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!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Callahan Cemetery as Shown on National Geographic Topo Map

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

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

Strava Screenshot of Callahan Cemetery from 2917 Edition of Death March

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

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

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

KRS 189.340 (2) states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Bicycles or motor scooters[.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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