Bicycle vs. Auto Accidents - what is the bicycle 'right of way?'

Road markings have frequently been problematic both for the designers and users of the markings (auto, truck, motorcycle and bicycle drivers), and now it appears problematic for a Portland, Oregon traffic court judge.

Consider, for instance, you can't cross a double yellow line, except when you can, like turning left into your driveway from a 2 lane suburban or rural road. Driving up to Seattle from Portland, a driver with passengers will notice the HOV carpool lane, separated from the other lanes of traffic with a single thick white line. Are you allowed to cross that thick white line into the carpool lane to take advantage of it at any time? There doesn't seem to be any way to get into that lane, otherwise, unless you catch it when it first appears. Here's the Washington state Department of Transportation instructions for getting into the HOV carpool lane in case you are unsure of what the roadway markings mean.

Drive on the Long Island Expressway in New York and the HOV lane is separated there by a double white line, with perpendicular cross lines every few feet between them, more clearly indicating the illegality of crossing them perhaps. Merge openings which break the lines happen every few exits in New York, which is quite different then the HOV road markings in Washington state.

Most auto drivers know that it's illegal to change lanes while driving a car in an intersection. Every auto driver knows that, but are there traffic lanes in an intersection? The painted lane lines don't continue within the intersection, not in Oregon, and pretty much all US states seem to follow this pattern. But to assume the lanes don't continue would go against both common sense and an accepted understanding of traffic law. It may not be common sense, but also, you may get a ticket for changing lanes in an intersection if you didn't already understand that your lane or direction of travel still continues through the intersection.

So what about a bike lane? According to a Portland, Oregon traffic court judge in a December 2009 ruling, a bike lane has no existence within an intersection, and thus, a bicyclist has no rights within an intersection. This seems unreasonable to nearly everyone, especially the biking community of Portland, particularly in light of the recent additions of the green bike safety boxes and green bike lanes which do in fact continue into the intersection as painted green lanes. These continuing green lanes were put in by the city of Portland not to add bike lanes in intersections, but to make drivers more aware of the bike lane existence due to two tragic fatal right hook auto vs. bicycle accidents resulting from a truck and an SUV turning right into the path of the bicycle in less then a month in 2007. October 11, 2007 on Burnside, the cyclist was only 19 years old and though she had the 'right of way' some witnesses also said she was in the truck driver's "blind spot." And on N. Interstate the second fatality in October 2007, even though many bicyclists would think the bicycle had the 'right of way,' witnesses said, "it was nobody's fault." The bicycle right hook accidents troubled the cycling community and roadway designers alike resulting eventually in the green bike boxes and extended painted green bike lanes through the right turning lane area of many designated intersections to help auto drivers with the awareness that the bike lanes existed.

However, in December 2009, the Portland traffic judge made his ruling of the non-existence of bike lanes in a frighteningly similar accident, which thankfully did not result in death, but did result in injury.

*June 2014 Portland State Univiersity transportation research on the effectiveness of the green bike lanes, not just in Portland, but the research team investigates and studies bicycle infrastructure in D.C., Chicago, Austin, Milwaukee, San Francisco, in addition to Portland.

In June of 2009, the bicycle rider was riding on SE Hawthorne in the bike lane cycling across 10th Avenue when the driver on bicyclist's left admittedly made a last minute decision to right turn and slammed into the bicycle rider, knocking the bicyclist to the ground. The bicycle rider was fortunately wearing a helmet and thus avoided any serious head injury when her head impacted into the pavement with this unexpected collision. Portland police responded to the accident scene and cited the car driver for Failing to Yield to a Bicyclist in a Bike Lane (ORS 811.050).

The traffic citation case went to trial on December 21, 2009, where the Portland traffic court judge found the driver not guilty because as the law is written, the driver is guilty when, “the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, electric personal assistive mobility device, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane.”

The Portland traffic court judge concluded that because the painted indicators of the bike lane cease in the intersection, that the bicycle lane also ceases to exist within the intersection, and with it any right that the cyclist may have. The Portland traffic court judge claimed to be, "not interpreting the law, but reading it and ruling with it as it was written." A surprising ruling especially considering the driver admitted to not looking before she turned and given that the Portland Police also cited the driver at the scene of the accident.

A bicycle lane is defined under Oregon law as:

801.155 "Bicycle lane"
“Bicycle lane” means that part of the highway, adjacent to the roadway, designated by official signs or markings for use by persons riding bicycles except as otherwise specifically provided by law. [1983 c.338 ยง23]

The Portland traffic judge's ruling overturned the Portland police officer's citation in the end. Had the officer also charged the driver with ORS 811.060 (Vehicular assault of bicyclist or pedestrian), which covers any unsafe or reckless driving, "in a manner that results in contact between the person's vehicle and a bicycle operated by a person, a person operating a bicycle or a pedestrian," and, "the contact causes physical injury to the person operating a bicycle or the pedestrian;" and is a much more serious charge against an auto driver, but the traffic court judge would not have been able to overturn the citation of the Portland police officers.

Since there is no appeal for an aquittal in Oregon traffic court, the case does not set a binding legal precedent. Civil court was the only next alternative for the bicyclist, which the cyclist decided against even though not physically completely whole from the accident, but well enough to want to move on. If you've ever been seriously injured in an accident, you can understand the bicyclist's decision to put this incident behind her as fighting for justice in court takes a lot out of the injured, even with a skilled trial attorney at their side.

Update 2018 - 2019

The Bulletin (Bend / Central Oregon) October 16, 2018

FedEx driver not guilty in accident that killed cyclist
Judge rules man killed in intersection was not protected by bike lane

A Deschutes County Circuit Court judge on Tuesday ruled a cyclist hit and killed in an intersection by a FedEx truck did not have the protection of a bike lane [...] Prosecutor Andrew Steiner said many people today do not treat bike lanes like vehicle lanes, though they are. [...] Steiner attempted to make the case that bike lanes continue through intersections, citing Oregon Department of Transportation guidelines for road construction and recent court cases and legislation in Oregon.

And now you can help Oregon House Bill 2682 become law by letting your Oregon state representatives know what you think about HB 2682, the "bike lane" bill.

People For Bikes have a handy form to assist you if you wish to use it. Bend Bikes also has the contact info for emailing their local Oregon representative (who is not supporting the Bill as of February 27, 2019) and good explanation of the events that have unfolded.

Here is an op-ed from the co-sponsors of this bike lane bill Oregon state representatives from Portland and Beaverton:

Schouten, Nosse: Let's protect bicyclists at intersections

State legislators say biking is eco-friendly option and Oregon should do more to be bicycle-friendly

March 27, 2019

This is madness. To avoid visual confusion, we don't paint every lane line in our intersections. And nobody claims automobile travel lanes don't exist within an intersection. So the failure to acknowledge that bike lanes continue through intersections is both strange and troubling. Now, to correct the confusion, we are co-sponsoring legislation (House Bill 2682) that will explicitly extend this legal protection to cyclists crossing intersections.

And happy to update that as of April 16, 2019 this Oregon House Bill 2682 which "clarifies that bicycle lane continues in and through intersection where markings are interrupted by intersection" has been approved by its Oregon Legislature Joint Committee On Transportation. If the bill is becomes law, it will ammend Oregon Revised Statute 801.155 Relating to bicycle lanes:

"Bicycle lane" means that part of the highway, adjacent to the roadway, designated by official signs or markings for use by persons riding bicycles except as otherwise specifically provided by law. Where the markings of a bicycle lane are interrupted by an intersection, the bicycle lane continues in and through the intersection.