going to be
hurt are more occasional users. It is important for the benefit
of other riders who may be riding over unfamiliar terrain or at
night that regular riders of particular routes advocate for safe
conditions. A sample letter advising of a drain problem is copied
below. Note that the letter attempts to discuss the importance of
the thoroughfare for bicyclists. The tone should not be threatening
or whiny, but authoritative.
“Washington County Road
Operations & Maintenance
1400 SW Walnut Street
Hillsboro, Oregon 97123
Re: Storm Grate In Front of St. Vincent Hospital
Dear Sir/Madam:
This letter is to advise you and to provide notice of a dangerous
condition existing which violates the Oregon Revised Statutes.
As you know, SW Barnes Road is a major bicycle commuter thoroughfare
for persons heading east and west alongside the Sunset Highway.
Bicycle traffic in front of St. Vincent Hospital is fairly heavy
and the road is quite narrow with a small paved shoulder. Because
of the proximity to the Catlin Gabel School, St. Vincent Hospital,
the Sunset Transit Center, and The Oregon College of Arts &
Crafts, the roadway heavily used by bicyclists.
Unfortunately, there are at least two storm drains on the north
side of SW Barnes Road directly in front of St. Vincent Hospital
that appear to be recessed below the level of the asphalt by as
much as one and a half to two inches. These storm drains are a
hazard to bicyclists and are in violation of the law.
ORS 810.150 requires that grates and drains be engineered such
that bicycles can pass safely over them. These storm drains clearly
do not meet this test and should be re-engineered to bring the
drain up to the level of the roadway surface.
If a bicyclist were to be injured as a result of colliding with
one of these storm drains, it would likely result in a significant
claim against the county.
Please provide me with your position in regard to this problem
at your earliest opportunity. For your information, I am providing
a copy of this letter to the office of the Washington County Counsel
for their review.”
Agencies in charge of maintenance for areas with dangerous hazards
need to hear from bicyclists. Conditions are allowed to exist on
roadway shoulders that would never be tolerated on the main section
of the roadway. Often these dangers exist because maintenance departments
fail to realize that roadway shoulders are heavily used by bicyclists.
While the wheel you save may not be your own, it is very satisfying
to see roadway improvements resulting from your good efforts.
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