We get told all the time about collisions where a bike rider is being blamed for a right hook collision and the driver’s insurance adjuster says that because the rider is not in a bike lane the rider is at fault because they were passing on the right. Of course the situation is improved for the bike rider if they are in a bike lane because right turning motorists must yield the right of way to bicyclists in a bike lane per ORS 811.060. But frequently bicyclists are not clear on what a bike lane is, such as on a “bikeway” marked with the bicycle symbol and a sharrow. A recent exchange with an injured rider provides a good example. We got an email from Sean:
“Hello I was recently struck by a car as I was riding along the right side of a Bike Corridor in Portland, the ones with the bike on the ground. The car turned right to park without signaling and hit me as I passed him. The insurance company is trying to blame me for “overtaking the car” but from the little research I did it seems that the big white bike marking on the ground is indication of a bike lane and thus should make cars turning right yield to bikes? Any help with this would be great!”
I replied: “Sean, if you were in a bike lane (Were you? What street was it?) then you are right you were not “passing on the right” you were in a separate lane. However, if it was a street with a Bike Sharrow on it (no 8” wide white stripe) then that is not a bike lane. SO let me know where it was and we can go from there.”
He then stated: “Yeah it was one of those roads with the white bike painted in the middle of the road but without a white line on the side, that’s what makes this seem dangerous because people (like me) might confuse the bike as being a bike lane. I know that I am not alone with riding on the right and having cars pass you all the time when there is no white line on the road. The insurance company admits that it is illegal to pass a bike that is riding on the right.. But I see it happen a thousand times a day. I guess these Bike Corridors create a false sense of protection in situations like this and is very confusing.”
Once I found out it was not a bike lane I felt he still had grounds to make a claim:
“Sean, just because it is not a bike lane does not mean you are at fault. Passing on the right is not illegal per ORS 811.415(2)(c)(“Passing on the right is permitted if the overtaking vehicle is a bicycle that may safely make the passage under the existing conditions.”). I would say that the driver is still 100% at fault for not signaling for 100’ before the turn as required by ORS 811.335(1)(b). If the driver had signaled you would not have passed on the right. Check out the statutes and cite them to the insurance adjuster. Make sense?”
I felt like he should argue that the driver failed to signal the move into the parking space on a street with sharrows where it should be anticipated that there will be overtaking bicycle traffic. It is my view that when a car slows or stops without a signal to indicate that a turning maneuver is about to take place that an overtaking bicyclist is reasonable in concluding that they may continue on to the right side of the car. Of course if the car signals the intention to move right into a parking space that is different situation, but an overtaking bicyclist has a right to expect a driver to follow the law and signal AND check their mirrors and do a shoulder check BEFORE entering a parking space, particularly while driving on an urban Bike Corridor. While Sean may well have some comparative negligence to deal with here, it should be no more than 10% and should not bar his recovery of his damages, minus the 10% that arguably he contributed to the cause of the collision by guessing wrong about the driver’s intentions.
In this case Sean was appreciative of the legal advice and said: “Thanks so much! It’s good to know there are people like you to reach out to!!”.