Road Rage Is A Real Thing And Cyclists Have Civil Remedies – Part 2 of 2

Last week we discussed Road Rage.  Here is Part Two of that Article.  Here is how Steve Magas and I handled a real-world case of Road Rage in Ohio.  You have remedies!

R.C. 2307.60 As a Civil Remedy for Assaulted Cyclists

Revised Code 2307.60 provides an assaulted cyclist a remedy.

Ohio Revised Code 2307.60, entitled “Person Injured by Criminal Act Has Civil Remedy; Exceptions” states as follows:

(A)(1) Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

(2) A final judgment of a trial court that has not been reversed on appeal or otherwise set aside, nullified, or vacated, entered after a trial or upon a plea of guilty, but not upon a plea of no contest or the equivalent plea from another jurisdiction, that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue. The offender may introduce evidence of the offender’s pending appeal of the final judgment of the trial court, if applicable, and the court may consider that evidence in determining the liability of the offender.

Assuming a criminal appeal has not been taken, the key language of R.C. 2307.60 for an assaulted cyclist can be found in subsection (A)(2): “A final judgment of a trial court that has not been reversed on appeal … or upon a plea of guilty, . . . that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue.”

First and foremost, the crime must be one of violence (typically assault, battery or menacing) that could be punishable with a prison term of one year or greater.  Stated differently, R.C. 2307.60 will not apply if the crime is pled down to a misdemeanor assault, battery or menacing that carries a prison term of less than one year.

Having said that, the Ohio Supreme Court has recently held “that the plain language of the statute does not require proof of an underlying criminal conviction.”  Buddenberg v. Weisdack, 2020-Ohio-3832, ¶11.  While an injured cyclist may not have the benefit of the statutory estoppel provided by subsection (A)(2) of R.C. 2307.60, an action under R.C. 2307.60 can still be brought as a matter of law.  The Ohio Supreme Court recognized” “[i]t is certainly possible for an individual to commit an unlawful act and be prosecuted, yet evade conviction for a variety of reasons. Thus, we do not read the phrase “a criminal act” to mean “a criminal act that resulted in a conviction.”  Id. at ¶13.

Second, the criminal conviction or guilty plea must be entered into evidence.  This can be accomplished by admitting a certified copy of the conviction or plea agreement.

Third and most important, the criminal, now civil defendant is “precluded” or estopped from denying the elements of the civil causes of action for assault, battery and/or menacing provided “extraordinary circumstances” do not apply.

As discussed below, R.C. 2307.60 has been amended several times since it was enacted in 2008.  However, between 2008 and the date of this article, the question of what constitutes “extraordinary circumstances” has not been litigated in an Ohio courtroom and reduced to a published decision.

I would submit that the Ohio Legislature added this language where exculpatory evidence surfaced after the criminal trial akin to DNA evidence relied on in Innocence Project type of cases.  Further, one must note that the language of the statute focuses on due process rights.  The “circumstances” must have prevented a “full and fair opportunity” in the criminal trial to litigate the issue.  I would further submit the fear of incarceration or loss of liberty, while real concerns, are ordinary fears every criminal defendant faces when deciding to take a case to trial.  As a result, these fears should  not rise to the level of “extraordinary” just because a lengthy jail term may follow if the defendant is convicted.

Self-Defense? Really?

A typical response to an assault is that the defendant was acting in self-defense.  This allows a defendant to admit the allegation that he struck the victim, but justifies that contact on the grounds that he was protecting himself.  In my Ohio case, John Doe Cyclist, Steve Magas, Esq. and I were faced with an argument that John Doe Cyclist was careening toward the assailant (now felon) at issue and he had no choice but to push John Doe away and the fractured elbow that ensued was an accident.

If he was successful in asserting self-defense at the civil trial, that success would mean a complete defense to the assault and battery claims.  We argued that the defendant was estopped by common law under the doctrine of res judicata and statutorily estopped under R.C. 2307.60 from raising such a defense because (1) he admitted to the crime of assault in open Court under oath and (2) he had the opportunity to raise that defense in his criminal trial but chose not present that defense to the jury.

Res Judicata – Guilty Pleas Mean Something

As for the doctrine of res judicata, the Ohio Supreme Court has held:

Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

State v Perry (1967), 10 Ohio St.2d 175.

The Twelfth District Court of Appeals in McLoughlin v. Sword, Case No. CA93-05-014, 1993 WL 512370 (12th Dist.) involved a Road Rage incident.  Citing the doctrine of res judicata and relying on State v. Perry, supra, the trial court found that a Guilty Plea completely waived a subsequent claim of self-defense in tort proceedings.  The Twelfth District affirmed the trial court’s holding, finding:

However, with reference to the offense or offenses to which a guilty plea is entered by a defendant in a criminal prosecution, the plea is a complete admission of the defendant’s guilt. See Crim. R. 11(B)(1); State v. Pernell (1976), 47 Ohio App.2d 261, 264. Under the doctrine of res judicata, a final judgment of conviction bars a defendant from raising and litigating, in any subsequent civil or criminal proceeding, any defense that was raised or could have been raised by the defendant at trial which resulted in that judgment of conviction.  State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Consequently, any defense to the crime is completely waived by the entry of a plea of guilty. See Hoppe v. State (1928), 29 Ohio App. 467, 473; 26 Ohio Jurisprudence 3d (1981) 651, Criminal Law, 823.

Therefore, the trial court was correct in finding that by pleading guilty in his criminal prosecution for assault, appellant made a complete admission of his guilt and, as such, waived his ability to bring up any claim of self-defense in this subsequent civil action for assault. Appellant’s first assignment of error is accordingly overruled.

Id. at *2 (emphasis added).

R.C. 2307.60 Should Prohibit Self-Defense Arguments

At least one Court prior to 2006 permitted a convicted felon to put on self-defense arguments in a civil case based on R.C. 2307.60.  Interpreting a then-current version of R.C. 2307.60, the Fourth District Court of Appeals found: ““[s]imilarly, testimony adduced at the criminal trial may be considered in the civil case when properly submitted. In the interest of fairness, however, we feel the defendant to the tort must be afforded an opportunity to present evidence rebutting or explaining the criminal conviction.”  Phillips v. Rayburn (4th Dist. 1996), 113 Ohio App.3d 374, 382.

We argued that Phillips v. Rayburn is no longer good law.  Any reliance a Court would place on it would invite error.  The foregoing dicta was specifically superseded in 2006 with the addition of subsection (A)(2) and its estoppel language which specifically prohibits relitigating of any element of an intentional tort where a defendant enters a guilty plea to the same course of conduct, save extraordinary circumstances.  Senate Bill 107 revised R.C. 2307.60 to include the current version of Subsection A(2) for the first time in 2002.  The current version of R.C. 2307.60, includes the same Subsection (A)(2), and was reenacted in 2004.  Both of these pieces of legislation postdate the Fourth District’s Decision in Phillips v. Rayburn.

The Fourth District in Burns v. Adams (4th Dist.), 2014-Ohio-1917 all but overruled Phillips v. Rayburn in light of revisions to R.C. 2307.60 discussed above: “[t]he language of R.C. 2307.60 has since been revised, as we have indicated above, to allow that ‘a final judgment of a trial court … entered after a trial or upon a plea of guilty, but not upon a plea of no contest …’ shall preclude the offender from denying in a subsequent civil proceeding any fact essential to sustaining that judgment.’ This is a significant difference.”  Id. at ¶ 30 (emphasis added).

The Fourth District correctly noted the significant changes in R.C. 2307.60 in its critique of its earlier rulings in Phillips v. Rayburn.  R.C. 2307.60 has been revised no less than five times since the cause of action in Phillips occurred on August 11, 1994 – over 26 years ago as of the date of this Article.  It is noteworthy that the cause of action in Burns occurred on September 12, 2012 and interpreted the current version of R.C. 2307.60.

Final Thoughts

John Doe’s case settled favorably within weeks of oral argument on these legal points.

My real-world example was fortunately a rare case where significant physical injury resulted from a Road Rage confrontation.  However, it was one case too many.  Ohio’s Legislature recognized this in its enactment of R.C. 2307.60 as a form of victim’s rights legislation.

For those of us who ride alone and are faced with an enraged motorist it will be our word against their word absent some record.  This is where a GoPro or phone video/audio recording is paramount.  Even if physical injury is not a result of Road Rage incidents, the video and/or audio evidence may allow a prosecutor to bring menacing charges and may allow for a civil suit if the local prosecutor elects not to proceed with charges pursuant to the Ohio Supreme Court’s recent decision in .”  Buddenberg v. Weisdack, 2020-Ohio-3832.

Don’t navigate these waters on your own!  If you have been the victim of Road Rage in Ohio or Kentucky, please do not hesitate to reach out to Carville Legal Counsel LLC.  We offer FREE Consultations and would be happy to review your case with you.  Call Chris at 513 600 8432 or email Chris at [email protected] or Steve at [email protected] if you have any questions about your case.

Road Rage Is A Real Thing And Cyclists Have Civil Remedies – Part 1 of 2

Road Rage is a very real thing.  And cyclists are some of the most exposed users of roadways, highways, and streets.  This article and next week’s article will address Road Rage under Ohio law and discusses recourse available to assaulted cyclists based on a real-world case that Steve Magas and I brought to a favorable conclusion last year.

Road Rage Defined

The United States Department of Transportation draws a technical distinction between “aggressive driving” and “road rage.”  The words, “aggressive driving,” emerged during the 1990s as a label for a category of dangerous on-the-road behaviors. The category comprises following too closely, driving at excessive speeds, weaving through traffic, and running stoplights and signs, among other acts. Aggressive driving occasionally escalates to gesturing in anger or yelling at another motorist, confrontation, physical assault, and even murder; “Road Rage” is the label that emerged to describe the angry and violent behaviors at the extreme of the aggressive driving continuum. NHTSA defines aggressive driving in DOT HS 809 707 as, “the operation of a motor vehicle in a manner that endangers or is likely to endanger persons or property.” An important distinction is that aggressive driving is a traffic violation, while road rage, aside from yelling and gesticulating, is a criminal offense.

Fortunately, assault cases against cyclists appear to be statistically rare.  So rare that I could not find a database that tracked this type of crime against cyclists in particular.  However, these incidents do happen and are likely vastly underreported.

Road Rage Statistics  

Per a 2019 survey conducted by thezebra.com, survey respondents admitted the following:

  • 82% of drivers in the U.S. admit to having road rage or driving aggressively at least once in the past year.
  • 59% of drivers reported showing anger by honking.
  • 45% of drivers report changing lanes without signaling.
  • 42% of drivers claimed they have yelled or cursed loudly at another driver.
  • 38% said they have used rude or obscene gestures against other drivers.

That same 2019 survey found:

  • 7% got out of their vehicle to verbally confront another driver.
  • 6% threw objects.
  • 6% got in a physical altercation with another driver.
  • 5% sideswiped another vehicle.
  • 5% bumped or rammed another vehicle on purpose.
  • 5% forced another driver off the road.

Road Rage Against Cyclists – Criminal Recourse

For cyclists, the predominant form of Road Rage would likely fall into the category of a “Punishment Pass” wherein the motorist gives much less than the three-foot buffer required by Revised Code 4511.27 in Ohio and KRS 189.290 in Kentucky.  In addition, cyclists can be subjected to pop (or soda pending on what part of the country the cyclist finds him or herself) cans or beer cans being thrown at them.  I personally have been subject to Punishment Passes.  In addition, I have had partially full Two-Liter Pop Bottles thrown at me by irate passengers.

All of these activities violate Ohio law.

R.C. 2903.11(A) defines Felonious Assault as:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.

R.C. 2903.21 defines Aggravated Menacing as:

(A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family. In addition to any other basis for the other person’s belief that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family, the other person’s belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.

A True Story of Road Rage

The nightmare scenario is where one of these incidents escalates into an assault.  And that is exactly the scenario one of my clients found himself in while enjoying a 40-mile ride in rural Ohio.

As the matter is now settled and subject to a narrow confidentiality agreement, I will simply reveal that John Doe Cyclist was body checked into the criminal assailant’s truck following a hand gesture that was shared with said criminal after Joe Doe Cyclist was subjected to a Punishment Pass.

Unfortunately, this was one of those 7% scenarios where the motorist got out of his truck to verbally confront my client and his wife. That confrontation escalated into physical contact that resulted in a fractured elbow requiring multiple surgeries at the cost of tens of thousands of dollars.

That matter was criminally tried to a jury.  On the second day of trial, the criminal assailant opted to take a plea deal that avoided significant jail time. In open Court he admitted under oath to a felonious assault charge against our client and a menacing charge (as to his wife) as part of his plea deal.

In the civil suit, the criminal assailant denied the assault and menacing admissions entered under oath as part of his plea deal.  The criminal assailant claimed that my client was the aggressor, and he was the victim!  He claimed that he was simply acting in self-defense and my client was fabricating the allegations.

Our assaulted client, John Doe, had a civil remedy and next week’s article will discuss a unique application of Ohio law to Road Rage cases.

 

 

Limitations of the MUTCD When Applied to Bicyclists

Have you ever wondered where the design for bike signs or bike routes came from?  No?  I am not surprised.  It is Bike Month and I thought I would share a few thoughts on signage or “Traffic Control Devices” and “Bicycle Facilities” from a design perspective.

In the United States, engineers and urban planners rely on the Manual on Uniform Traffic Control Devices for Streets and Highways or “MUTCD” for a shortened reference.  The Current Tenth Edition was issued in 2009 with two Revisions dated May 2012.  Last month the Federal Highway Administration issued a Notice of Proposed Amendments.  Once those amendments are finalized, the Eleventh Edition of the MUTCD will be issued.

The MUTCD drills down into the smallest detail of size, shape and look of “Warning Signs and Plaques” related to bicycles:

 

The MUTCD is the Bible for traffic control engineers and civil engineers who design “Roadways”, “Rural Highways”, “Designated Bicycle Routes”, “Bicycle Lanes”, “Bikeways”, and “Bicycle Facilities.”  All of these are defined terms within the MUTCD.  It also includes or relates other design documents like The Uniform Vehicle Code and Model Traffic Ordinance and Guide for Development of Bicycle Facilities:

 

The purpose of the MUTCD is right in its title – Uniformity.  Uniformity is good.  Red means stop and green means go.  Right?  Of course.  It is easy to analyze signage and placement.  The MUTCD provides definite proscribed standards for the look and location of signs.  The MUTCD and its incorporated documents can only provide guidance on the tougher issues of retrofitting Bicycle Facilities in an urban environment, for example.  And that guidance promotes a very conservative approach in designers of new and retrofitted Bicycle Facilities.  If a designer takes the most conservative approach, he or she is insulated themselves and their clients or employers from legal liability for injuries and death that may (or may not) have resulted from a design decision.  And once those design decisions are executed, it is very difficult, not to mention expensive, to reverse or change course.  Road improvements are expensive and modifications can lead to traffic delays, congestion, and irritated citizens.

Our friends at America Walks sponsored a very informative Webinar on the limitations of the MUTCD which aired on April 26, 2021.  The panel discussion which begins at 39:30 is very helpful to the average bicyclist in understanding the limitations of the MUTCD:

Oklahoma House Bill 1770 Would Legalize Idaho Stops and Provide Cyclists Additional Protections.

On March 16, 2021, I wrote about the status of Delaware’s Bicycle Friendly Delaware Act.  The protections afforded to bicyclists in Delaware’s intersections are set to expire this year as the Bicycle Friendly Delaware Act contained a sunset provision.

The Oklahoma Legislature followed the safety statistics in both Idaho and Delaware. The Oklahoma House passed House Bill 1770 with an overwhelming vote of 76-13 on March 11, 2021.  On April 20, 2021 the Oklahoma Senate approved the Bill and sent it back to the House for further consideration.

My compliments to Representative Dobrinski and his Staff.  House Bill 1770 sets forth a straightforward and easy-to-follow-standard for bicyclists to apply at intersections:

An “immediate hazard” is defined as “a vehicle approaching a person operating a bicycle at a proximity and rate of speed sufficient to indicate to a reasonably careful person that there is a danger of collision or accident.”

House Bill 1770 also provides a standard for bicyclists approaching a steady red traffic-control signal.  A complete stop is required when traveling through the intersection.  However, “if a person operating a bicycle determines there is no immediate hazard, he or she may proceed through the steady red traffic-control signal with caution.”

Where a bicyclist is making a right-hand turn at a steady red traffic-control signal, he or she may “roll” the intersection provided, he or she “slow[s] to a reasonable speed and yield[s to] the right-of-way, if required, to oncoming traffic that constitutes an immediate hazard[.]”

House Bill 1770 also makes it a crime of reckless driving for a motorist to “taunt or maliciously throw an object at or in the direction of any person riding a bicycle, equine or animal-drawn vehicle.”  This only appears to be a misdemeanor offense as the maximum penalties are six months in prison and a One Thousand Dollar fine.  House Bill 1770 also prohibits drivers from “us[ing] a horn when passing a person riding a bicycle, equine or animal-drawn vehicle under normal conditions if no imminent danger of a collision exists.”

This is very encouraging news out of the State of Oklahoma.  I would love to see similar legislation regulating intersections in Kentucky and Ohio.

 

A Day of Remembrance For Deceased Pedestrians and Cyclists

On Wednesday, April 7, 2021, I attended A Day of Remembrance recalling and celebrating the lives lost to pedestrian and cycling deaths on Kentucky and Ohio roadways.  Penning a blog on preventable deaths is both difficult and jarring considering one week ago I was writing about the joys of bike riding and bike racing.  Unlike you and me, those remembered will never throw their leg over their bike’s top tube or lace up their sneakers for a run or a walk.  Pedestrians and cyclists are the most vulnerable users of Kentucky and Ohio roadways.   In Kentucky alone, in 2018 there were 1,024 pedestrian collisions resulting in 12 deaths and 332 bicycle-motorist collisions resulting in 9 deaths.  In 2019 there were 1,048 pedestrian collisions resulting in 80 deaths and 330 bicycle-motorist collisions resulting in 4 deaths.  We await a final compilation of 2020 figures from Kentucky Traffic Safety Data Services.

Elected Officials, Policymakers, and Traffic Engineers can do much to design, redesign and retrofit existing roadways to make them safer for those vulnerable users.  We can do something too.  We can be vocal advocates for the deceased and their families.

I am struck by the totally preventable deaths – in particular those involving drugs and/or alcohol use.  Just last month, on March 1, 2021, Bradley McNally, only 33 years old, was struck and killed on his bicycle in Bell County, Kentucky by an impaired driver who fled the scene.

Last year, Steve Adams, a friend, was struck from behind on a morning ride in Cincinnati and ultimately succumbed to his injuries.  Again, the driver fled the scene.  We have ordered the police report and investigation file – whether impairment was an issue remains an open question.

In 2017, William Rust was struck from behind on U.S. 52 by an impaired driver who fled the scene. William was 61 and survived by his wife and children.

In 2016, again on U.S. 52, Michael Prater, a friend, was struck from behind on a training ride and killed, again, by an impaired driver who fled the scene.  Michael was 42 and survived by his wife and children. His son was three years old, and his daughter was only four months old.

We will never know whether immediate medical attention would have mitigated the injuries of these cyclists.  We do know that the drivers were cowards selfishly motivated to protect themselves at the expense of a dying cyclist.  More needs to be done in the charging and sentencing of these cowards.  Their cowardice may have cost these men their lives.  Their criminal sentencing should send a message to all users of Kentucky and Ohio roadways.

Death March Race Report, The Art of Under-Planning, and a DNF-M Finish

Many of us will not forget March 13, 2020.  That date is doubly significant for me. At 10:00 a.m. I had resigned from my secure corporate litigation job to hang a shingle to represent cyclists in Kentucky and Ohio.  By 3:00 p.m. Governor Dewine had begun the inexorable “lockdown” process to “flatten the curve.”  Governor Beshear would soon follow.

Needless to say, in-person marketing (the lifeblood to any organization which needs to generate revenue or raise capital) was put on a bit of a hiatus.  Professional and college sports went on a hiatus until team doctors and administrations figured out how to operate in “a Bubble.”  Church services went online; schools went online; work went online; groceries went online; even bike racing went online.

Online bike racing?  I get Canyon/SRAM finding riders online based on power numbers and I sort of get Zwift Academy.  But what about “The Rules”?  For a Road Cyclists, these are the 10 Commandments or 95 Commandments as it were.  There is absolutely no reference to “online” or “Zwift” or “Smart Trainer” in The Rules.  As an attorney, I would argue that Rules #5 and #9 resolve the question of Smart Trainers and online platforms, but I digress …

The point of riding a bicycle is to be outside with friends.  The point of living is to be with loved ones.  If you are lucky, the two will meet.  “Online” living, riding, and racing does not allow you to be with – “online” is a poor facsimile for the real thing.  So fast forward to March 27, 2021, exactly one year, and two weeks later I was back to racing!  And boy did I need it – more than I knew.

Death March.  It is an (almost) annual tradition for me dating back to 2013.  Allow me a quick plug for the Race.  If you love gravel, do it.  If you love mountain biking, do it.  If you love adventure racing, do it.  If you love racing with friends, do it.  Here is the premise:  find a bunch of cemeteries that are assigned time bonuses with whatever route you chose, and the lowest time (calculated by actual time minus bonuses) wins.  There are some other rules, but that is the gist of it.  What follows is a “sort-of” race for most racers.  I say sort-of because everyone is not taking the same right turns, so during the race no one really knows who is winning until the end of the race.  This promotes much comradery and cooperation on the course because the cemeteries can be hard to find (more on that later).  You can flog yourself as hard as you choose between cemeteries, knowing that one navigation error is the equivalent of burning all the matches you have in your box, and then some. The vibe is chill, and everyone looks forward to a post-race beer.

This Year’s Edition was unusually kind weatherwise.  The race started out at 39.2 degrees and ended at 78.8 degrees and sunny throughout.  Almost like God gave us a hall-pass on the weather.  In the 2019 Edition, the weather averaged 34 degrees with lightning and thunderstorms – which can feel really, really REAL on the top of an exposed ridgeline.

However, this Year’s Edition was not equally kind on race-day mandatories.  Well, not kind to those of us who started their route-planning at 10:00 p.m. on March 26, 2021 because his son had a high school lacrosse game under the lights.  One under-plans at their own peril.  I have made under-planning an artform.  Just ask my Pal Charlie.  I invited him down all the way from Michigan in 2015 with NO MAP between us and only my 2013 route loaded on my Garmin 500 – remember those?  Not much of a navigation screen to work off.  Lose a GPS signal and you get lost pretty quick.

Well, history has a way of repeating itself.  Fast forward to March 26, 2021 11:30 p.m.  I was much more prepared than my 2015 navigation disaster — or so I thought.  My new partner, Nate (he is not really new, we did it together in 2013) had a brand-new Karoo 2 with all the GPS coordinates downloaded and I had my trusty laminated National Geographic Topographical Map with all the cemeteries called out with red and yellow stickers.  Red for mandatory, yellow for optional cemetery checkpoints.  By 11:30 p.m. I had found all the cemeteries on my topographical map.

In my defense, how hard is it to find a cemetery, right?  You find a road, you ride along it until you see a cemetery, stop, take and picture to prove you were there, and then ride on to the next checkpoint, right?  Wrong.  This thinking only applies to cemeteries on paved roads.  The Callahan Cemetery dates back to 1812 and there are no paved roads to get you there.  A little history lesson from a geocaching website:

At the start of the war of 1812 there were about 70 families in Jackson Co. When the Indians started fighting with the British and killing settlers, all of the families in Jackson Co. except for twelve families, left. Those twelve families holed up in Fort Vilonia. At the end of the war the Indians were pushed north of what was called the Indian Treaty Line at the northern edge of Jackson Co. This allowed settlement of Jackson Co.

Jesse and Eve Callahan aged 22 and 17 were among those couples. Sometime around 1817 Jesse Callahan bought 160 acres of land in a valley just west of Cornett grove cemetery for $1.25 an acre. Jesse and Eve died around 1865 and had 8 children over their lifetime. Jesse and Eve and most of their adult children are buried in the Callahan Cemetery.

There are at least 25 headstones in the cemetery, most are unmarked flat creek rock, and there are some graves that have no marker. In Jesse’s time the main east-west road ran past Cornett Grove on to his farm and forked. The south fork wound through the valley and came out on Hickory Ridge Rd. just north of Norman. The North Fork climbed to the top of the ridge, passing the cemetery, and going along the ridge top to near where the other fork came out just north of Norman, on Hickory Ridge. Sometime around 1900 The Hoosier National Forest was formed and took all the land from Cornett Grove to Norman.

The only way to get to Callahan Cemetery is by horse trail.  Like “Trail 16” which our friends at National Geographic’s map clearly, to my eye, showed as the closest trail to Callahan Cemetery.  If National Geographic, who gave us endless Jacques Cousteau documentaries, shows “Callahan Cemetery” above Callahan Creek and southeast of Trail 16, Callahan Cemetery should be above Callahan Creek and southeast of Trail 16, right?  If it’s good enough for Jacques, it should be good enough for Nate and me, right? WRONG.  I should have known better when the Race Director snickered over the loudspeaker when he announced “Callahan” as one of the race-day mandatories.

Callahan Cemetery as Shown on National Geographic Topo Map

I learned, over a beer, at the finish line from a Local, “that everyone around here knows Callahan is off Trail 15 and ‘The Map’ is wrong.”  You mean that map that cost me $14.95 for the waterproof and tear-resistant version?!?

To be clear, I do not blame the Race Director for National Geographic’s placement of Callahan Cemetery on its topo map.  And to be equally clear, I don’t blame anyone other than myself.  And to be super clear, I do not blame Nate!  It was all on me.  I had been to Callahan in 2017 (without Nate) and it was indeed off of Trail 15 as it has been for 150 years.

Strava Screenshot of Callahan Cemetery from 2917 Edition of Death March

In my humble estimation, it is these kinds of idiosyncrasies that make Death March, well Death March.  Technically, Nate and I are DNF. I would humbly suggest that Death March needs to add a DNF-M for those racers who, like me, got lost in 2013 or could not find a mandatory in 2021.  Adding an “M” to Did Not Finish [all] Mandatories would restore a small measure of dignity.  I still got over 6 hours in the saddle (and over one and half hours of hike-a-bike along horse trails) and 70 miles of sweet gravel/road/single track in my legs.  And I had a fine cold beer from Upland Brewing Company waiting for me at the finish line.  I had been waiting over a year for that beer and it never tasted better.

Idaho Cycling Stops and Kentucky Law on Cyclists at Intersections

Many Cyclists and Cycling Advocates are big fans of Idaho Stops.  I know I am.  Currently, at least six states have “legalized” Idaho Stops: Idaho, being the first in 1982, as well as Arkansas, Colorado (on an opt-in basis), Delaware, Oregon, and Washington.  California, Colorado (on a statewide basis), New York, Utah, and Virginia have proposed passing Idaho Stop legislation in 2021.

Delaware’s “Idaho Stop” legislation entitled Bicycle Friendly Delaware Act was enacted on November 1, 2014.  The legislation is unique as the original bill contained a “sunset provision” which provided that the law would “sunset” or terminate if not renewed.  Well, the sun is descending toward the horizon line.  An amendment in the form of House Bill 36 proposes making the Bicycle Friendly Delaware Act permanent is pending on the floor of the Delaware Legislature.

As a nonresident of the fine state of Delaware, all of this came to my attention as the Kentucky Bike Lawyer via my Google Alerts which got me thinking about Idaho Stops in Kentucky.

Idaho Stops can be divisive between motorists and cyclists, so they are back in the news in Delaware with strong feelings on both sides of the debate.  On the one hand, uniform laws should encourage uniformity among all users of the roadways and therefore safety should follow.  On the other hand, cyclists will report that while uniformity in the use of the roadways is a noble goal, predictability at intersections does not necessarily follow.  A lack of predictability makes intersections particularly dangerous for cyclists.

Let’s face it, at intersections cyclists are often treated as a hybrid of motorist and pedestrian.  In most localities pedestrians are not held to the same traffic rules as motorists and that may further confound a motorist’s understanding of the “rules of the road.”  Most motorist-cyclist intersection interactions, in the best-case scenarios, are fraught with confusion:

A motorist with right-of-way may yield despite arriving at the intersection first just to avoid the potential for a crash. 

A motorist without right-of-way may incorrectly interpret eye contact with the cyclist as permission to proceed.

A cyclist without right-of-way may also incorrectly interpret eye contact with a motorist as permission to proceed.

A motorist may not come to a complete stop when making a right turn and collide with a cyclist proceeding with his or her right-of-way.

A cyclist may just blow a downhill stop sign with painful results – I have seen it myself on a group ride.

The permutations can go on.  All it takes is one first person experience to harden a person’s belief system for a lifetime.

Idaho as Model Legislation

Title 49, Chapter 7 of the Idaho Code states:

Idaho Code 49-720.

The most important language in this legislation requires that a cyclist “approaching a stop sign shall slow down and, if required for safety, stop before entering the intersection[.]”  The legislation further requires the cyclist to “yield right-of-way to any vehicle in the intersection or approaching  . . . so closely as to constitute an immediate hazard[.]”  Simply stated, an “Idaho Stop” permits a cyclist “to roll” an intersection provided no other vehicles are in the intersection or approaching the intersection.  More simply stated, a cyclist needs to exercise common sense when deciding “to roll” a stop sign-controlled intersection.

“Follow the Science”

Our friends at Bike Delaware are encouraging voters to follow the science, to borrow a recent turn of phrase.  Bicycle crashes at Stop Sign Intersections have been down a whopping 23% in Delaware since the Bicycle Friendly Delaware Act was enacted.  Fortunately, all other crashes involving bicycles were also down during that 30-month period, but by only 8%.  23% versus 8% is statistically significant, even for this simple country lawyer.

One of the first, most influential, and oft-cited studies of the “Idaho Law” was penned by Jason M. Meggs in 2010.  That study was entitled Bicycle Safety and Choice: Compounding Public Cobenefits of the Idaho Law Relaxing Stop Requirements for Cycling.  As of 2010, Idaho had been a real-world test case for relaxing stopping rules for bicyclists at intersections.  Meggs reviewed several studies.  Comparisons of Boise, Idaho to comparable cities found Boise to be safer for cyclists.  For example, when compared to Sacramento, California bicycle safety fared 30.4% better in Boise on the low end and 60.6% better on the high end.  Within the State of Idaho, bicycle injury rates in the state declined by a substantial 14.5%, with no change in the number of cycling fatalities the year following the enactment of the Idaho Law.

A Little Common Sense

Cycling Advocates have done, and continue to do, their homework on increased safety at stop sign intersections as a result of Idaho Stop Laws.  I would like to see the numbers from “Motorist Advocates” (is there such a group?) that demonstrate that Idaho Stop Laws have increased the number of injuries to motorists who collide with  cyclists at an intersection (regardless of fault) in Idaho (we are approaching 40 years since the enactment of the Idaho Law) or in their state.

In this age of inexpensive digital cameras and accessible public records, opponents of the Idaho Law could easily cobble together statistics on motorists injured because of collisions with cyclists at stop sign-controlled intersections.  Why don’t they?  Common sense would dictate that a motorist encased in a quarter ton of steel usually fares better than a cyclist on a 15-to-25-pound bicycle with nothing more than a jersey or jacket on his or her back.  But I am willing to be convinced by the science if it is out there.

Idaho Stops in Kentucky

The Delaware kerfuffle got me thinking about Kentucky’s Revised Statutes and Administrative Code on Idaho Stops.  Kentucky is definitely not on the list of the BIG SIX: Idaho, Arkansas, Colorado (on an opt-in basis), Delaware (for now), Oregon, and Washington.

Kentucky’s Administrative Code does permit a type of Idaho Stop: “[a] bicyclist operating on a highway or highway shoulder may proceed after stopping and if safe against a red light if a traffic signal fails to detect the bicycle.” See, 601 KAR 14:020 Section 7(5).  Note that this is an administrative regulation, not a full-blown bill passed into law.  This regulation is not written in the vein of the original Idaho Law, which contemplates a cyclist “approaching a stop sign [who] shall slow down and, if required for safety, stop before entering the intersection[.]” Idaho Code 49-720.  It contemplates a full stop and a light that fails to detect a cyclist before a cyclist is permitted to proceed through the intersection.

As an administrative regulation, 601 KAR 14:020 Section 7(5) is also arguably subordinate to any local or municipal ordinances on point.  KRS 189.287 is the statute that gives the Department of Transportation the authority to pass regulations like 601 KAR 14:020 Section 7(5).  KRS 189.287 contains a caveat which states: “Bicycles and riders which comply with the regulations promulgated under this section are exempt from municipal and other local government regulations concerning safety equipment but not method of operation.

So the short answer is that a true “Idaho Stop” remains illegal in Kentucky but a cyclist can proceed against a red light (1) provided he or she comes to a complete stop and the light was not triggered and (2) provided there is not a local ordinance on point regulating a cyclist’s use of an intersection.

If you have any questions about the Idaho Law in general or Kentucky Law as applied to cyclists, you can reach the author at [email protected]

 

Excuse Me For Impeding – Differing Laws for Ohio and Kentucky Cyclists

So, if a Cyclist has the right to ride in the roadway and a right to ride two-abreast, does he or she have a right to impede traffic?

In Ohio…

In Ohio, you are not impeding traffic presuming that you are operating your bicycle at or near its maximum speed.

In Ohio, R.C. 4511.22 states:

(A) No person shall stop or operate a vehicle, trackless trolley, or streetcar at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

“Vehicles” are broadly defined in Ohio.  Pursuant to R.C. 4501.01(A), a “vehicle means everything on wheels or runners, including motorized bicycles, but does not mean electric personal assistive mobility devices, vehicles that are operated exclusively on rails or tracks or from overhead electric trolley wires, and vehicles that belong to any police department, municipal fire department, or volunteer fire department, or that are used by such a department in the discharge of its functions.”

Bicycles are defined by R.C. 4501.01(K) as “every device, other than a device that is designed solely for use as a play vehicle by a child, that is propelled solely by human power upon which a person may ride, and that has two or more wheels, any of which is more than fourteen inches in diameter.”

Given the broad definition of “vehicle” in R.C. 4511.22, a Cyclist “operating a vehicle [including a bicycle]” who travels at “an unreasonably slow speed” could be guilty of “imped[ing] or block[ing] the normal and reasonable movement of traffic[.]”  Measured against a motor vehicle, virtually any nonprofessional cyclist would be operating his or her bicycle at an unreasonably slow speed could impede the normal and reasonable movement of traffic.  Steven O. Selz was charged with just such an offense by the City of Trotwood.  Mr. Selz was accused of violating Section 333.04(a) of the Trotwood Municipal Code, which provided (similar to R.C. 4511.22):

No person shall stop or operate a vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with [the] law.

Mr. Selz was convicted of this offense in Traffic Court.  Fortunately for Mr. Selz and Cyclists in Ohio, he was capably represented by my friend and colleague, Steve Magas.  Section 333.04(a) of the Trotwood Municipal Code could not be fairly read to prohibit any bicycle on an Ohio roadway.  Steve argued, with success, that Mr. Selz was operating his “vehicle” (also known as a bicycle) at the maximum speed at which he could possibly operate his bicycle – 15 mph uphill!

Steve analogized Mr. Selz’s operation of his bicycle to that of an operator of a corn combine in a prior case, where that court found: “The corn combine, was traveling at or near its highest possible speed. To permit the jury to impose liability on the basis of the speed of the combine would be tantamount to a holding that the operation of farm machinery such as appellants’ on the public roadway typically constitutes negligence per se. We cannot endorse such a holding. Title 68A [of the Georgia Code] does not exclude farm machinery from the public roads.”

Trotwood v Selz was decided in 2000.  Two years later, pursuant to Senate Bill 123, R.C. 4511.22 was amended to include Subsection (C) which now includes language very similar to the Second District’s Holding in Trotwood v Selz:

(C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

So the moral of the story in Ohio is that a Cyclist will not be impeding traffic if he or she is operating their bicycle at the upper end of their capabilities, which may beg the question of what that particular Cyclist’s capabilities were in the first instance.  A professional cyclist’s “capabilities” going uphill on a roadway will be much different than a weekend warrior’s capabilities.  These are arguments that may fall on deaf ears as you are issued a citation by a police officer but may find a receptive ear by a municipal or state court judge or a jury of your peers if that matter goes that far in the justice system.

In Kentucky…

Kentucky Cyclists do not face similar exposure to criminal convictions.

In Kentucky, KRS 189.390(7) states:

A person shall not drive a motor vehicle at a speed that will impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

The difference, like the devil, is in the detail.  KRS 189.390(7) is limited to motor vehicles.

Like Ohio, vehicles are broadly defined in Kentucky.  A bicycle will be considered a “vehicle” under the Kentucky Revised Statutes as a bicycle is an “agency” for ”the transportation of persons over or upon the public highways of the Commonwealth.”

KRS 189.010(19)(a) defines a “vehicle” as including:

1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and

2. All vehicles passing over or upon the highways.

Bicycles are specifically exempted from “slow vehicle” signage in Kentucky. A bicycle does not have to display a slow-moving vehicle emblem that is required of other “slow-moving vehicles.”

KRS 189.830 states as follows:

(1) The slow-moving vehicle emblem shall be restricted to the uses specified herein and the use on any other type of vehicle or on other objects is prohibited.

* * *
(5) The slow-moving vehicle emblem shall not be used on a bicycle.

So the short answer to the pending impeding question is: Cyclists in Ohio are broadly defined as vehicle operators and may be subject to prosecution for impeding traffic, but a good lawyer should be able to “get you off” (because you were innocent in the first instance) pursuant to Trotwood v Selz (2000 2nd Dist.), 139 Ohio App.3d 947 and subsection C of R.C. 4511.22 arguing that you were pedaling within your “capabilities”; and Cyclists in Kentucky should not be charged in the first instance because the impeding traffic statute, KRS 189.390(7), is narrowly limited to motor vehicles, not all vehicles.

Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 2 of 2

This Blog Article follows my February 15, 2021 Article on Three Foot Law Protections for Cyclist in Ohio and Kentucky.  The February 15, 2021 Article discussed Ohio’s Three Foot Law.  This Article discusses Kentucky’s Three Foot Law.

KRS 189.340 (2) states:

(a) Vehicles overtaking a bicycle or electric low-speed scooter proceeding in the same direction shall:

    1. If there is more than one (1) lane for traffic proceeding in the same direction, move the vehicle to the immediate left, if the lane is available and moving in the lane is reasonably safe; or
    2. If there is only one (1) lane for traffic proceeding in the same direction, pass to the left of the bicycle or electric low-speed scooter at a distance of not less than three (3) feet between any portion of the vehicle and the bicycle or electric low-speed scooter and maintain that distance until safely past the overtaken bicycle or electric low-speed scooter. If space on the roadway is not available to have a minimum distance of three (3) feet between the vehicle and the bicycle or electric low-speed scooter, then the driver of the passing vehicle shall use reasonable caution in passing the bicyclist or electric low-speed scooter operator.

(b) The driver of a motor vehicle may drive to the left of the center of a roadway, including when a no-passing zone is marked in accordance with subsection (6) of this section, to pass a person operating a bicycle or electric low-speed scooter only if the roadway to the left of the center is unobstructed for a sufficient distance to permit the driver to pass the person operating the bicycle or electric low-speed scooter safely and avoid interference with oncoming traffic. This paragraph does not authorize driving on the left side of the center of the roadway when otherwise prohibited under state law.

Unlike Ohio’s Revised Code 4511.27, Kentucky’s Three Foot Law includes a very clear prohibition on overtaking or passing a cyclist: “Vehicles overtaking a bicycle . . . proceeding in the same direction shall: . . .  If there is only one lane for traffic proceeding in the same direction, pass to the left of the bicycle . . . at a distance of not less than three feet between any portion of the vehicle and the bicycle or electric low-speed scooter and maintain that distance until safely past the overtaken bicycle or electric low-speed scooter.”

Simple and straightforward, right?  Yep.  Whether in traffic court or a civil suit arising from an injured or killed cyclist, the minimum standard is three feet, period.  End of story.  A motorist is prohibited from passing a cyclist any closer than three feet.

In this era of GoPros and Cycliq’s Fly12 (front-facing light and camera) and Fly6 (rear-facing light and camera) many crashes and close calls are caught on film.  These devices allow cyclists to document without question the manner in which the illegal pass took place, and unfortunately, how the vehicle-bicycle crashes occurred.

Cycliq’s website catalogs what remains a scourge on roads worldwide.  This Cycliq Video entitled CLOSE PASS-APALOOZA will send shivers down your spine:

Perhaps it is my skeptical view of the world or my bias born of decades of experience in Kentucky and Ohio Courtrooms, but it is my view that litigants are not always as accurate as they could be (I am being charitable) or just plain misrepresent (you know where I am going) the moments leading up to a crash.  A GoPro camera or Cycliq camera can often take all the speculation out of these events for a judge or jury.  Simply stated, they are worth the extra money.  Unfortunately, these cameras do not prevent crashes, but they can document them creating invaluable real-time evidence.

Unlike Ohio, Kentucky does not have an AFRAP statute like Ohio’s Revised Code 4511.55 specifically addressing cyclists.

So, the question of where the cyclist is riding is of paramount importance.  A strict reading of KRS 189.340(2)(a) would require a three-foot buffer under all conditions when passing or overtaking a cyclist.  Although untested, there is an argument that if the cyclist did not have a right to be on the roadway in the first instance, then KRS 189.340(2)(a) might not apply.  If there is a crash with injuries or death as a cyclist is overtaken and struck by a motorist, the motorist may argue contributory negligence on the part of the cyclist for riding in an area where he or she did not have a legally protected right to ride.

For example, a cyclist is prohibited from riding in a roadway where there is a “designated bike lane” in Kentucky.  This is a strict prohibition.  601 KAR 14:020 Section 7 states as follows:

Section 7. Operation of Bicycles. (1) A bicycle shall be operated in the same manner as a motor vehicle, except that the traffic conditions established in paragraphs (a) and (b) of this subsection shall apply.

(a) A bicycle may be operated on the shoulder of a highway unless prohibited by law or ordinance.

(b) If a highway lane is marked for the exclusive use of bicycles, the operator of a bicycle shall use the lane unless:

    1. Travelling at the legal speed;
    2. Preparing for or executing a left turn;
    3. Passing a slower moving vehicle;
    4. Avoiding a hazard;
    5. Avoiding the door zone of a parked vehicle; or
    6. Approaching a driveway or intersection where vehicles are permitted to turn right from a lane to the left of the bicycle lane.

Simply stated, unless one of the six exceptions in Section 7(b) apply; if there is a highway lane “marked for the exclusive use of bicycles, the operator of a bicycle shall use [that] lane[.]”  601 KAR 14:020 Section 7 makes the use of bike lanes on a highway mandatory.

Similarly, a cyclist is prohibited from riding within the right-of-way of a “fully controlled access highway.” 603 KAR 5:025 Section 4 states:

Section 4. Limitations. The following shall be prohibited within the right-of-way of a fully controlled access highway:

(1) Bicycles or motor scooters[.]

However, a cyclist is specifically permitted to ride within a shoulder of a highway.  601 KAR 14:020 sets forth permissive “may” language in Section 7(1)(a) with regard to the use of a highway’s shoulder:

(1) A bicycle shall be operated in the same manner as a motor vehicle, except that the traffic conditions established in paragraphs (a) and (b) of this subsection shall apply.

(a) A bicycle may be operated on the shoulder of a highway unless prohibited by law or ordinance.

I would contend that so long as the foregoing prohibitions (use of available “designated bike lane” and nonuse of right-of-way of a “fully controlled access highway”) are not at issue and the cyclist, at worst, is in the shoulder of a highway/roadway, Kentucky’s protective three foot buffer would apply.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril.  If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC.  We offer FREE consultations. Chris can be reached at [email protected] or 513 600 8432.

Three Foot Law Protection for Cyclist in Ohio and Kentucky – Part 1 of 2

On my second visit to the Two Johns Podcast, we discussed both Ohio’s and Kentucky’s Three Foot Passing Laws and how they protect Cyclists. This article is the first of two comparing and contrasting Ohio’s Three Foot Law for Cyclists with Kentucky’s Three Foot Law for Cyclists.

Our friends at the National Conference of State Legislatures offer us the following summary:

In 1973, Wisconsin became the first state to enact such a law; several more states have since enacted such measures. As of April 2020, 33 states—Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Virginia, Utah, Washington, West Virginia, Wisconsin and Wyoming—and the District of Columbia have enacted passing laws that require the motorist to leave at least 3-feet or more when passing a bicyclist.

North Carolina has a 2 feet passing requirement for motorists, and also allows passing in a no-pass zone if a motorist leaves 4 feet clearance.

Two states have laws that go beyond a 3-feet passing law. Pennsylvania has a 4-feet passing law. South Dakota enacted a two-tiered passing law in 2015; with a three-foot passing requirement on roads with posted speeds of thirty-five miles per hour or less and a minimum of six feet separation for roads with speed limits greater than thirty-five miles per hour.

Additionally, five states, Delaware, Kentucky, Nevada, Oklahoma and Washington, require a motorist to completely change lanes when passing a bicyclist if there is more than one lane proceeding in the same direction.

In 8 other states, there are general laws that provide that motorists must pass at a “safe distance.” These laws typically state that vehicles must pass bicyclists at a safe distance and speed; Montana’s law, for example, requires a motorist to “overtake and pass a person riding a bicycle only when the operator of the motor vehicle can do so safely without endangering the person riding the bicycle.”

Ohio enacted its Three Foot Law in 2017.  As will be discussed in Part 2 of this series of Articles, Kentucky enacted its Three Foot Law in 2018.

Ohio’s Three Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

(A) The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(1) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall, except as provided in division (A)(3) of this section, signal to the vehicle or trackless trolley to be overtaken, shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley. When a motor vehicle or trackless trolley overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.

(2) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and the operator shall not increase the speed of the operator’s vehicle until completely passed by the overtaking vehicle.

(3) The operator of a vehicle or trackless trolley overtaking and passing another vehicle or trackless trolley proceeding in the same direction on a divided highway as defined in section 4511.35 of the Revised Code, a limited access highway as defined in section 5511.02 of the Revised Code, or a highway with four or more traffic lanes, is not required to signal audibly to the vehicle or trackless trolley being overtaken and passed.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

Note the language of the statute’s “requirement”: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.”  Contrast this statutory language with the United States’ first Three Foot Law: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle” as found in Wisconson’s Wis. Stat. § 346.075.  When one drills down into the detail of Ohio’s Three Foot Law, it reads more like a suggestion than a mandatory prohibition on passing distances between a Cyclist and an overtaking motorist.

The consequences of Ohio’s less mandatory statutory language would be more significant in traffic court or a criminal court where defense counsel for the accused will invariably argue that the unique circumstances of his or her client’s case justified a one or two-foot pass as “safe.”  There are scant resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  So we have little idea of how often Ohio’s Three Foot Law is being enforced and with what level of success.  However, we do have a standard to enforce in a civil case where a cyclist is injured or killed as a result of a crash with a passing motorist.  A cyclist rarely wins – like never – in a crash with a passing motorist.  And the fact that the crash occurred is damning evidence that the motorist violated Ohio’s Three Foot Law and there is tremendous value in that.  Further, most citizens in Ohio have never read R.C. 4511.27 and only know that Ohio has a “Three Foot Law” designed to protect cyclists.  There is even more value in a conversation and increased awareness of legislation designed to protect cyclists in Ohio.

Ohio’s Three Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which requires Cyclists to ride as “As-Far-Right-As-Is-Practicable.”  Ohio’s AFRAP requirement for Cyclists can be found in R.C. 4511.55:

(A) Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.

(B) Persons riding bicycles, electric bicycles, or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles, electric bicycles, or motorcycles.

(C) This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

(D) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
If the offender commits the offense while distracted and the distracting activity is a contributing factor to the commission of the offense, the offender is subject to the additional fine established under section 4511.991 of the Revised Code.

“Practicable” is undefined anywhere in the Revised Code which leaves it in the eyes of the beholder – or a judge or a jury of your peers.  Where a cyclist is charged with violating R.C. 4511.55 there is a constitutional argument that the criminal prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article.

Where a cyclist is injured as a result of a crash, R.C. 4511.55 can come into play if the crash occurs within the road’s white lines.  The motorist in that situation will invariably assert that there was sufficient “roadway” or “shoulder” or “berm” for the cyclist to ride more safely or “more practicably” to the right so as to have avoided the crash.  This sets up some very obvious tension for a cyclist using Ohio’s roads.  If you ride within what is commonly understood as the roadway or within the right lane so as to be established and predictable in your movements you could be criticized for not being more “practicable” and riding within the berm or shoulder (if available and practicable).  On the other hand, if you ride as far right as possible, you could be weaving along the right-most portion of the road/roadway and appear erratic and unpredictable.  You could also be exposing yourself and fellow cyclists (if on a group ride) to problematic tarmac and other hazards that find their way into a shoulder or berm.   Fortunately, R.C. 4511.55 contemplates this tension and provides that a cyclist is not obligated to ride as far right as possible, or on the “edge of the roadway”: “This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.”  Subsection (C) provides a safety-valve of sorts, allowing a cyclist to argue that the conditions at the “edge of the roadway” would not permit safe riding.  However, this does leave open the question of whether a cyclist is obligated to ride in an unobstructed or hazard-free shoulder or berm.

Cycling accidents that occur as a result of a motorist passing or overtaking a cyclist are fraught with peril.  If you are the victim of such an accident, do not hesitate to reach out to Chris at Carville Legal Counsel, LLC.  We offer FREE consultations. Chris can be reached at [email protected] or 513 600 8432.