While pedestrians and bicycles sometimes share a rather wary alliance, their unity comes from a shared vulnerability to the speed and mass associated with motorized travel. And bicycles become the lawful equivalent of the pedestrian relative to motor vehicles in the eyes of the law whenever a rider dismounts or rides on a sidewalk.
Perhaps nothing better illustrates the push and pull between pedestrian and motorized vehicle rights than the ebb and flow of pedestrian rights in crosswalks to have the right of way for safe passage. As car usage increased and highways became freeways, pedestrian corridors were obliterated in neighborhoods. As modern culture placed increasing numbers of humans into motorized vehicles, multi-lane roadways stretched the distance pedestrians required for crossing safely. And while pedestrian death rates became lower each year, the primary cause was fewer people walking. Modernization efforts by the Oregon legislature qualified and eroded the pedestrian right of way in crosswalks until the end of the twentieth century, when proponents of non-motorized travel promoted making way for human powered roadway users in an Oregon landscape that included livability, fitness, environmental and fuel-saving themes. This work significantly expanded pedestrian rights and the encouragement of pedestrian use of the roadways.
History of Pedestrian Rights in Oregon
In Plasker v. Fazio, 259 Or 171 (1971) the Oregon Supreme Court noted:
“When Oregon in 1931 enacted the Uniform Act Regulating Traffic On Highways, it provided in mandatory terms >[t]he driver of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk * * * . The only qualification was contained in the provision that the right of way did not relieve the pedestrian of the duty to exercise due care.”
In what the court stated was a “drastic” qualification of the pedestrian’s right of way, the 1941 Oregon Legislature limited driver duties to yielding the right of way to pedestrians in marked crosswalks on the half of the roadway upon which the vehicle was traveling or was approaching so closely from the opposite half of the roadway as to be a danger, which in effect halved the area of right of way for the pedestrian in a crosswalk. The other change imposed a mandatory duty on the part of pedestrians not to Aleave the curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.”
The duty of the pedestrian was further revised in 1947 when the Legislature not only rejected an effort to restore the pedestrian’s curb-to-curb right of way, but it also added the phrase “or in crossing” to the requirement that the pedestrian not enter the roadway in front of a vehicle. The 1947 law imposed a new level of restriction on pedestrians’ rights because it broke the pedestrian right of way into segments; under the new law a pedestrian was required to wait or turn back if a car was coming even if the coast was clear when they left the curb to cross the road, if the car came so close as to be a hazard Ain crossing”.
In 1971, the Oregon Supreme Court broke with other more pedestrian-protective jurisdictions in interpreting what “other places of safety” actually meant in deciding what area a pedestrian was not supposed to leave when a car was approaching. Other states interpreted the same language to mean areas off of the side of the road or at the curb, but the Oregon court concluded it meant the middle of the road. This further eroded the pedestrian right of way and left pedestrians without any legal protection when cars approached while they were lawfully crossing the street. Pedestrians were now required to re-evaluate their decision to cross the roadway before crossing to the other side in order to determine whether traffic was so close that it would be Aimpossible for the driver to yield.”
In 1983 the duty of the driver was changed by the legislature from being required to stop up until the point when it was “impossible for the driver to yield” to the present requirement in OR 814.040 to yield to the pedestrian when the vehicle is “so close as to constitute an immediate hazard”. The change from “impossible to yield” to “an immediate hazard” was a further undercutting of the right of way because the question of what is so close as to constitute an “immediate hazard” distance is capable of wide interpretation and provides drivers with the excuse that they did not think they could stop in time so they tried to drive around the pedestrian without stopping.
Some jurisdictions also have rules requiring all roadway crossing must be at crosswalks, which may create a legal trap for the unwary as few municipal ordinances are published widely or included in any visible signage. For example, in Portland pedestrians are prohibited from crossing the roadway within 150 feet of a crosswalk. These laws are used against pedestrians after an accident to shift comparative negligence as a matter of law (negligence per se) to a pedestrian injured while crossing a roadway within 150 feet of an available crosswalk.
Current laws on rights of way in crosswalks
Beginning in the mid-1970’s attitudes toward non-motorized roadway use (including bicycles) began to change. Urban planners began insisting that sidewalks and crosswalks be included in subdivisions, and bike paths and other innovations were looked upon as improvements over congested highways and a partial solution to a future that would include regular gas shortages and steep price increases.
As roads became more complex and corridors for bicycling and walking were recognized, a desirable definition of “crosswalk” needed to include both developed and undeveloped areas, marked and unmarked crosswalks. The current Oregon definition of crosswalk has served its role well and has not changed since its present structure was created in 1975:
“Crosswalk” means any portion of a roadway at an intersection or elsewhere that is distinctly indicated for pedestrian crossing by lines or other markings on the surface of the roadway that conform in design to the standards established for crosswalks under ORS 810.200. Whenever marked crosswalks have been indicated, such crosswalks and no other shall be deemed lawful across such roadway at that intersection. Where no marked crosswalk exists, a crosswalk is that portion of the roadway described in the following:
(1) Where sidewalks, shoulders or a combination thereof exists, a crosswalk is the portion of a roadway at an intersection, not more than 20 feet in width as measured from the prolongation of the lateral line of the roadway toward the prolongation of the adjacent property line, that is included within:
(a) The connections of the lateral lines of the sidewalks, shoulders or a combination thereof on opposite sides of the street or highway measured from the curbs or, in the absence of curbs, from the edges of the traveled roadway; or
(b) The prolongation of the lateral lines of a sidewalk, shoulder or both, to the sidewalk or shoulder on the opposite side of the street, if the prolongation would meet such sidewalk or shoulder.
(2) If there is neither sidewalk nor shoulder, a crosswalk is the portion of the roadway at an intersection, measuring not less than six feet in width, that would be included within the prolongation of the lateral lines of the sidewalk, shoulder or both on the opposite side of the street or highway if there were a sidewalk.
ORS 801.220. The statute language is technical, but it provides that an unmarked crosswalk exists where one would expect to find one between intersecting shoulders or sidewalks. In irregularly shaped intersections, such as where sidewalks are of different widths, crosswalks have needed to be defined as trapezoidal in shape, but the statute still requires that the crosswalk be no less than six or more than 20 feet in width.
These developments have provided the backdrop for Oregon’s 2005 legislature which substantially expanded the rights of pedestrians in crosswalks. What began as a simple legislative clarification that bike lanes should not be considered as additional lanes that would reduce pedestrian right of way evolved into an overhaul of Oregon pedestrian rights that reestablished the pedestrian right of way in a crosswalk across an entire two-lane roadway where there is no traffic control device. But this change imposed a limit on the pedestrian right of way at intersections with traffic lights to the lane of pedestrian occupancy and six additional feet (so as to facilitate efficient movement of traffic in congested urban environments such as Portland’s downtown.)
The 2005 law for pedestrians in crosswalks is contained in OR 811.028
“Failure to stop and remain stopped for pedestrian; penalty”:
(1) The driver of a vehicle commits the offense of failure to stop and remain stopped for a pedestrian if the driver does not stop and remain stopped for a pedestrian when the pedestrian is:
(a) Proceeding in accordance with a traffic control device as provided under ORS 814.010 or crossing the roadway in a crosswalk, as defined in ORS 801.220; and
(b) In any of the following locations:
(A) In the lane in which the driver’s vehicle is traveling;
(B) In a lane adjacent to the lane in which the driver’s vehicle is traveling;
(C) In the lane into which the driver’s vehicle is turning;
(D) In a lane adjacent to the lane into which the driver’s vehicle is turning, if the driver is making a turn at an intersection that does not have a traffic control device under which a pedestrian may proceed as provided under ORS 814.010; or
(E) Less than six feet from the lane into which the driver’s vehicle is turning, if the driver is making a turn at an intersection that has a traffic control device under which a pedestrian may proceed as provided under ORS 814.010.
(2) For the purpose of this section, a bicycle lane or the part of a roadway where a vehicle stops, stands or parks that is adjacent to a lane of travel is considered to be part of that adjacent lane of travel.
(3) This section does not require a driver to stop and remain stopped for a pedestrian under any of the following circumstances:
(a) Upon a roadway with a safety island, if the driver is proceeding along the half of the roadway on the far side of the safety island from the pedestrian; or
(b) Where a pedestrian tunnel or overhead crossing has been provided at or near a crosswalk.
(4) The offense described in this section, failure to stop and remain stopped for a pedestrian, is a Class B traffic violation.
The current statute may contain a legislative punctuation mistake that greatly expands pedestrian rights, and may go even further than the legislature intended. The literal meaning of the statute as presently punctuated seems to provide that even if a pedestrian is crossing unlawfully against a “don’t walk” signal in a crosswalk, all approaching drivers must still stop and remain stopped or violate this statute. While ORS 814.020 (“Failure to Obey Traffic Control Device”) prohibits jay-walking, the current law nevertheless appears to require that drivers must stop and remain stopped while pedestrians in crosswalks cross against the “don’t walk” signal for the lane plus six additional feet. It may be argued that this a fair result anyway, since drivers should have to stop for humans even if they are illegally occupying the roadway in front of the vehicle.
Oregon law in 2007 provides the broadest protection in seventy years (since 1941) to non-motorized users of the state’s roadways and is a reflection of changing attitudes. While pedestrians outside of crosswalks must still yield the right of way to motorists, Oregon law has provided a flexible and workable definition of “crosswalk” and expanded the right of way of pedestrians in crosswalks to reform earlier restrictions on the lawful right of way to include both sides of a two-lane road or the lane occupied by the pedestrian and six feet where the pedestrian is crossing with a traffic light.