Posted by Chris Carville On November 29, 2022 at 11:18 am
Join me for a conversation with Wade Johnson, the Executive Director of Tri-State Trails. Tri-State Trails is a nonprofit whose “mission is to connect people and places with a regional trail and bikeway network that enhances vibrancy and equity in our community.” Wade and his tireless coworkers: advocate for connecting and expanding trail and bikeway networks; collect and maintain data on trails; provide technical assistance to local governments and community groups; connect trail planners, trail managers, advocates, and users to share best practices; and promote and celebrate existing trails in the Tri-State region.
We discuss Wade’s bicycle journey and how it brought him to Tri-State Trails; the current “Beechmont Connector”; future planning; and safe planning practices.
Posted by Chris Carville On October 12, 2022 at 9:32 am
So, if I was a better scheduler, I would have had Will Leet of Licking Valley Velo on sooner! Evening group rides are winding down as we lose daylight. Licking Valley Velo’s now famous Tuesday Night Worlds is winding down too. However, you can still join the folks at Licking Valley Velo for Saturday morning rides.
Licking Valley Velo is the fasted growing cycling club/team in the region. Licking Valley Velo may be the fastest-growing club/team in the country! And there is a reason. These folks love their bikes and love their beer. If you want to get into more group rides, if you want to improve your skills and comfort levels in a group ride setting, and if you like beer and time with friends, check out Licking Valley Velo based out of Newport, Kentucky. If you are fast, there is definitely a home for you too!
Posted by Chris Carville On August 22, 2022 at 7:29 pm
June 22, 2022, could have been a very fateful date for me and my family. I came very close to having that date on the righthand side of my tombstone. My August Podcast is dedicated to my June 22, 2022 crash. Visual aids help tremendously when explaining anything moving and on two wheels so I would encourage you to follow the YouTube Link below for the specifics of the crash:
As I alluded to in the Podcast above, I experienced some back pain shortly after the crash. I do have a history of back pain due to “left-sided paracentral disc protrusion [that] flattens the left L5 [nerve] root.” As a result, I am no stranger to steroids, Prednisone in particular, to deal with pain flare-ups. I will not bore the reader with my medical history. Suffice it to say the low back pain associated with these flare-ups borders on excruciating and obviously keeps me off my bike as I cannot stand up or move until the steroids have run their course. The steroids basically act like super anti-inflammatories, allowing for movement in the impacted discs/vertebrae.
A curious thing happened while I was on this course of medication. Serious. Negative. Talk. Awful stuff. And when I say awful, it was stuff that you would not even say to your worst enemy kinda awful. I understand the power of the mind and both the power of positive reinforcement and the power of negative reinforcement. However, I literally could not muster a positive thought.
We all have an angel on one shoulder and a demon on the other. This felt like my angel had gone on vacation and my demon found himself a megaphone! So, having nothing else to do (this course of steroids and forced inactivity was a record-breaking three weeks), I grabbed my iPhone and simply punched in “Prednisone and mental health” and lo and behold, there was article after article on mental health and steroid use. The Mayo Clinic advised that “the most commonly reported corticosteroid-induced psychiatric disturbances are affective, including mania, depression, or mixed states.” Um, Bingo!
Fortunately, my symptoms were short-lived and dissipated within a relatively short period of time. I was unable to find any strong research on what percentage of the population is disposed to such symptoms when using steroids. All I know is that I fall into that category of patients, which both helps and haunts me should I ever (and it is most likely) need another course of steroids.
Both of my personal episodes in PTSD (detailed in the Podcast) and Mania served an educational purpose in my life. I have had plenty of clients experience the very real consequences of PTSD following a crash. I was already aware of how the mind can react to the stresses of a crash. But I had never experienced it for myself.
The mania I experienced with steroid use was a bit of an epiphany as I was able to connect the dots to similar symptoms as I looked back on past episodes of steroid use. But what stands out most to me is that these conditions are very, very real, and often, totally outside of the control of the afflicted person.
With the steroid use, there was solace as I lay in bed knowing that the symptoms would pass. For many, the symptoms have nothing to do with medication and may never end – a cross that is born for a lifetime.
Endurance athletes are conditioned to “push through the pain” or “tough out” a workout or race. While these approaches may make for success in achieving athletic goals, they are not effective in addressing mental health conditions that are external to the athlete or the patient. Simply stated, there are mental conditions that are no fault of the patient and often require the aid of professionals. I am glad to see the stigma around mental health dissipate over my lifetime. And I am thankful for the insights on a personal level gained over these last few weeks.
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.
Posted by Chris Carville On June 30, 2022 at 9:46 am
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.
Posted by Chris Carville On May 27, 2022 at 10:43 am
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!
Posted by Chris Carville On May 19, 2022 at 9:35 am
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.
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 theroadway 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:
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
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:
Travelling at the legal speed;
Preparing for or executing a left turn;
Passing a slower moving vehicle;
Avoiding a hazard;
Avoiding the door zone of a parked vehicle; or
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;
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;
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
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 PrevisII 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.
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.
Posted by Chris Carville On April 27, 2022 at 7:30 am
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!
Posted by Chris Carville On March 29, 2022 at 9:05 am
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!
Posted by Chris Carville On April 2, 2021 at 10:58 am
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.