Pedestrian Rights On Roadways


 

Pedestrians, bicycles, and motor vehicles at various points all pass over roadways, sidewalks, multi use paths, bicycle lanes, and roadway shoulders. The purpose of this article is to provide a basic primer on the rights of pedestrians in each area.

SIDEWALKS

On Sidewalks, Pedestrians Rule

The law of sidewalks is easy to remember: pedestrians have the right of way and all vehicles must yield to them (bicycles are also vehicles). Bicyclists must provide an audible warning when passing pedestrians and vehicles must yield to pedestrians when crossing over a sidewalk or when a pedestrian is in a marked or un-marked crosswalk. Vehicles are required by law to stop before crossing over a sidewalk from a driveway or parking garage and to stop when other vehicles have already stopped to allow a pedestrian to proceed in a crosswalk.

The definition of a sidewalk is much broader than the traditional image of a paved walkway. “Sidewalk”, as defined in the Oregon statutes, includes unpaved as well as paved areas. ORS 801.484 defines sidewalk as:
“Sidewalk” means the area determined as follows:

  1. On the side of a highway which has a shoulder, a sidewalk is that portion of the highway between the outside lateral line of the shoulder and the adjacent property line capable of being used by a pedestrian.
  2. On the side of a highway which has no shoulder, a sidewalk is that portion of the highway between the lateral line of the roadway and the adjacent property line capable of being used by a pedestrian.
    The statute defines “sidewalk” in a quite literal fashion: a place where someone can “walk” to the “side” of the road.

ROADWAY SHOULDERS

Roadway shoulders are a legal “no man’s land” because there is no right of way granted by Oregon statutes or case law for vehicles or pedestrians. The concepts of “due care” and “reasonable care” govern behavior, but beware as the statutes do require that pedestrians position themselves as far as practical from the roadway edge facing oncoming traffic (or on a divided highway, on the right side of the right shoulder–confusing? You bet.). Thus, the pedestrian walking on the shoulder loses the right of way over vehicles that he or she enjoyed on the sidewalk. And if the pedestrian is not walking in an authorized spot and gets hit, the driver will be able to argue in court that the pedestrian violated the law. Rules for pedestrians on the roadway and shoulders are specified out in ORS 814.070 (1), as follows:

“(1) A pedestrian commits the offense of pedestrian with improper position upon or improperly proceeding along a highway if the pedestrian does any of the following:(a) Takes a position upon or proceeds along and upon the roadway where there is an adjacent usable sidewalk or shoulder.

(b) Does not take a position upon or proceed along and upon the shoulder, as far as practicable from the roadway edge, on a highway that has an adjacent shoulder area on one or both sides.

(c) Except in the case of the divided highway, does not take a position upon or proceed along and upon the left shoulder and as far as practicable from the roadway edge on a two-way highway that has no sidewalk and that does have an adjacent shoulder area. This paragraph does not apply to:

(A) A hitchhiker who takes a position upon or proceeds along and upon the right shoulder so long as the hitchhiker does so facing the vehicles using the adjacent lane of the roadway; or

(B) A member of a group that has adopted that section of highway under the provisions of ORS 366.158 and who is obeying the rules of the Department of Transportation for picking up litter on either side of the roadway.

(d) Does not take a position upon or proceed along and upon the right highway shoulder, as far as practicable from the roadway edge, on a divided highway that has no sidewalk and does have a shoulder area. This paragraph does not apply to a member of a group that has adopted that section of highway under the provisions of ORS 366.158 and who is obeying the rules of the Department of Transportation for picking up litter on either side of the roadway.

(e) Fails to take a position upon or proceed along and upon a highway that has neither sidewalk nor shoulder available, as near as practicable to an outside edge of the roadway, and, if the roadway is a two-way roadway, only on the left side of it.”

ORS 801.480 defines “shoulder” as:

“the portion of the highway, whether paved or unpaved, contiguous to the roadway that is primarily for use by pedestrians, the accommodation of stopped vehicles or emergency use and for lateral support of base and surface courses.”

Since the “shoulder” does not start until the “roadway” ends ( “contiguous to”), it is important to know what is a “roadway”.

ORS 801.450 defines “roadway” as the “portion of the highway that is improved, designed or exclusively used for vehicular travel exclusive of the shoulder.” Thus, where the “roadway” ends, the “shoulder” begins and where the “shoulder” ends, the “sidewalk” begins (if there is one). The “sidewalk” runs all the way to the adjacent property line, which usually means someone’s yard or parking lot in the city, or a fence or field/brush in rural areas.

ROADWAYS

The law is clear that pedestrians must yield the right of way to vehicles upon roadways. ORS 814.040 provides:

“(1) A pedestrian commits the offense of pedestrian failure to yield to a vehicle if the pedestrian does any of the following:(a) Suddenly leaves a curb or other place of safety and moves into the path of a vehicle that is so close as to constitute an immediate hazard.

(b) Fails to yield the right of way to a vehicle upon a roadway when the pedestrian is crossing the roadway at any point other than within a marked crosswalk or an unmarked crosswalk at an intersection.

(c) Except as otherwise provided under the vehicle code, fails to yield the right of way to all vehicles upon the roadway.”

There are exceptions for blind or deaf pedestrians, persons driving livestock across a highway and highway workers, but the general rule is that when pedestrians proceed along an Oregon highway, they must walk along either a usable “sidewalk” or, if on a “shoulder”, as far as practicable from the roadway edge, facing oncoming (as opposed to overtaking) traffic. On a divided highway, pedestrians must walk on the “right highway shoulder as far as practicable from the roadway edge.” ORS 814.070

If there is no sidewalk or shoulder available, then pedestrians must proceed as near as practicable to an outside edge of the roadway and, if the roadway is a two-way roadway, only on the left side of it. ORS 814.070(1)(e). Thus, while bicyclists have a “right to the road” (so long as they ride as far to the right as practicable on a two-way street in traffic), pedestrians do not have a right to the road and must yield to vehicles except when in a crosswalk.

MULTI-USE PATHS

Pedestrian rights on multi-use paths are a little confusing because the term “multi-use path” is a traffic engineering term that is not defined in the Oregon Vehicle Code. However, the Oregon Bicycle and Pedestrian Plan (ODOT, 2d ed., 1995) defines “multi-use path” as:

“a path physically separate from motor vehicle traffic by an open space or barrier and either within a highway right of way or within an independent right of way used by bicyclist, pedestrians, joggers, skaters and other non-motorized travelers.”

It seems pretty clear that the laws of sidewalks apply to pedestrians on multi-use paths. However, legal confusion begins when a multi-use path is also a “bicycle path”. The Oregon Vehicle Code defines “bicycle path” as:

“a public way, not part of a highway, that is designated by officials signs or marking for use by persons riding bicycles, except as otherwise specifically provided by law.” ORS 801.160.

Since, many “bicycle paths” are also “multi-use paths”, and the Oregon Vehicle Code has never been updated to include the concept of multi-use paths, many of Oregon’s waterway promenades, linear trials, and trail corridors are probably “sidewalks”, “multi-use paths” and “bicycle paths” all at the same time, depending upon location relative to a roadway.

PEDESTRIAN USAGE OF BICYCLE LANES

Problems sometimes arise when pedestrians attempt to use bicycle lanes. Oregon Law defines a “bicycle lane” as:

“that part of the highway, adjacent to the roadway designed by official signs or marking for use by persons riding bicycles . . . .” ORS 801.155.

Use conflicts arise when there is no good paved sidewalk and the bicycle lane presents walkers, runners and bladers with an attractive alternative. Because bicycle lanes are a relatively new roadway invention, design specifications and signage are uneven and there are sometimes bicycle lanes on only one side of a street (and bicyclists will sometimes ride facing traffic, to the consternation of many motorists). Oregon law does not specifically prohibit bicycle riding while facing traffic in a bicycle lane, but the Oregon Bicyclist Manual, published by the Oregon Department of Transportation (ODOT, 2006) states: “When riding in a bike lane, you are still required to ride in the same direction as the traffic next to you.” (p. 5) Unfortunately, sometimes roadway design, local custom or the lack of a safe place to cross a busy highway places riders in the position of deciding to ride facing traffic in bicycle lanes. ODOT has attempted to change the law in the Oregon Legislature to include a specific statutory requirement to ride with traffic in bicycle lanes, but has so far not met with success.

The Oregon Vehicle Code does not mention pedestrian use of bicycle lanes. However, because bicycle lanes are considered part of the roadway, the Oregon Vehicle Code places pedestrians in the same position relative to bicycle lanes as if they were in motor vehicle lanes. While this means that pedestrians would probably not be allowed into bicycle lanes (the Vehicle Code requires that pedestrians only proceed along the sidewalk or shoulder), in many rural areas, or where the sidewalk/shoulder is bumpy or unpaved, the bicycle lane presents a desirable path of travel for pedestrians. It is likely that a statutory legal analysis would conclude that bicycle lanes are part of the roadway, not part of the shoulder.

In crowded urban areas directional conflicts arise because bicyclists are taught to ride with traffic in bicycle lanes and pedestrians usually feel safest proceeding facing traffic. Further, some bicyclists feel possessive about bicycle lanes and do not like to share the space with pedestrians. And the same rule that requires pedestrians to yield to vehicles on the roadway presumably also requires pedestrians to yield to bicyclists on bike lanes. Even the Oregon Bicycle and Pedestrian Plan, at p. 52 (ODOT 2d ed., 1995), provides that bike lanes may be used by pedestrians and includes a photograph of an elderly gentleman walking with the traffic on a bicycle lane – an action that would presumably be against the law under existing Oregon statutes.

ODOT Photo shows pedestrian- probably volating the law

Many rural roadways are now incorporating a new design called “rural bikeways”. Paved roadway surfaces are being widened and a fog line painted inside the paved edge of the roadway to give bicyclists sufficient paved distance to the right of the fog line to have maneuvering space while riding on or adjacent to the painted stripe.

ODOT Photos of a rural “bike-way”

In many cases, these rural-shoulder “bikeways” also provide the best surface for pedestrians who wish to walk along the highway. Often, shoulders on rural highways are not mowed or made level enough to provide a safe and secure surface for pedestrians and the paved portion of the roadway is the best practical place to safely walk along the road.

CONCLUSION

Oregon law needs to develop pedestrian rights to encourage people to walk by creating a hospitable legal environment, including places without sidewalks, roadway shoulders and rural “bike-ways”. We should recognize that bicycle lanes are often an inviting arterial for pedestrian use. Future generations of Oregon legislators should provide Oregon with an updated vehicle code that takes urban and rural pedestrian road-use practices into account by granting pedestrians the right of way in rural bikeways, roadway shoulders and clarifying pedestrian rights of access to bike lanes. If pedestrians are allowed to use bikeways and bike lanes, then the law must also clarify what the pedestrian should do when approached by a bicyclist (pass to the left or right?). The time has come to expand the rights of non-motorized users of Oregon’s street and highways (and shoulders, bikeways and bicycle lanes!).