Marked and Unmarked Crosswalks in Oregon: Our Take on ORS 801.220

On January 4th, 2019—less than a week ago—a pedestrian here in Portland was killed by a motor vehicle while crossing the street at the intersection of SW Salmon and Park. This intersection only features one marked crosswalk. According to the statement released by police, the pedestrian was in an “unmarked crosswalk” when he was hit.

While we fully support proposed measures to make intersections like these safer for pedestrians, including incorporating additional marked crosswalks, we also think it is important for everyone—pedestrians, bicyclists, drivers, law enforcement and legislators—to think further about the implications of the existing laws that define and identify crosswalks, particularly ORS 801.220. There seems to be some confusion about whether the existence of marked crosswalks at an intersection negates or removes any crosswalks that aren’t marked at that intersection—but we don’t believe that is the case.

The view we have always taken of ORS 801.220 is that it does not “take away a crosswalk at another corner” but instead that a marked crosswalk location denotes the crosswalk for that particular crossing. Consequently, at the four corner intersection of SW Salmon and Park, there are four crosswalks. Unless there is signage, like at the west end of the Morrison Bridge on the east crosswalk over the foot of Washington Street that says “No Pedestrian Crossing” or something like that, ORS 801.220 is not a crosswalk “trimming” or elimination statute. Note that the actual language of ORS 801.220 states: “Whenever marked crosswalks have been indicated, such crosswalks and no others shall be deemed lawful across such roadway at that intersection.”

It is important to note the plural use of the word “crosswalks” not “crosswalk”. That is intentional. It is also important to note that where such “crosswalks” exist “no others” shall be deemed lawful. Clearly this indicates that marked crosswalks denote the crosswalk where such markings exist—but where no such markings exist then unmarked crosswalks still exist for the other 3 unmarked crossings on a four corner intersection. See how ORS 801.220 defines an unmarked crosswalk (the parameters for which, by the way, are very expansive, 6′ to 20′ wide!) here.

Further, “such roadway” “at that intersection” is a different part of roadway from the crosswalk where the collision occurred, separated by my guess of about 20′ or so. I am not saying PBOT could not close that unmarked crosswalk (the Oregon Vehicle Code provides cities the legal authority to do so), but in my view it would require signage, and would be a bad idea.

You can find several aerial pictures of the intersection, along with information about future pedestrian-safety changes planned for SW Salmon, in this detailed article on the subject of this preventable tragedy by Jonathan Maus of Bike Portland.

Right of Way in the Crosswalk: Legislative Solutions to Making the Cars Stop Without Entering the Killing Zone

by Ray Thomas, Oregon Bicycle and Pedestrian Attorney

I. INTRODUCTION

Why did the man on the curb with the dog glare angrily at the approaching motorist?
Why did the elderly lady with the bag of groceries look wistful?

Why did the child standing on the curb look confused?

What do these people walking all have in common besides trying to safely cross the street? The answer is confusion and frustration over where they stand, or don’t stand, with approaching motorists to claim their legal right to cross the street in a crosswalk.

Every state provides the pedestrian with some form of right of way to cross the street in a crosswalk. While the specific provisions vary, every state provides pedestrians with some form of right of way in crosswalks. The universal problem for people on foot (or non-motorized wheels) is how to make approaching traffic stop without entering the “killing zone” in front of traffic before crossing.

Confusion about how to make the cars stop, and how to get drivers to follow the law and law enforcement to enforce pedestrian crosswalk laws, adversely affects everything from parents’ decisions on letting children walk to school, to city policies on how to best enforce pedestrian rights. To the extent that pedestrians and drivers are confused about when a driver is required to stop for a pedestrian in a crosswalk, drivers are emboldened to refuse to stop and pedestrians are more reluctant to exercise their legal rights of way to cross the street.

What is needed is a clearer signal requiring vehicles to stop. Blind and hearing impaired people carry a red cane, school ground crossing guards use a flag or hand signal. These visible signals provide a clear intention, and a basis for law enforcement to ticket offending drivers, if the signal is visibly displayed and folks don’t stop.

But for pedestrians in virtually every state, confusion over how to make the cars stop, fear of getting hit, and law-enforcement reticence to enforce vague laws to cite drivers in the absence of a collision, combine to create a nonfunctional system at non- signalized intersections.

The practical solution is legislative enactment in each state of a “legal trigger” that allows the pedestrian to make the cars stop without having to step into harm’s way. This can be achieved by adding a simple definition that “crossing the roadway in a crosswalk” (and the legal requirement for vehicles to stop), begins when the pedestrian so much as places the tip of one foot off of the curb onto the roadway (or for that matter a cane tip or shopping cart wheel) without having to stand in front of approaching cars until they stop. In addition to increasing clarity, this definition removes uncertainty in enforcement of crosswalk laws, because it is clearly visible when a driver has disregarded a pedestrian’s lawful attempt to make the car stop.

Giving people a legal tool to make approaching traffic stop BEFORE stepping in the street creates a real pedestrian revolution including more confident pedestrians in crossing the road and a tool for teaching practical walking skills to school children, commuters and other persons on foot.

Accompanying this article is a survey of the pedestrian laws all 50 states, created in 2012 and updated in 2013. The survey was created by categorizing the pedestrian laws found in the Uniform Vehicle Code, using the NHTSA Resource Guide on Laws Relating to Pedestrian and Bicycle Safety as a starting point. We then found the pedestrian statutes in each state and categorized each state’s laws into their relative Uniform Vehicle Code counterpart. The survey is a Microsoft Excel spreadsheet, with the columns being the categories of laws and the rows being the states in alphabetical order. Now, for instance, a user can compare all 50 states’ laws on pedestrian rights of way in crosswalks, or easily locate a single state’s law.

II. BACKGROUND AND HISTORY

Oregon Walks (formerly Willamette Pedestrian Coalition), a broad-based collection of citizens and government walking rights advocates, had twice attempted to solve the “pedestrian on the curb crosswalk dilemma” by working to pass a pedestrian “hand-signal bill”, but failed to gather sufficient votes in the Oregon Legislature in both 2007 and 2009. Despite the state’s excellent crosswalk law requiring that motorists stop and remain stopped (also advocated for by Oregon Walks) when a pedestrian was crossing the roadway in a marked or unmarked crosswalk, it was common to see pedestrians standing on the curb or in the gutter with cars whizzing by them. Oregon Walks began looking for other solutions to provide pedestrians a way to make the cars stop without having to step in front of approaching traffic.

While the Oregon law (1) (ORS 811.028) provided pedestrians with the strongest theoretical legal rights to cross since the invention of the internal combustion engine, it left pedestrians in the Stone Age competing with the wooly mammoths of the roadway when actually crossing the street. (See, “The Ebb and Flow of Pedestrian Rights in the Crosswalk”, Oregon Pedestrian Rights, A Legal Guide for Persons On Foot, p. 17-25 (2009)).

While the law gave the pedestrian a powerful legal right of way in both marked and unmarked crosswalks (2), the problem was HOW to trigger the right of way without moving into the zone of danger in the roadway. If pedestrians must be “crossing the roadway” in the crosswalk per ORS 811.028 then the man, the lady with the groceries and the schoolchild standing on the curb have yet to trigger ORS 811.028. Even if they put a foot off the curb, they may not have triggered their right of way. It was not until they were “crossing the roadway in a crosswalk” that the law granted a legal right of way to safe passage. Because it feels unsafe to walk out in front of speeding traffic, pedestrians stand at the curb, often looking forlorn, wistful or angry as they watch cars approach and pass. If the pedestrians could only exercise their legal right of way without having to step in front of speeding traffic then pedestrians could signal their intent to cross, watch as approaching traffic slows and stops for them, and then continue. But the hand signal had failed twice to garner sufficient votes.

What does “‘crossing the roadway” mean to a driver in an approaching car (or police officer trying to enforce the pedestrian law)? The word “crossing” and the term “crossing the roadway” (3) are not defined in Oregon Statutes. But “crossing” to most people means something like “the act of crossing” and suggests the act of taking steps in the road. But to take steps in the road means leaving the safety of the curb behind and going out into what could be the impact zone if a driver does not or cannot stop in time. Few pedestrians, or parents instructing their school children on how to safely cross the street, would advise anyone to move across the road without knowing that approaching traffic is going to stop. This dilemma is precisely why so many pedestrians are frustrated when trying to cross streets where there is no “Walk” signal to help them get started.

III. DEVELOPMENT OF A SIMPLE DEFINITION

The law needed a simple definition for “Crossing the Roadway” that included the situation where the pedestrian places a foot (or cane tip or wheelchair wheel) sufficiently into the roadway to advise approaching vehicles that they must come to a stop and stay stopped while the pedestrian safely crosses the road, but that also allows the pedestrian to stay far enough out of the path of path of approaching traffic so as not to be hit by the heedless motorist.

What was missing was a legal definition of “crossing the roadway” allowing pedestrians to trigger the right of way with a single “signal” movement communicating intent to cross without placing the pedestrian in danger of being hit.

If the lady with the groceries, or the child going to school could place a foot off the curb where approaching cars could see, slow, and safely stop before proceeding, they would be exercising their legal rights without stepping into the danger zone.

And; of course, parents would be far more likely to encourage their children to walk if they knew their kids could cross intersections on neighborhood streets without placing their lives on the line to make the cars stop.

A simple legislative fix would involve adding a definition of “crossing the roadway” to the law that would provide a clear way to trigger the existing crosswalk right of way.

IV. OREGON WALKS AND THE PEDESTRIAN MOVEMENT

The Oregon work group took a “less is better approach”. We decided the hand-signal bill efforts had failed in the legislature because the hand signal sounded like it was radically changing the balance of power on the roadway. We decided that instead of creating a different new pedestrian action like the hand signal, we could accomplish the same legal result by incorporating the trigger for the right of way into the definition of “crossing the roadway”. We created a succinct definition of what “crossing the roadway in a crosswalk” meant that included merely placing a part of, or extension of, the body, including a bicycle, off the curb as follows:

For the purpose of this section, a pedestrian is crossing the roadway in a crosswalk when any part of the pedestrian’s body, wheelchair, cane, crutch or bicycle moves onto the roadway in a crosswalk with the intent to proceed.

ORS 811.028 (4).
The logical import of the definition meant that approaching traffic had to stop if the pedestrian merely placed a toe into the crosswalk, like one would to check the temperature of the water. The law would change the trigger for the crosswalk right of way and not expand it in any way. Pedestrians would still be required by law to yield the right of way to traffic outside of the crosswalk4.

We argued legislators did not need to worry that the proposed law would make any confusing changes in Oregon traffic law. And even in a crosswalk, absent a “Walk” signal, the pedestrian is not supposed to start walking across the road if an approaching vehicle is “so close as to constitute an immediate hazard”:

A pedestrian commits the offense of pedestrian failure to yield to a vehicle if the pedestrian . . . suddenly leaves a curb or other place of safety and moves into the path of a vehicle that is so close as to constitute an immediate hazard. ORS 814.040(1)(a)

The common sense basis for this “Immediate Hazard” law is that pedestrians should not cause approaching vehicles to have to skid to a halt and risk a loss of control by heedlessly walking out into traffic without regard for their speed or distance.

We argued that the new definition clarifies what it takes to trigger the pedestrian right of way in the crosswalk. As drivers and pedestrians become educated and learn to follow the new definition, it would be easier for pedestrians to exercise their legal right of way without stepping into the paths of speeding vehicles, easier to teach safe crossing practices to school children and elders, and easier for law enforcement officers trying to enforce the law.

We called the proposal a “Crosswalk Safety Bill” and began talking about it with advocacy groups, who knew all too well that older adults, parents with children, and people using a wheelchair, (or other assistive device) could only safely enter the roadway after oncoming traffic actually stopped. For people with mobility challenges, the importance of signaling intent to exercise legal right of way from a place of safety cannot be overstated. When we spoke to law enforcement and other user groups we emphasized that even with the proposed law change, existing law would still hold a pedestrian legally accountable if they “suddenly leave a curb or other place of safety and move into the path of a vehicle that is so close to constitute an immediate hazard”. ORS 814.040(1)(a).

We created a talking points summary and Oregon Walks Director Stephanie Routh led volunteer groups in making presentations to law enforcement and advocacy groups. Soon, our coalition included the Portland Commission on Disability, Hillsboro Police Department, Disability Rights Oregon, Portland Police Bureau Traffic Safety Division, Oregon Association of Area Agencies on Aging and Disability, Elders in Action, Bicycle Transportation Alliance, Coalition for a Livable Future and Multnomah County Disabilities Services Advisory Council.

As we previewed the proposed legislation with automobile and trucking industry representatives, it was clear it would be difficult to oppose because it merely placed the trigger for the right of way on the roadway next to the curb, a natural and logical extension of the spirit of the existing crosswalk law. Our pedestrian coalition collected witness testimony for legislative hearings from elders, the disabled, educators and victims of crosswalk collisions. We had such a broad-based coalition that no one could develop a logical collection of folks to oppose us unless it was the “Association of Dangerous Heedless Drivers” and no such organization existed. Our law passed through committee hearings without organized opposition, was passed in both bodies of the legislature and went into effect in June 2011.

In the months since we have already observed many pedestrians making use of the “trigger” by placing a foot or bicycle wheel off of the curb onto the roadway surface. Oregon, (like most states) prohibits vehicular traffic from passing other vehicles stopped for a pedestrian in a crosswalk (5). Witnessing use of the practice has a contagious effect on drivers and other pedestrians even when folks have not yet learned about the new law.

Of course the new law presents a much clearer enforcement package to police. One of the campaigns pursued by advocacy groups such as the Oregon Walks is to push for Targeted Pedestrian Crosswalk Enforcement Actions, (basically use of a decoy to cross a roadway under police surveillance with offending drivers who fail to stop receiving summons to court or traffic school.) For a resource collection on how to conduct an enforcement action and examples of traffic school disposition as an alternative to a traffic court violation conviction, see our firm’s bicycle and pedestrian law legal resource page at https://www.tcnf.legal/bikelinks/

Advocacy by community groups for increased law enforcement of the pedestrian right of way in the crosswalk is considerably easier when the law is clarified to show when right of way begins, and law enforcement excuses for failing to ticket offending drivers who fail to stop more difficult. Advocacy campaigns that urge police to ticket drivers who fail to stop for pedestrians attempting to cross the street are much more effective when one can point to a recent directive from the legislature that “Step Off the Curb Means Stop”.

The simplicity of the “Step Off” definition creates an easy standard for public service announcements (PSAs) and in-class learning for drivers, elders, and school children. No one needs to step into traffic until approaching cars have stopped, a small but important revolution for non-signalized intersection crosswalks.

V. A SUMMARY AND ANALYSIS OF PEDESTRIAN CROSSWALK STATUTES IN THE UNITED STATES

Pedestrian crosswalk laws follow several variants and uniformly lack a safe “trigger” to create the right of way (with the exceptions of Connecticut and Wyoming and Page 10 of 15 even Connecticut and Wyoming fail to include canes or bicycle tires as sufficient to trigger the right of way.

A. Uniform Vehicle Code

Twenty-Five States follow the Uniform Vehicle Code (UVC), published in its first peace-time formulation in 1944 after World War II.

UVC 11-502. Pedestrians’ Right of Way in Crosswalks

When traffic control signals are not in place or not in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely form the opposite half of the roadway as to be in danger (6).

While the UVC clearly establishes a pedestrian right of way, it does not define “pedestrian crossing the roadway” except to protect the pedestrian only when “within a crosswalk” and “when the pedestrian is upon the lane in which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.”

The problem from the pedestrian point of view is that “crossing” seems to suggest the act of taking steps in the roadway. Of course, if cars do not have to stop until a pedestrian is “taking steps in the roadway”, the pedestrian is already in a position of danger before the cars are required to stop. The core problem is that the UVC grants a pedestrian right of way in the crosswalk without providing a trigger for making the cars stop while the pedestrian remains in a position of safety.

B. Crossing the roadway or highway

The next most commonly used terminology provides the right of way in marked or unmarked crosswalks to pedestrians crossing the “roadway” or “highway” (7). These statutes all suffer from the same lack of a legal “trigger” for the pedestrian to make approaching cars stop without being in a position of danger. These statutes also provide little or no help for law enforcement because, unlike the UVC and some other statutes, there is no guidance on exactly where the legal right begins or ends. Viewed expansively, the statutes require traffic to stop no matter how many lanes of travel exist on the roadway or highway to be crossed. However, this lack of specificity combined with the complete absence of a legal trigger denoting where the pedestrian’s body must be to make approaching traffic stop, creates a legal environment destined to be translated into mutual ignorance by pedestrians and drivers. What is needed is some way to legally make the cars stop without placing oneself in the killing zone on the highway or roadway.

C. Uniform Vehicle Code plus “steps off the curb”

The State of Connecticut does provides a legal “trigger” by providing the pedestrian with the right of way when the pedestrian “steps off the curb”, which is coupled with the UVC terminology. However, the Connecticut law, while it is an improvement, fails to provide bicyclists or other wheeled pedestrians with any clear right to the same treatment.

D. Uniform Vehicle Code plus “steps into the crosswalk”

Florida gives the pedestrian the right of way when the pedestrian “steps into the crosswalk”. This standard, while providing the necessary legal trigger, fails to describe the pedestrian in a wheelchair, on a bicycle or on wheels, but at least there is a legal basis for making approaching traffic stop at the initial stage of crossing the roadway.

E. Within or entering a crosswalk.

Wyoming requires approaching traffic to yield or stop “to any pedestrian within or entering a crosswalk at either edge of the roadway”. This statute, while it does not specifically mention wheeled pedestrians, is broad enough to include “entering a crosswalk” which is the more specific location and the phrase “at either edge of the roadway” is an expansive boundary for the duration of the crosswalk right because it provides considerably greater coverage on the opposite or “far” half of the roadway than the new UVC version.

F. Crossing the roadway in the lane of travel or lane adjacent thereto.

The States of Nebraska and New Jersey provide pedestrian right of way in the “lane of travel or lane adjacent thereto”, which is more expansive than the UVC language on a two lane roadway, but on a multi-lane highway, creates a moving zone of right of way as the pedestrian crosses from lane to lane. The legal trigger to make the cars stop is missing from this formulation of the crosswalk statute.

G. “Regular Pedestrian Crossing”

Virginia creates a novel approach that includes “marked crosswalks” and “regular pedestrian crossings”. Presumably, the law is attempting to provide coverage for unmarked crosswalks that are used regularly, but the statute is so vague as to be dangerous for pedestrians. Interestingly, the statute adds an additional zone of protection at “any intersection” where there is a speed limit lower than 35 miles per hour. What a pedestrian is apparently supposed to do at non-marked crosswalks when the posted speed limit is higher than 35 mile per hour is to decide whether it is a “regular pedestrian crossing” and if it is not, then go find a marked crosswalk or yield the right of way to approaching vehicles.

H. “Safe Use of the Crosswalk”

Wisconsin has a unique statute that, while specifically mentioning bicycles as well as pedestrians crossing the highway with the right of way, limits protection to those crossing in a way that is “consistent with the safe use of the crosswalk.” Presumably, the statute is intending to limit protection to reasonable use by pedestrians or bicyclists, but is so vague that it provides little guidance on when the right of way begins, ends, and what “unsafe usages” terminate the right of way.

I. No Mention of Unmarked Crosswalks.

Maine’s crosswalk statute provides right of way to pedestrians crossing the roadway within marked crosswalks only. No mention is made of unmarked crosswalks and in the absence of such mention, it is unclear whether the pedestrian has any right of way at all in unmarked crosswalk. Survival requires that the pedestrian yield the right of way to motor vehicles and if that is the design of the state law, Maine significantly limits pedestrian crosswalk rights.

J. “No Crosswalk law for non-signalized intersections”

In Michigan, the statute providing right of way for pedestrians only lists what to do where a traffic control device is present. There is no mention made of marked or unmarked crosswalks at non-signalized intersections. Michigan law appears to grant pedestrians no legal rights whatsoever when crossing non-signalized marked or unmarked crosswalks. Pedestrian education materials in Michigan suggest there is a pedestrian right of way in crosswalks by referencing the statute, but its language mentions only signalized intersections. Michigan is the only state that so limits pedestrian rights in the crosswalk.

K. The Oregon Hybrid.

Oregon has a hybrid statute that provides pedestrian right of way requiring motorists to stop and remain stopped for pedestrians in marked or unmarked crosswalks. The statute is a “hybrid” in that greater protection is provided for the non- signalized intersection. The law provides that traffic must stop for a pedestrian in the driver’s lane of travel and the lane adjacent thereto. However, if the intersection is signalized, traffic must stop for a pedestrian in the lane in which the motor vehicle traveling, or into which it is turning, and within an additional six feet of that lane.

And as discussed above, since June 2011, Oregon has had the legal trigger that requires approaching traffic to stop, “when any part or extension of the pedestrian, including but not limited to any part of the pedestrian’s body, wheel chair, cane, crutch, or bicycle, moves into the roadway with the intent to proceed.”

*****

Footnotes:

1. ORS 811.028. Failure to stop and remain stopped for pedestrian; penalty. (1) The driver of a vehicle commits the offense of failure to stop and remain stopped for a pedestrian if the driver does not stop and remain stopped for a pedestrian when the pedestrian is:

(a) Proceeding in accordance with a traffic control device as provided under ORS 814.010 or crossing the roadway in a crosswalk, as defined in ORS 801.220; and
(b) In any of the following locations:
(A) In the lane in which the driver’s vehicle is traveling;

(B) In a lane adjacent to the lane in which the driver’s vehicle is traveling;
(C) In the lane into which the driver’s vehicle is turning;
(D) In a lane adjacent to the lane into which the driver’s vehicle is turning, if the driver is making a turn at an intersection that does not have a traffic control device under which a pedestrian may proceed as provided under ORS 814.010; or
(E) Less than six feet from the lane into which the driver’s vehicle is turning, if the driver is making a turn at an intersection that has a traffic control device under which a pedestrian may proceed as provided under ORS 814.010.
(2) For the purpose of this section, a bicycle lane or the part of a roadway where a vehicle stops, stands or parks that is adjacent to a lane of travel is considered to be part of that adjacent lane of travel.
(3) This section does not require a driver to stop and remain stopped for a pedestrian under any of the following circumstances:
(a) Upon a roadway with a safety island, if the driver is proceeding along the half of the roadway on the far side of the safety island from the pedestrian; or
(b) Where a pedestrian tunnel or overhead crossing has been provided at or near a crosswalk.
(4) The offense described in this section, failure to stop and remain stopped for a pedestrian, is a Class B traffic violation. (Emphasis added).

2. “Every Corner is A Crosswalk”—See the excellent video with this title to better understand the breadth of ORS 811.028.

3. “Roadway” is defined in Oregon Statute as “the portion of a highway that is improved, designed or ordinarily used for vehicular travel, exclusive of the shoulder. In the event a highway includes two or more separate roadways the term “roadway” shall refer to any such roadway separately, but not to all such roadways collectively. ORS 801.450.

4. Under current Oregon law pedestrians are required to yield to vehicles when the pedestrian is in the roadway outside of a crosswalk. ORS 814.010.

5. ORS 811.020 – (1) The driver of a vehicle commits the offense of passing a stopped vehicle at a crosswalk if the driver:

(a) Approaches from the rear another vehicle that is stopped at a marked or an unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway; and

(b) Overtakes and passes the stopped vehicle.

6. AL, AK, AZ, CO, CT, DE, FL, GA, HA, IL, IN, KS, KE, MD, MA, MS, NV, ND, OH, OK, RI, SC, TN, TX, UT, WA, WV. For a link to the NHTSA comparison of pedestrian statutes and our updated survey, please visit our firm’s bicycle and pedestrian law legal resource page at www.stc- law.com/bicycle.html.

7. AK, CA, ID, IA, LA, ME, MN, MI, MN, NJ, NM, NY, NC, PA, SD, VT

Bike Lanes Continue Through Intersections For Sure With New Legislative Proposal

When a person riding a bicycle gets right hooked in an intersection, the Oregon Vehicle Code contains a section that protects the cyclist’s right to the right of way. ORS 811.050 provides:

“A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle . . . upon a bicycle lane.”

Even if investigating law enforcement officers decide not to “cite” the driver, usually the police report narrative and the attached form containing boxes for checking off relevant factors for the crash will indicate the that the motorist “FTY”—failed to yield—to the cyclist. AND just because the officer at the scene does not cite the driver with a ticket does not mean that the violation was not committed, as many cops “let the insurance companies” sort it out once the report notes what the officer believes are the primary causes for the crash.

But now two judges in cases where the offending driver was cited for violation of ORS 811.050 have decided that somehow the bike lane “disappears” in the intersection because there is no paint on the road which then somehow causes the bike lane to legally evaporate, presumably to be reincarnated when the paint starts on the other side of the intersection. While this lack of legal reasoning has no binding legal “authority” with two cases out of left field among the many adjudications that have gone the other way at the trial level out there, it is nevertheless important to affirm and clarify the law so the bad legal result does not occur again.

As we stated in 2015 the last time this happened:

“The court ruling fails to recognize that the legal existence of a bicycle lane does not end just because the paint on the road stops at an intersection. Note that the statutory definition of “bicycle lane” says it is “that part of the roadway . . . designated by official signs or markings” (emphasis added). This means that the “designation” may be by either “official signs” or “markings”. Just because the lane divider lines are interrupted in the intersection does not mean that bicyclists lose their legal right to the space legally “designated” for their use.

Bicycle lane designation by markings or signs creates a legal status for bicyclists that does not require the presence of paint on the pavement in the intersection because lanes (even motor vehicle lanes) continue even when the paint stops. It is the markings or designations visible before and after the intersection that create the legal presence of the bicycle lane. Just because every inch of a bicycle lane is not “marked”, does not mean its legal designation has ended. When one looks at a bicycle map of Portland, the “designation” of the bicycle lane continues along the entire route. No authority suggests otherwise. If traffic lanes all ceased to exist in intersections, legal chaos would ensue and every intersection without lines painted for every lane would turn into a legal free-for-all.”

See, “Bike Lane Right of Way Continues Even Without Painted Line Through Intersection”, July 2015 at tcnf.legal.  For more about the case see: https://bikeportland.org/2018/10/17/judge-rules-that-bend-bike-lane-does-not-continue-through-intersection-291167.

In the second case, Judge Michael Adler of Bend held that a Fed Ex driver did not violate the bike lane right of way law when he turned right over and onto an overtaking bicycle rider in a bicycle lane who was killed by the wheels of the large delivery truck. This unreported decision is not binding legal authority but now that lightning has struck twice, Oregon’s bike advocacy community has responded with a clarification of the law that demonstrates that bike lanes continue through intersections.

Jillian Detweiler of Street Trust and Jim Coon and Ray Thomas of Thomas Coon Newton and Frost, Attorneys have teamed up  with Representative Rob Nosse (D-Portland) to draft the new proposed law that affirms the obvious: just because there is no paint does not mean there is no bike lane in an intersection. The new law, LC 3354 (“LC” means Legislative Counsel, the official law drafting staff for the legislature) adds the section in bold below to ORS 801.155, the statute in the Oregon Vehicle Code defining “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. Where the markings of a bicycle lane are interrupted by an intersection, the bicycle lane continues in and through the intersection.

We hope this law will have the “legs” necessary to pass through the legislature and become law before another legal judicial  anomaly occurs to deny a bicycle rider their lawful right of way in the intersection.

Cynthia Newton And Chris Thomas Present E-Bike And Scooter Law To Local Attorney Group

On Friday, October 26th, Cynthia Newton and Chris Thomas presented a seminar on Oregon electric bicycle and scooter law to a group of fellow trial attorneys. Their presentation, entitled “Shock Me Like an Electric Wheel: Oregon E-Bike and Scooter Law,” covered the rules of the road governing e-bike and scooter use as well as what insurance coverage may be available following a collision. They presented as part of the Oregon Trial Lawyers Association’s annual all-day continuing legal education seminar covering topics relevant to motor vehicle collision cases. Cynthia and Chris appreciate the role that electric assisted vehicles can play in Portland’s transportation future, and were honored to speak on this important topic.

Ray and Chris Thomas Join Ruckus Composites for Podcast on Bicycle Law

Ruckus Composites is a Portland-based company that specializes in repair of carbon fiber bicycles. Ruckus’ Shawn Small and Dan Steinle frequently record podcasts on topics related to bicycles and carbon fiber, known as the Fiber Side Chats. Shawn and Dan recently invited Ray and Chris Thomas of Thomas, Coon, Newton & Frost to their studio to discuss bicycle law, including rules of the road, how Oregon compares to other states, and how insurance coverage can protect bicyclists.

The episode is here. We hope you enjoy it!

Oregon Environmental Council Highlights TCNF E-Bike Booklet

The Oregon Environmental Council (OEC) recently published an article called “E-Bikes: Rules of the Road & Why We Love ‘Em.” Their post highlights the benefits, joys, and convenience of incorporating an e-bike into one’s daily life. They include testimonials from people who use e-bikes for family travel, to go camping or to keep doctor’s appointments, and as an alternative to commuting by car or motorcycle.

The OEC’s post also linked to TCNF’s newly-released free booklet on the rights and responsibilities of e-bike riders—E-Bike Rights: A Legal Guide for E-Bike Riders—which you can read more about here.

The floating section of Portland's Eastbank Esplanade, credit to Wikipedia User Cacophony

E-Bikes And E-Scooters On The Springwater, Esplanade And Other Portland Parks

The recent prevalence of e-bikes on Portland streets, and the even more recent influx of e-scooters, has increased the public’s curiosity about state and local law governing the devices. Many Portlanders now know that e-bikes and e-scooters are prohibited on sidewalks statewide, users of both must be at least 16 years old, and e-scooter users must wear helmets, but not e-bike riders. (For a comprehensive look at Oregon e-bike law, see our firm’s legal guide here.) A lesser known provision of Portland city code came to my attention recently in an article by the Oregonian’s Lizzy Acker, which included the following statement:

I emailed Portland Bureau of Transportation spokesperson John Brady on Friday to ask him some question about the scooters and he informed me that city code does not allow scooters in city parks, including the esplanade and the Springwater Corridor, so I can’t recommend you take this route home.

It seemed strange to me that critical bicycle and pedestrian corridors like the Springwater and Esplanade would be off limits to e-scooters, so I decided to take a look at the code to learn more. The relevant provision is not located in Title 16, which governs Vehicles and Traffic, but rather under Title 20 governing Parks and Recreation. Although the Springwater and Esplanade don’t resemble typical parks, they are controlled by Parks and Recreation and so are subject to the same rules as more conventional park spaces like Pioneer Square and Irving Park. After some digging, I came across 20.12.170, which regulates Use of Certain Devices or Equipment. Subsection (D) of that ordinance states as follows:

20.12.170 Use of Certain Devices or Equipment.

D. No person shall operate any motorized vehicle or motorized wheeled vehicle or motorized wheeled device in any Park, except on Park roads or in designated vehicle parking areas, or by permit. The prohibitions of this Section do not apply to authorized service or emergency vehicles or to the following electric mobility devices used by persons who need assistance to be mobile, and used in accordance with all applicable park and traffic rules:

1. “Electric assisted bicycle” as defined in ORS 801.258;

2. “Motorized wheelchair,” “Mobility scooter” or “Power chair” defined as an electric powered transportation device for one person in a seated position, with feet resting on floorboards or foot rests, and incapable of exceeding a speed of 20 mph; or

3. “Human or personal transporter system” defined as a self-balancing, electric-powered transportation device with two wheels, able to turn in place, and designed to transport one person in a standing position, with a top speed of 20 mph.

Assuming e-scooters constitute “motorized vehicle or motorized wheeled vehicle or motorized wheeled device,” which is fair, they do appear to be prohibited from use in Parks, which are defined in 20.04.010 as property “placed under the jurisdiction of Portland Parks and Recreation for park or recreational purposes.” The prohibition on e-scooters alone seems significant, given the important role served by Parks like the Springwater and Esplanade in the City’s bike and pedestrian infrastructure. However, the provision that really caught my eye from the above code provision relates to e-bikes. 20.12.170(D) subsection (1) exempts e-bikes from the general prohibition on “motorized vehicle or motorized wheeled vehicle or motorized wheeled device”, but only when “used by persons who need assistance to be mobile.”

Therefore, non-disabled e-bike riders are granted no exception to the e-bike prohibition, and are prohibited on all Park paths throughout the City. According to the Portland Parks directory, Parks include not only the Springwater, Esplanade, and Waterfront Park, but also the Peninsula Crossing Trail, Gateway Green, Forest Park and Powell Butte. Indeed, Portland law excludes non-disabled e-bike riding on some of the City’s most convenient, safe, and scenic bicycle corridors.

The prohibition of non-disabled e-bike use, as well as all e-scooter use, from many of our City’s prized bicycle and pedestrian facilities seems inconsistent with the City’s stated goals of fighting climate change, promoting non-car transportation, and improving safety for vulnerable road users. The Springwater and Esplanade epitomize the type of car-free and efficient infrastructure that make bicycle commuting through Portland an attractive alternative to driving. If the City is serious about accomplishing its goals, it needs to act soon to allow at least some level of e-bike and e-scooter access to these areas by non-disabled Portlanders.

Some may question whether a change in the code is truly necessary given the lack of any apparent enforcement by the City of the above provision. However, despite no current, active enforcement, the code should be updated because it reflects our priorities as a City. Also, if a collision happens that causes injury to an e-bike or e-scooter user, the injured party could face a defense that they were legally a trespasser and shouldn’t have been in the park in the first place. Though it may seem like an obscure, unenforced code provision now, it could still create an excuse for failing to pay for damages caused by negligence.

It recently came to light that the state’s park agency, Oregon Parks and Recreation, interprets state rules to prohibit e-bike users from trails in Oregon State Parks because they fall under the agency’s definition of motor vehicles. As a result, Oregon Parks and Recreation initiated a process to change the rules and allow e-bikes on state park trails, with reasonable restrictions on use. In recognition of the important role e-bikes and e-scooters can play in our City’s transportation future, we think the City of Portland should take similar action.

Image credit: “The Esplanade’s floating section” by Wikipedia User: Cacophony under CC BY 2.5

Cynthia Newton’s Back to School Road Safety Tips

TCNF Partner Cynthia Newton spoke with KATU traffic reporter Hannah Olsen about getting your kids to school safely by bike. In this clip, aired in Portland on August 27th, 2018, Cynthia explains her five rules for safe bike travel to school.

1. Find a good route from where you live to your school. That way you can follow the same route every day. No fuss. No rush.

2. You can ride on the sidewalk everywhere in PDX except downtown. Remember to slow to a walking speed when crossing driveways and entering crosswalks so cars have more time to see you.

3. When crossing the street, always use a crosswalk. There is a crosswalk at every corner, even if there is no paint on the roadway. Enter at walking speed so cars have more time to see you.

4. Kids under 16 are required to wear a helmet. Kids are more likely to wear a helmet if their parent does.

5. Wear white and use a light. Lights—a white one in front and a red one in rear—are required in limited visibility conditions, but wearing white or using a light anytime makes you more visible. Drivers don’t hit cyclists they can see.

KATU’s article about this conversation with Cynthia, including some additional advice from TCNF attorney Chris Thomas, can be found here.

TCNF Attorney Chris Thomas Places 3rd In The Red Line Criterium

On Sunday August 12 attorney Chris Thomas raced as a member of the TCNF.LEGAL Racing Team in the Red Line Criterium on Swan Island in Portland. Chris lined up with about 25 other riders for the Category 3 event, which raced for 40 minutes around the flat, one half mile, D-shaped circuit. On the final lap, Chris sprinted for 3rd place and a spot on the podium. For more information on the TCNF.LEGAL Racing Team, check out their Facebook page here.

Announcing a New E-Bike Legal Guide by TCNF Bike Lawyers

TCNF’s team of bicycle trial lawyers is pleased to announce the completion of Oregon E-Bike Rights: A Legal Guide for Electric Bike Riders.  Written by Ray Thomas, Jim Coon, Cynthia Newton and Chris Thomas, the booklet contains a comprehensive discussion of laws governing the use of electric bicycles in Oregon.  Topics include riding in bike lanes, on sidewalks, in state parks and on federal land, as well as insurance coverage and advocacy efforts to improve e-bike laws.  TCNF’s bike lawyers felt the need for this booklet now due to the recent increase in popularity of electric bikes and the interesting legal space they occupy between bicycles and motor vehicles.

You can download the booklet here. Updated to 2nd Edition in November 2018.

We hope you find this guide useful and that you contact us with any questions about Oregon e-bike law.