When motorists turn left across a bicyclist’s path of travel they frequently fail to recognize the rider’s silhouette as that of a vehicle. Maybe they dismiss us as oddly shaped street signs, or tall fire hydrants… Whatever. We know that we need to dress in conspicuous clothing to increase our visibility and ride deliberately to make our presence known. But sometimes we are just in the wrong place at the wrong time. If a bicyclist does get bumped by a car it is certain that the driver or their insurance company will focus on every possible mistake committed by the bike rider. Since bicyclists are usually riding at the right edge of the road it is possible that the injured rider will be blamed for “passing on the right”.
Last month a well-known rider and racer was hit by a motorist making a left turn. He was familiar with the route. It was his regular commute into town from a rural area, 23 miles in one direction. He had ridden through the intersection hundreds of times in the past and was doing nothing unusual. His practice is to ride along a major arterial road on the shoulder side of the fog line-far enough off of the road to be out of the way of traffic, but also far enough away from the edge of the pavement to be visible and stay out of the debris on the shoulder surface.
Cars in the slow and fast lanes had stopped for a traffic light. As he approached the light he maintained his usual position, and as his bicycle passed to the right of the stopped cars a Ford Aerostar van coming in the opposite direction made a left turn in between the stopped cars. Apparently the van driver failed to see him passing alongside the right side of the stopped cars and hit him. He was thrown off his bike and sustained multiple facial fractures, none of which were life threatening. Nevertheless he has been unable to eat solid food for a month because his jaws have been wired closed, and he will need a considerable amount of expensive future dental work.
Whose fault was this accident? The answer seems clear that the driver failed to yield to the bicyclist. However, bicyclists need to be aware of an ugly hazard contained in the Oregon Vehicle Code that can cause us real problems if we get hit. In the accident scenario the bicyclist was riding to the right of the traffic lanes in the no-man’s land on the shoulder side of the fog line. In this case the paved area to the right of the fog line was about 10 feet wide; it contained plenty of room for the bicyclist. Yet the literal text of the Oregon Vehicle Code prohibits “passing on the right”, and arguably, this rider was passing the cars on the right side.
Oregon Revised Statute (ORS to those in the know) 811.415 covers three scenarios:
1. It is illegal to pass on the right if it means leaving the paved surface of the roadway;
2. However it is legal to pass on the right if the vehicle passed is turning left;
3. And it is also legal to pass on the right if the passed vehicle is in the left lane of “two or more clearly marked lanes”.
The statute clearly does not address the usual scenario where bikes and cars are “sharing” the roadway. Bicyclists are bound to comply with the law that requires us to ride as “far to the right as is practicable”, ORS 814.430. In slow traffic we may take a lane so long as it doesn’t cause drivers (moving at the speed limit) to slow down, but at higher speeds we are supposed to move over to let faster vehicles go by us. The passing law says nothing about giving us the option of passing on the right when the cars (that were passing us only moments ago) have to slow down to stop for a traffic signal.
In the case of the injured commuter, he was maintaining his position on the shoulder side of the fog line in an area that was almost 10 feet wide. Cars were passing him constantly, except at traffic lights or when the cars were jammed up; then he would pass them. It seems fair that he should be able to pass alongside the stopped cars just sitting at a standstill in their lanes; after all, if he had taken a lane the cars would have been beeping at him to move over out of their way!
Nevertheless, the literal language of the passing statute, ORS 811.415, seems to make it illegal to perform the same passing maneuver that bicyclists all over the world perform to get through slow moving traffic. When I speak to bicyclists in the Bicycle Transportation Alliance (BTA) Legal Clinics about this law I tell them to be especially careful because if an accident occurs someone might try to use the statute against them. In the last session of the Oregon Legislature the BTA introduced a statute to create an exception for bicycles, but the change went nowhere because the legislators were not interested in reforming the law to take bicyclists into account. Let us hope the BTA is successful in obtaining sufficient funding before the 1999 legislative session begins to hire a part time lobbyist so that we have a better chance of acquainting legislators with our perspective. In the meantime riders must take extra caution whenever they pass cars on the right side.
Whether you are passing between a line of slow or stopped traffic and the curb lane, a line of parked cars, or along the fog line on a highway, be aware that if someone bumps you they may claim that you were partly to blame. But remember, even if you are found to be in violation of the statute, it does not necessarily mean that you will “lose” your case. Many accidents are the result of several errors, and just because you may be found by a jury to have committed one does not mean that you don’t have a case. Instead, the judge will instruct the jury that they are to assign percentages of fault to the parties. So long as you are not more responsible (51% or more) than the driver for the accident you will still “win”, but your damages will be reduced by the percentage of your own negligence.
Unfortunately, Oregon’s appellate courts have not considered the question of whether or not ORS 811.415 prohibits bicyclists from ever passing on the right. There are a number of good arguments that the statute does not make sense when applied to bicyclists. Until we know better what the courts will do with this question we should approach passing on the right just as we would any other hazard: BE AWARE, TAKE CARE.
Proceeding with extra caution will make us more likely to recognize those situations where a left turning motorist may fail to see us. Scanning the area ahead for driveways and cross streets will alert us to the possibility that a motorist will fail to see us and make a quick turn across our path of travel. We can also dress in bright colored clothing to make ourselves more conspicuous. In the final analysis, every time we pass other vehicles on the right side we have to be aware that, if we get hit, someone may claim that WE were breaking the law, even though we were the victims of the driver’s failure to pay attention.