Garrett County Double Diablo 2022 Recap

 

The Garrett County Double Diablo Grand Fondo on June 18, 2022 was not my idea.

My training partner, Nate, suggested it on a Sunday Ride.  He really dared me to say No.  He tends to bite off Big Projects like TNGA, Michigan’s Coast to Coast Gravel Grinder (which he has also talked me into), Mohican 100 Mountain Bike Race, several Nue Series Mountain Bike Races, and the list goes on.  So, I approached his “dare” with a bit of trepidation considering these past events.

I knew the Double Diablo had some serious elevation.  Nate casually suggested that it was “around” 15,000 feet of elevation gain, but that it was “fun” with “great views.”  Great Views? I thought with no small measure of skepticism.  Yeah, a great view of my front tire for hour after hour.  I kept that to myself.

I needed a project for my 50th Year on the Planet and I figured that a Grand Fondo was as good an excuse as any, so I signed myself up.  Many sleepless nights followed.  For the uninitiated, the double in Double Diablo stands for a double metric century for a total of 125 miles.  The ride organizer also offered a standard century course, a metric century course, and a forty-four-mile course as well.  The Diablo in Double Diablo stands for diabolical amounts of climbing.  The ride organizer recently changed the course.  Apparently, 15,000 feet of elevation gain was not diabolical enough, so they added another 2,300 feet (per my Wahoo Bolt) of elevation to confirm the ride’s diabolical pedigree.  I paced myself based on Nate’s 15,000 feet representation – more on that later.

Northern Kentucky and Southwestern Ohio provide plenty of climbing thanks to the glaciers that carved out the Ohio River Valley.  However, glaciers can only carve out so much elevation.  Garrett County, Maryland sits in the Appalachian Mountain range.  The region is variously known as the Allegheny Mountains, the Allegheny Plateau, and the Appalachian Plateau. I don’t care what you call it, mountains are mountains and that means lots of elevation.  Nate and I did plenty of century rides in preparation.  While our longest ride was 142 miles, we could only manage 7,000 feet of elevation gain. I went into the ride with no sense of how my legs would handle another 8,000 feet of elevation gain.  It was probably a good thing that I never checked the website.  I would have discovered that my longest ride was still 10,000 feet short.  Yikes.

So how did it go?

We started out at barely 50 degrees (good thing I packed arm warmers, leg warmers and a vest) and SUPER windy – the wind did not relent.  The wind farms we saw on the drive in should have been a clue.  The very first climb up Overlook Pass set the tone for the day: a ten-minute climb, much of which averaged a 11.7% grade.  I knew that Nate knew how many climbs we had ahead of us.  It turns out there were twenty-nine more.  Nate studies routes and finds those types of important details interesting.  I did not bother to ask.  I just could not digest that information.  I wasn’t even focused on miles.  Total feet of elevation gain, current power and average power were to be my only guides.  Maybe that was a mistake, maybe not.  Anyone who has raced a bike or been around bike racing is familiar with the term “burning a match.”  This was something entirely different.  You can burn too many matches in a race, and it may cost you a place or two, or ten.  But you finish the race.

I wasn’t worried about winning or scorching any timed segments (there were seven). I was worried about finishing.  More specifically, I was worried about finishing in under nine hours, because Nate did the 2018 route in eight hours and forty-five minutes (with only 15,000 feet of elevation gain).  So unwittingly I gave myself a fifteen-minute cushion to cover the extra 2,300 of elevation totally unaware that the routes were not the same (recall I did not check the website at any point before the ride).

Back to burning matches.  I think a better analogy is “making a withdraw.”  Every single climb was a withdrawal.  If you dug too deep, you might not have the funds to finish the ride 70 or 80 miles later.  So, I hit each climb not knowing how my body would respond two, three or seven hours later.  I tried to keep each climb between 240 and 300 watts, which was surprisingly hard because every single climb had a 12% to 15% ramp in it somewhere.  I was also running 53/39 up front and 11-28 on my cassette, which did not leave any opportunity to “spin to win.”  I also tried to keep my overall average power between 175 to 200 watts.

I was a little concerned when my average power was 220 watts for the first two hours.  We did finally settle in around the three-hour mark and I was able to bring average watts down to 200 for the rest of the ride.  From the three-hour mark to about the six/seven-hour mark I basically had the same conversation on loop in my head: How deep can you go and still finish? How deep can you go and still finish? How deep can you go and still finish? And so on.

At roughly six and half hours in we hit 10,000 feet in elevation gain.  I guessed – wrongly – that we only had five more thousand feet and I could manage a finish, maybe around nine hours?  After six or so hours the ride started to get fun because it seemed doable at that point.  The next actual 7,000 feet came much like the first 10,000 feet – long hard climb followed by a crazy fast descent.  One after another.  I would estimate that there was a scant twelve miles of continuously flat but very beautiful miles (turns out Nate was right about those views) that we tapped out along a river/large stream.

The Double Diablo is for a specific rider-type to state the obvious.  If you don’t “like” to climb, the ride may not be your cup of tea.  Regardless of your body-type or preferred riding style, a compact up front and a big cassette would have helped a lot.  I saw plenty of riders spinning out the climbs.  Disc brakes were another advantage of sorts, the descents were fun and crazy fast.  The descents were a temporary reprieve from the climbs – nothing more!

I would be remiss if I did not mention the aid stations.  I have never done a ride that was this well supported.  They had motorcycles all over the course.  I saw at least one motorcycle with a full toolbox aboard and a bike stand which he broke out at the final aid station.  The organizers even had spare tubes and tires at most aid stations.  Hammer Gels sponsored and supported the ride as well.

Some final thoughts.  Would I do the ride again?  That would have been a hard pass for a few weeks.  As I pen this blog, I can see a scenario where I would be back.  I could definitely see how this ride would become an annual rite of passage for Maryland and DC cyclists.  The Double Diablo is definitely a Bucket List kinda ride for the rest of us.

If you want to follow my cycling misadventures, you can find my blog articles here and my podcasting here.

Episode 7 of Pedaling Squares with Steve Magas, Esq., Ohio Bike Lawyer (Part 2)

Steve and I had plenty to talk about, so we broke this Episode out into two parts.  Enjoy Part 2 where we pick up where we left off – with a discussion of “impeding” under Ohio law.  Keep in mind bicyclists are motorists and part of traffic.  Just because a bicyclist is slower than traffic in most instances does not mean that the bicyclist is guilty of impeding the traffic behind him or her.  There is a seminal case that Steve argue through the Court of Appeals which changed the legal landscape for Ohio cyclists.  We begin our discussion with that case and move on to additional areas of Ohio law.

Episode 6 of Pedaling Squares with Steve Magas, Esq., Ohio Bike Lawyer

Bike Month is quickly coming to an end.  It seemed fitting to interview my friend, collaborator, and colleague, Steve Magas, Esq., the Ohio Bike Lawyer.  We had a wide-ranging discussion of all things bike laws in Ohio.  In fact, the interview was so wide-ranging we had to break it down into two episodes!  So please join me for Part 1 of my interview with Steve!

 

The Evolution of Three-Foot Laws for Passing Cyclists

It is Bike Month!  Steve Magas and I wrote an article for lawyers on Ohio’s and Kentucky’s Three Foot Laws for Cyclists in this month’s Cincinnati Bar Association’s monthly publication, The Report.  Here is a link to the SHORT VERSION of that article which starts on page 10.

The following is the longer version of that article for those who would prefer to see the full citation of the laws at issue.

Evolution of Three-Foot Laws for Passing Cyclists

By Bike Lawyers Chris Carville [[email protected]]
& Steve Magas [[email protected]]

Wisconsin was the first state to recognize the vulnerability of cyclists on its roadways and enacted the United States’ first Three-Foot Law in 1973 to protect riders.  Since 1973, several more states have since enacted such measures.

Thirty-three 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 three feet or more when passing a bicyclist.

North Carolina has a two-foot passing requirement for motorists.  However, North Carolina also allows passing in a no-pass zone so long as a motorist leaves four feet of clearance between the motorist and cyclist. [Sidenote: North Carolina is also one of the very few states that maintain a strict “contributory negligence” defense such that if a cyclist is hit by a car the motorist “wins” if the cyclist is even 1 PERCENT negligent].

Two states have laws that go beyond the three-foot zone of protection. Pennsylvania has a four-foot passing law. South Dakota enacted a two-tiered passing law in 2015.  South Dakota requires 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.

The following 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.

Eight states have 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.”

In the E.U., where cyclists account for a higher percentage of total traffic deaths [8%] than the U.S. [2%], France, Spain, Germany, Belgium and Portugal have passed laws requiring motorists to pass cyclists at a distance of 1.5 meters. There are also more aggressive laws and fines in the E.U. for distraction, phone use and other violations that put vulnerable users of roads at risk.

 Ohio’s Three-Foot Law:  R.C. 4511.27

Ohio enacted its Three Foot Law in 2017.  Prior to 2017, Ohio was in the “safe distance” passing law category.   Today, 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.

Note the language of the statute’s safe passing standard: “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 in Wisconsin: “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.”  Wis. Stat. § 346.075.  Wisconsin’s three-foot law contains clear and mandatory minimum.  Ohio’s three-foot law invites debate over situations where less than three feet could be “considered” safe.

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 could argue that the unique circumstances of his or her client’s case justified a two-foot or one-foot (or less) pass as “safe.”

In fact, the language drafted by the Ohio Bicycle Federation and submitted by was tougher – stating that a “safe distance shall not be less than three feet.” However, one legislator held up the passage of the Three-Foot bill until the langauge was changed to the current language.  Current Ohio law states [perhaps less clearly] that a three-foot passing clearance is the minimum distance to be deemed “safe.”

There are no statewide resources available that track citations pursuant to R.C. 4511.27 in Ohio’s eighty-eight counties.  Such a task would likely require Public Records Requests to some 900 LEO’s – law enforcement organizations.  We have no data as to how often Ohio’s Three-Foot Law is being enforced and with what level of success.  One concern expressed at the time of passage was the potential for the law to be used as a pretext to generate a “stop” of someone police simply wanted to hassle or talk to. No such data or research exists on this topic so far as we are aware.

In civil cases R.C. 4511.27 provides a standard to argue negligence per se in a case arising out of a crash where a cyclist is injured or killed by a passing motorist.

A cyclist always “loses” in a crash with a passing motorist.  Absent evidence of a dramatic and sudden swerve or change in direction of the cyclist, the fact that the crash occurred as a car was trying to pass a cyclist is damning evidence that the motorist violated R.C. 4511.27 and there is tremendous value in that.  The statute sets up a per se safety standard of a three-foot buffer for passing a cyclist.  If a cyclist can reach out and touch any part of a passing vehicle, the vehicle is clearly too close.

Although not explicitly stated, there is also a subtle burden shifting to the motorist to prove his or her pass was made at a safe distance when less than three feet was afforded the cyclist.  What we typically find is a suggestion by the motorist that she/he was passing “lawfully” at three feet or more when the cyclist “suddenly swerved” into the side or path of the car.  These “suicide swerve” suggestions can often be proved, or disproved, through the testimony of an expert in bicycle crash reconstruction.

Tension Between R.C. 4511.27 and 4511.55

AFRAP is short for “As Far Right As Practicable” and is a universal Bike Law term in the United States. Every state has some version of an AFRAP law. Ohio’s Three-Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists which is 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.

The word “practicable” is used over 400 times in the Ohio Revised Code… and is undefined throughout.

The word is used many different ways but is always used to reflect an imprecise situation.  R.C 4511.36 states that a right turn must be made “as close as practicable to the right-hand curb…”  R.C. 1567.39 requires roadways to be maintained “… as free as practicable…” from bottom irregularities and muddy conditions. Phrases like “as speedily as practicable” and determining if something is “reasonably practicable” abound.

Prior to the amendment of R.C. 4511.55 in the “Better Bicycling Bill” of 2006, we used to argue that “practicable” MUST mean “reasonable” and “safe.” We argued that the legislature would never mandate that cyclists behave in a way that was not reasonable and safe.

In 2006, the section was amended and the “C” section was added as an exception to the AFRAP Rule. In drafting 4511.55(C) our intent was to add these elements of “reasonable” and “practicable” but also to set out some common examples of situations cyclists encounter daily that would necessitate NOT riding “as far right as practicable” – such as parked cars, debris and the like. However, the last sentence of R.C. 4511.55(C) bears special attention. It is, frankly, the exception that swallowed the Rule.

R.C. 4511.55(C) states that one does not need to operate a bicycle AFRAP “…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.”

If you think about, and look at, the places that bicyclists ride bikes on Ohio’s roads you realize that virtually EVERY road in Ohio is “too narrow” to be safely shared by a cyclist and a motor vehicle side-by-side.

Keri Cafferty, a Florida graphic artist and bicycle advocate, created the graphic below which shows how a truck and bicycle cannot safely share a fourteen foot wide lane. Even when she allows only 40 inches of space for the cyclist, the truck cannot pass at three feet without leaving the lane. Virtually EVERY road on which cyclists ride in Ohio is less than fourteen feet wide. 4511.55(C) allows you to avoid ANY argument of AFRAP at all.

[SIDENOTE: If a cyclist is charged with violating R.C. 4511.55 there is also a constitutional argument that the traffic prohibition is “void for vagueness” and therefore unenforceable, but that makes for a separate and much longer article. See, e.g.,  U.S. v. Davis (2019), 139 S. Ct. 2319. (“In our constitutional order, a vague law is no law at all…”)}

Where a cyclist is injured as a result of a passing 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 to have avoided the crash.

A cyclist on the “roadway” is required to follow the rules of the road.  A cyclist trying to ride “as far right as practicable,” might end up weaving along the right-most portion of the roadway in a dangerous manner, and appear erratic and unpredictable.  Fortunately, R.C. 4511.55(C) 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” when it is unsafe or unreasonable to do so.  The safety valve of Subsection (C) offers a bit of definitional depth to what is “practicable” by allowing a cyclist to ignore the “AFRAP” law.

The “too narrow” provision of Subsection (C) is a secret weapon. We argue forcefully that virtually EVERY lane in Ohio on which cyclists are riding is “too narrow” to be shared. Certainly, a fourteen-foot lane does NOT allow “sharing.” Subsection (C) allows the cyclist to “Take The Lane” – a phrase used in teaching “transportation” cycling which means to choose a lane position that is adequately into the lane, and away from the edge, so as to make the cyclist more conspicuous to all traffic. Since virtually every lane in Ohio is “too narrow” to be shared, then virtually every lane in Ohio is a lane in which the cyclist can choose a safer lane position without being in violation of the AFRAP law.

Kentucky’s Three Foot Law: KRS 189.340

Subsection (2) of KRS 189.340 was amended in 2018 to include bicycles and further amended in 2019 to include electric low-speed scooters.  In its present form, 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.”  KRS 189.340(2)(a).

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.

Unlike Ohio, Kentucky does not have an AFRAP statute like Ohio’s Revised Code 4511.55 specifically addressing cyclist.  Rather, KRS 189.300 broadly states that “any vehicle when upon a highway shall travel upon the right side of the highway whenever possible[.]”  As discussed below, the “keep right rule” as applied to cyclists is set forth in  601 KAR 14:020 Section 7(3)(a) through (i).  The Administrative Regulations do not regulate “practicability” as seen in R.C. 4511.55.

So, the question of where the cyclist is riding on a Kentucky highway 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) applies, 601 KAR 14:020 Section 7 makes the use of bike lanes 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) which is, in laymen’s terms, a highway that provides an unhindered flow of traffic, with no traffic signals.  601 KAR 1:019(3) defines a “fully controlled access highway” as “a highway that: (a) gives preference to through traffic[.]”

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, Kentucky’s protective three-foot buffer would apply.

Even before the passage of KRS 189.340, the Kentucky Supreme Court recognized that a motorist can be guilty of negligence per se when overtaking a cyclist on Kentucky roadways.  In Previs v. Daily (2005), 180 S.W.3d 435, 436 the defendant approached the plaintiff cyclist from behind “driving a pick-up truck with an eight-foot bed and camper top [and] was pulling two flatbed wagons, making the total length of the vehicle approximately forty-eight feet.”  The Supreme Court noted that defendant admitted that he did not look in his rearview mirror when returning his pickup truck and trailers to the right lane as he was passing the plaintiff.  Id. at 438.  The Supreme Court was not sympathetic to defendant’s excuse for returning to the right lane to “avoid a potential collision with oncoming traffic” finding “[i]f the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189.340(4).”  Id. at 438.

The Supreme Court reversed the trial court’s failure to grant the plaintiff’s motion for directed verdict against the defendant and the case was remanded for a new trial.  Id. at 439.

However, when the case was tried on remand the entire focus of the new trial was the conduct of the cyclist and the Supreme Court held that a directed verdict against the motorist was proper.  Further, new jury instructions were utilized by the trial court that placed duties of care on plaintiff based on KRS 189.350, entitled “Assistance in passing or overtaking” between vehicles.  The trial court instructed the jury that where the plaintiff cyclist was being overtaken, she had duties to:

[A] To keep lookout to the rear for other vehicles near enough to be affected by the intended movement of her bicycle;

  1. If she was about to be overtaken and passed by the Defendant’s vehicle, to give way to the right in favor of the Defendant’s vehicle;
  2. If she became aware that the Defendant’s vehicle was passing or attempting to pass, to give the Defendant such assistance and cooperation as the circumstances reasonably demanded in order to obtain clearance and avoid an accident; and
  3. To exercise ordinary care generally to avoid collision with other persons or vehicles on the highway.

The second jury found plaintiff to be 50% contributorily negligent.  Some cyclists in Kentucky will refer to the Previs II case as giving rise to a cyclist’s “duty to give way” to passing motorists.

Neither Previs I, supra nor Previs II, 2006-CA-002243 have been cited in any cases since KRS 189.340 was amended to include three-foot buffers when passing cyclists in Kentucky in 2018.  One could argue that KRS 189.340 (a)(2) controls as the more specific regulation of vehicular passing (between motorist and cyclist) rather than the general regulation of vehicular passing (simply between “vehicles”). “[W]here there is both a specific statute and a general statute seemingly applicable to the same subject [the rule] is that the specific statute controls.” Bevin v. Beshear, 526 S.W.3d 89, 91 n.6 (Ky. 2017) (citations omitted).  This argument is further buttressed by the fact that KRS 189.340 was amended in 2018 as compared to the 1994 amendment of KRS 189.350.

Previs I, supra still stands for the proposition that the contributory negligence of a cyclist may be at issue in a passing or overtaking crash between a motorist and a cyclist.  However, KRS 189.340(2)(a) should govern over KRS 189.350’s “duty to give way” where the overtaken vehicle is a bicycle.

Conclusion

Cyclists are vulnerable users of Kentucky and Ohio roadways.

Kentucky’s 2021 numbers are still being tabulated.  Per Kentucky’s Annual 2020 Traffic Collision Facts Report, 337 cyclists were involved in crashes with motor vehicles.  The 2019 Report documented 330 cyclist-motor vehicle crashes.

Ohio averages about 1500 cycling accidents per year.  2020 and 2021 were not good years for cycling fatalities.  Ohio usually averages 16-17 cycling fatalities per year, but those numbers are skewing up.  In 2020, 21 cycling fatalities occurred.  This unfortunate figure is up further in 2021 with 28 cycling fatalities.

Both R.C. 4511.27 and KRS 189.340 are designed to do one thing: protect a vulnerable user of Ohio and Kentucky Roadways.  Each State’s legislature went about affording the three-foot differently, but the aim of the public policy is the same, and application of each statute should be made by judges and juries with the protection of vulnerable users in mind.

 

 

 

Pedaling Squares, Episode 5: John Gatch, Cofounder of Two Johns Podcast

In this Episode of Pedaling Squares, we talk with John Gatch.  John Gatch is a lifetime bike racer, bike mechanic, race promoter, race director, francophile, world traveler, EMT, husband, and father.  We talk about all of the above and get some intel on his VO2 Max – you will be impressed.  As an aspiring Podcaster, I was able to pick his brain about his podcast, Two Johns Podcast, which he co-founded with “John K.”, his long-time riding and racing mate.  The Two Johns Podcast is, to my knowledge, the longest-running Cycling Podcast on the interwebs.  Enjoy!

 

Pedaling Squares, Episode 4: Mitch Graham of Biowheels Fit Studio, Retul Master Fitter, IBFI Level 3 Fitter

Numb hands?

Neck Pain?

Knee Pain?

If you have any of these symptoms on your bike, you should consider a professional bike fit.  If you are uncomfortable on your bike, you won’t ride it.  Or, you will ride one of the other bikes in your garage or basement.  After all, the correct number of bikes is N + 1.

You might even find an extra couple of watts with a professional bike fit.

That is where Mitch Graham and Biowheels Fit Studio come in.  Mitch is a Retul Master Fitter and IBFI Level 3 Fitter.  Join me for a conversation with Mitch about all things Bike Fitting!

Pedaling Squares, Episode 3: Peter Wimberg, Cycling Coach, USA Cycling Level 1 Coach, USA Triathlon Level 1 Coach, Certified Personal Trainer

Pedaling Squares Through a MAMIL’s Life is a Youtube Channel about endurance sports, from a Master (er, middle-aged) Athlete’s perspective.  My focus is that of a MAMIL or a middle-aged man in lycra.

It is February.  December and January tend to be about setting racing and fitness goals – usually from the comfort of our couches. February through November (if you race cyclocross) is about execution.  But if you don’t have A PLAN to execute, you are never going to achieve those goals.  And goals are very, very individualized.  If we had the engine to race at the World Tour level, we would know that by now.

Endurance sports are about rounding us out as busy people with spouses, children, jobs, and extended families.  Our goals should reflect that reality.  Most of us did not race the World Tour (or compete in other professional sports), but we should still chase a dream or two outside of work and family life.

What is the best way to realize those athletic dreams?  Hire a Coach!

A Coach will individualize your training program, tailor that program to your goals, and mentor you along the way to achieving them.

And that is where Peter Wimberg comes in.  When he is not running a successful landscaping business, and when he is not playing the drums, and when he is not training and racing himself, he is coaching loads of endurance athletes which includes a MAMIL like me.  Peter does not need a lot of sleep.

You can find Peter’s coaching website here and his blog here.

Please enjoy an hour or so of our conversation about structured training, improving fitness as a Masters’ Level Athlete, and achieving individual goals in Episode Three of Pedaling Squares Through a MAMIL’s Life.

Typo In The Kentucky Administrative Regulations’ Definition Of A “Shared Lane”?

I will get to the typo but allow me to set the stage.

Too Close for Comfort

Most, perhaps all of us, have been on the receiving end of a “punishment pass” where a motorist intentionally violates your three-foot buffer provided by KRS 189.340(2)(a).   Regardless of intent, ANY violation of our three-foot buffer is always disconcerting and sends off alarm bells in our central nervous system releasing a cascade of hormones that leaves us simultaneously fearful and enraged.

So the question is: how much roadway or “lane” is necessary for a cyclist and motorist to “share” a lane?  I present this as a technical question and in terms of best practices for safe riding – they are two different things.

Ten Pounds of You-Know-What in a Five Pound Bag

When a one hundred and two-inch maximum width truck, trailer or bus passes a thirty-inch-wide cyclist (the AASHTO/American Association of State Highway and Transportation Officials design standard), the three-foot buffer required by KRS 189.340 cannot be technically maintained in a fourteen-foot lane.

On the other hand, a small SUV, such as a Ford Escape or Honda CR-V, are seventy-two to seventy-five inches in width, which would add another two feet of buffer to KRS 189.340’s three-foot buffer within a fourteen-foot lane. But that does not mean it is safe to pass a cyclist in that scenario.

“Taking the Lane”

Kentucky’s Administrative Regulation 601 KAR 14:020, Section 7, Operation of Bicycles, contemplates the scenario where a cyclist is riding on a lane that is too narrow to be considered a “shared lane.”:

(3) A bicycle operated in a highway lane with other vehicle types shall keep to the right unless:

(a) Preparing for and executing a left turn;

(b) Passing a slower moving vehicle;

(c) The lane is too narrow to be considered a shared lane. A bicycle may be ridden far enough to the left to prevent overtaking vehicles from attempting to pass in the same lane[.]

Many safe cycling advocates will refer to this as “taking the lane” where the cyclist rides in the center or just left of the center of the lane to prevent a motorist from passing within the same lane.  This is in fact safer for the cyclist.  KRS 189.340(2)(b) permits passing the cyclist left of center in this scenario:

(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.

Back to that Typo

So, where is that typo and why is it important? Because “taking the lane” is akin to a self-defense argument in that “taking the lane” is an affirmative defense that must be proved at trial. The administrative regulations contemplate that a cyclist will “keep to the right.” Taking the lane in a roadway that is “too narrow to be considered a shared lane” is the exception, not the rule. Just like refraining from assaulting someone is the rule unless you are acting in defense of yourself or in defense of someone else. In Court the defendant must prove the exception. This is what judges and lawyers refer to as an affirmative defense.

In taking the lane, the cyclist may be required to prove in Court that the lane was too narrow to be a shared lane.

Here is where that typo comes in. In order to “take the lane”, the cyclist must be able to prove that he or she was in a “shared lane.” 601 KAR 14:020, Section 1, defines a “shared lane” as follows:

“Shared lane” means a single lane of traffic less than fourteen (14) feet in width not including the gutter pan.

Less than fourteen (14) feet? Wait. What?!?

So a shared lane could be the width of a tractor-trailer (eight-and-a-half feet) because it is less than fourteen feet?  Or even worse, a shared lane could be the width of a Honda CRV, six-and-half feet, which is much less than fourteen feet?  How does a cyclist “share” an eight-and-half foot lane with a tractor-trailer?  The simple answer is that you cannot.

I need to give some attribution here.  The typo at the heart of this blog came to my attention at Cincinnati Cycling Club’s Annual Banquet last month.  Jim Lindner, a fellow cyclist, and Director of Safety and Education for CCC raised the issue with me. I have always glossed over two important words – “less than” and simply focused on “fourteen feet in width” as we all know that is the minimum width of lane that can accommodate a cyclist (thirty to forty inches wide) and a Honda CRV (seventy-five inches wide).  30 inches + 75 inches = 105 inches or 8.75 feet, which is less than 14 feet.

Perhaps the authors of 601 KAR 14:020 intended to define a shared lane, as a single lane of traffic greater than fourteen (14) feet in width, not including the gutter pan as such a lane could technically “share” a Honda CRV and a thirty-inch-wide cyclist with space to spare after a three-foot buffer.

Effect of the Typo?

One must keep in mind that the definition of a “shared lane” comes up in Kentucky’s Administrative Code, not Kentucky’s Revised Statutes.  The regulations are just that, regulations.  They do not have the force of law of the Revised Statutes, which are the laws of the Commonwealth passed by the Legislature.

The most likely scenario where “taking the lane” will come up is in a local traffic court.

In legal-speak, KRS 189.340, is Enabling Legislation. In KRS 189.287, which was entitled “Bicycle Safety Regulations and Standards,” the Legislature “enabled” the “Transportation Cabinet [to] promulgate[] administrative regulations[.]”

KRS 189.287 does confer a very limited benefit on cyclists who follow the regulations:

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.”

“Taking the lane” would likely fall under “method of operation”, so a cyclist would not be exempted from municipal or local regulations. Regardless, if a cyclist was charged with impeding traffic or failing to keep to the right under a municipal code or local regulation/ordinance/code, we could cite 601 KAR 14:020 in that cyclist’s defense in traffic court. However, we would have to explain the little typo in in 601 KAR 14:020’s definition of a shared lane.

Alternative Legislative Language

The League of American Bicyclists offers the following model law:

A person operating a bicycle upon a roadway at less than the normal speed of traffic shall ride in the right hand lane of the roadway subject to the following provisions:

If the right hand lane is wide enough to be safely shared with overtaking vehicles, a person operating a bicycle shall ride far enough to the right as judged safe by the bicyclist to facilitate the movement of such overtaking vehicles unless other conditions make it unsafe to do so.

A person operating a bicycle may use a lane other than the right hand lane when:

Overtaking or passing another vehicle proceeding in the same direction;

Preparing for a left turn at an intersection or into a private road or driveway;

Reasonably necessary to avoid conditions, including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or lanes that are too narrow for a bicycle and a motor vehicle to travel safely side by side within such lanes;

Approaching an intersection where right turns are permitted and there is a dedicated right turn lane, in which case a bicyclist may ride on the left-hand side of such dedicated lane, even if the bicyclist does not intend to turn right;

Riding on a roadway designated for one-way traffic, when the bicyclist may ride as near to the left-hand curb or edge of such roadway as judged safe by the bicyclist; or

Riding on parts of roadways set aside for the exclusive use of bicycles, including, but not limited to, contra-flow bicycle lanes, left-handed cycle tracks or bicycle lanes on one-way streets and two-way cycle tracks or bicycle lanes.

A person operating a bicycle shall not be expected or required to:

Ride over or through hazards at the edge of a roadway, including but not limited to fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards, or narrow lanes; or

Ride without a reasonable safety margin on the right-hand side of the roadway.

A person operating a bicycle in compliance with this section and not violating any other section of law is not impeding traffic.

The foregoing language achieves two important ends: (1) the judgment regarding safety is in the hands of the cyclist and (2) the width of a shareable lane is not a predetermined figure.

Practical Solution: Signage

The realities of “Taking the Lane” often result in obnoxious horn honking, unpleasant hand gestures, and grumpy motorists. Cyclists in Kentucky would be well-served with better signage, especially on single-lane roads that cyclists share with motorists. Better signage would protect cyclists and potentially diffuse angry encounters with motorists.

For example, the State of Delaware contemplates signage that permits cyclists to “Take the Lane” in a shared lane scenario:

The Bicycles May Use Full Lane (R4-11) sign (see Figure 9B-2) may be used in Delaware on designated bicycle routes where no bicycle lanes or adjacent shoulders usable by bicyclists are present and where travel lanes are too narrow for bicyclists and motor vehicles to operate side by side.

The Bicycles May Use Full Lane sign may be used in locations where it is important to inform road users that bicyclists might occupy the travel lane.

Section 9C.07 describes a Shared Lane Marking that may be used in addition to or instead of the Bicycles May Use Full Lane sign to inform road users that bicyclists might occupy the travel lane.

The authoritative and widely recognized Manual on Uniform Traffic Control Devices for Streets and Highways contemplates signage that permits cyclists to “Take the Lane” in a shared lane scenario:

From an advocacy perspective, a sign can reduce a topic that merits almost two thousand words in this blog article down to just four words!

Final Thoughts

The Kentucky Administrative Regulation and the Model Law text above both address criminal or traffic violations for “impeding” traffic. However, they can be even more important than avoiding a fine or traffic conviction. Regulations, the Kentucky Revised Statutes, and Model Laws can be the basis for jury instructions when the stakes are much, much higher – in a personal injury or wrongful death lawsuit where a cyclist is injured or killed.

If you or anyone you know is charged in Kentucky with impeding traffic or failing-to-keep-right in a municipal or local traffic court, we are here to help. Should a typo keep you from “taking the lane” where the lane is narrow? No.  Safety first!  If you find yourself in Traffic Court? That’s what lawyers are for. You can find me at [email protected]. Or by phone at 859 380 8309 and 513 600 8432.

Pedaling Squares, Episode 2: Dawn Weatherwax, RD, CSSD, LD, ATC, CSCS, MET 1

What is Pedaling Squares?

Pedaling Squares Through a MAMIL’s Life was intended to be a podcast about two of my favorite things: Bikes and Beer.  Someday soon we will get back to my love of beer.  Suffice it to say that coordinating breweries, brewmasters,  and nearby Strava Segments was harder than I realized.  When I have more time on my hands I will get back to those projects.  My first episode was a COVID-inspired attempt to get things rolling without the benefit of actual brewmasters:

Between a pandemic and opening a law firm, my podcasting aspirations took a back seat to earning a living and riding my bike.  So I am back, with a slightly new approach to podcasting. Pedaling Squares will continue to be about one of my two favorite things: riding a bike.

More broadly, the Channel will be about endurance sports, from a Masters (er, middle-aged) Athlete’s perspective.  My focus will be that of a MAMIL.  For the uninitiated, a MAMIL is a “middle-aged man in lycra.” The Channel is intended to have a broad audience of endurance athletes, mostly middle-aged, but I will not be able to resist the pull of the bike.  So I apologize in advance for that likely drift.  Perhaps a better way to characterize the channel is podcasting for an audience of master-aged cyclists that has broader application to most endurance athletes.

So with that introduction out of the way, my first video of 2022 tackles a topic that is on most athletes’ minds in January of any year: the dreaded weight gain over the holidays.  For the less-monastic among us, the weeks between Thanksgiving and New Year presented a well-earned opportunity to spend time with loved ones that usually involved delicious food and an extra beer or two, or more…  Those extra calories lead to extra pounds.  Over the years I have learned to accept this reality rather than fret about it.  They call it an offseason for a reason.  I, for one, don’t make a living racing a bike and I suspect you don’t either.  So, you got to live a little – within reason.

Cycling is a sport replete with eating disorders at its highest level.  And maybe calling them eating disorders is a bit of a stretch.  Guys and gals who get paid to ride are acutely aware of a Mathematical Reality: extra pounds means lower power-to-weight ratios and lower power-to-weight ratios can mean slower times.  So strict dieting is a reality for those in the rarified air of professional cycling.  But that does not mean nutrition is not important for the rest of us – especially those of us who are chasing podiums and leaderboards on Strava!  Your power-to-weight ratio is a very real reality to any cyclist going uphill.  For runners, swimmers, and any other athlete in a timed event, also known as a race, pre-race and race day nutrition is important.  All of this brings me to my first guest on Pedaling Squares, Dawn Weatherwax.

Dawn Weatherwax, RD, CSSD, LD, ATC, CSCS, MET 1

Dawn is my Nutritionist, so let me plug her from experience. Dawn a Licensed Dietitian with a specialty in Sports Nutrition and Founder of Sports Nutrition 2Go.  She is also a Board Certified Specialist in Sports Dietetics, which is the premier professional sports nutrition credential in the United States. She is the author of Three Books: The Complete Idiot’s Guide to Sports Nutrition, Sports Nutrition Guide for Young Athletes, and The Official Snack Guide for Beleaguered Sports Parents.  And, she is a frequent presenter on Nutrition at a local and national level.

In this interview, we tackle “hack” diets and their limitations for endurance athletes.  And from a master’s athlete’s perspective, we talk about the importance of calculating one’s actual resting metabolic rate.  Many websites use a logarithm with assumptions about one’s age.  While a given logarithm may be accurate based on ages 15 to 35 years old, a significant amount of variability in the population starts to set in after 40, 50, 60, and so on. This is especially the case in lifelong athletes.  Many of the canned logarithms may be underestimating your resting metabolic rate.  Dawn has the hardware to calculate an actual, not assumed resting metabolic rate – the rate one is consuming most of his or her calories.  Strava, Garmin Connect, Wahoo, and Training Peaks can tell you what you burned during a given workout – that is the easy part.  Relying on a website to calculate how many calories you are burning while at work and asleep can end up being an exercise (pun intended) in guesswork. We also discussed the importance of measuring fat and lean muscle tissue and the effect of age on both and more.

Dawn brings a wealth of experience to the discussion.  My only limitation was Dawn’s time.  She promised to come back for more, so if you have ideas for future points of discussion please leave them in the comment section.

If you want to reach out to Dawn directly you can find her on all the socials: Twitter, Facebook, Linkedin, and Instagram.

So, please wake up your Smart Trainer or Treadmill and have a listen to my conversation with Dawn:

You know the drill: please don’t forget to like and subscribe!

 

Bike Trails in Autumn and During a Pandemic

With Autumn comes shorter days and time changes.  I prefer to refer to October and November as “Autumn” because it takes the edge off of the cold and wet riding conditions of “Fall.”  “Autumn” also invokes imagery of beautifully changing leaves, clear sunny skies, crisp air, apples (or pumpkins), and truly epic rides where you enjoy a long ride without thinking about a race around the corner, worry about checking off an interval workout or checking your watts.  Stated plainly, riding in Autumn is just fun.

Shorter riding windows have a tendency to force some riders onto the relative “safety” of bike trails.  Well, the last two years have redefined safety in all circumstances as we deal with a global Pandemic that affects us as both regular citizens and as cyclists.  I found this Rails-to-Trails video that gives you some insights into how those charged with the care and maintenance of our bike trails during a Pandemic:

Some time ago I wrote about the differences and similarities of riding on Kentucky and Ohio bike trails.  It might be worth a review as you venture back onto bike trails this time of year:

Cycling Injuries on Ohio and Kentucky Bike Trails – Do You Have a Case?