Shifting The Blame, and Justice Denied, Again

It’s the issue that just won’t go away—and cyclists are continuing to get stung by it. I’m talking about contraflow riding on the sidewalk—in plain English, riding on the sidewalk against the direction of vehicular traffic. Now, many cycling safety advocates strongly recommend against riding on the sidewalk. Others take a more nuanced approach. Personally, I occasionally ride on the sidewalk myself—even against the flow of traffic. So does Bob. I’m aware of exactly what the danger areas are (for those who don’t know, you need to be careful where driveways cross the sidewalk, because drivers aren’t looking for you. You also need to be careful when leaving the sidewalk to enter a crosswalk), so I’m cautious when riding on the sidewalk (it is the domain of the pedestrian, after all, and it’s only polite to be cautious when riding near pedestrians), and extra cautious when approaching driveways.

The point is, if you understand where the danger points are, and more importantly, how to avoid getting hit at those danger points, the sidewalk can be a safe place to ride (and let’s face it, people often take to the sidewalk because it seems like a safer alternative than the traffic lanes next to them). And more to the point, it’s typically legal to ride there—even if you’re riding against the flow of traffic.

The problem is, law enforcement officers often just don’t understand that it’s legal. This was the case in 2009, when a Los Angeles cyclist was killed while riding in the crosswalk. Although she had been hit by a driver who was making a right turn and never saw her in the crosswalk, the law enforcement officer charged with investigating the collision determined that the cyclist was the “primary cause” of the collision. The officer reached this conclusion based on his assertion that it is illegal for cyclists to ride on the sidewalk, and it is illegal for cyclists to ride against the direction of traffic. There’s just one problem with that analysis—it’s completely wrong on the law. In California, it is perfectly legal for cyclists to ride on the sidewalk, unless prohibited by local law. And while cyclists are required to ride with the direction of traffic while on the road, it is perfectly legal to ride against the direction of traffic while on the sidewalk (and remember, a crosswalk is like an extension of the sidewalk across an intersection).

In other words, the Los Angeles cyclist had broken no laws. And yet, because the officer did not understand the laws regarding cyclists, the investigation was cut short, and the cyclist was declared to be at fault. Was the cyclist free of fault? Was the driver at fault? We will never know. The cyclist deserved a fair investigation, and did not receive it. Justice was not served.

She was not the only cyclist who suffered an injustice due to this mistaken understanding of the law. Four months later, the University of Southern California and the LAPD began ticketing students for several violations, including riding in the crosswalk. Here's the thing—the traffic laws are intended to proactively promote safety by increasing certainty and reducing chaos. There’s nothing wrong with a fair enforcement program, but citing cyclists for violations of non-existent laws is not a “fair enforcement program.”

I was reminded of these incidents when I wrote about a crosswalk collision yesterday. And then, while responding to emails, I came across another story, this time involving a collision in Las Vegas, Nevada. In October of this year, a cyclist was riding on the sidewalk in Las Vegas, Nevada, as you might imagine, against the flow of traffic. As the cyclist approached a commercial driveway, a car was exiting. The driver did not see the cyclist (because drivers don’t look in the direction they are turning) approaching from the driver’s right, and there was a collision. The cyclist suffered non-life-threatening injuries. The driver explained to the investigating officer that she did not see the cyclist (cyclists take note, this is exactly why safety experts strongly recommend against sidewalk riding). After hearing the accounts of what happened, the officer ticketed the cyclist. As the cyclist understood it, the ticket was for riding against traffic on the sidewalk. This is where the incident really started to get interesting—and confusing.

The officer cited violations of state, county and city laws. Let’s start with the state law violation. The officer alleged that the cyclist violated NRS 484.503; that statute has been replaced by NRS 484B.763, which specifies that the traffic laws applicable to motor vehicle operators also apply to cyclists—when the cyclist is operating upon the roadway. This means that when the cyclist is not operating on the roadway, the rules of the road for motor vehicle operators do not apply. Another way of saying this is when the cyclist is operating on the sidewalk, the rules of the highway apply. This means that on the sidewalk, cyclists are governed by the rules applicable to pedestrians. Thus, it is not against Nevada law to ride on the sidewalk, in any direction, so the cyclist didn’t actually break any state traffic laws, regardless of the statute number.

OK, what about that county law violation? The officer cited the cyclist for violating County Code 14.052.010; this law states that traffic laws apply to cyclists. Yeah, but what traffic law did the cyclist violate? That non-existent law that prohibits riding on the sidewalk against traffic?

Well, what about that City Code violation? What was the cyclist charged with? A violation of 11.040.070, which requires cyclists to obey traffic control devices. Get it? The cyclist was riding on the sidewalk, and was struck in an intersecting driveway; there was no traffic control device on the sidewalk. Well, maybe the officer made another mistake, and meant to cite the cyclist for a violation of 11.40.060, which states that traffic laws apply to cyclists. Maybe. But again, it’s not against the law for cyclists to ride against traffic on the sidewalk, so exactly what traffic law is the cyclist alleged to have broken?

What happened with this investigation is pretty clear. The officer figured that because cyclists are required to ride in the same direction as traffic while on the road, they are also required to ride in the same direction as traffic while on the sidewalk. In fact, he may even have figured that it’s against the law for cyclists to ride on the sidewalk, period. The only problem was, the officer couldn’t find the exact law that specifies this (obviously, because it doesn’t exist). So what did the officer do? He cited the cyclist for the vague violation of not obeying the traffic laws—only he was so unfamiliar with the applicable traffic laws that he even botched the statute numbers of the laws he was alleging the cyclist violated.

Look, it comes down to this: Nobody is arguing that cyclists don’t need to be cautious when approaching a driveway while riding on the sidewalk, especially when riding against traffic. This collision illustrates the danger involved. Drivers are required by law to use caution when crossing a sidewalk, but they don’t. Drivers are required by law to look in the direction they are turning, but they don’t. That is why cyclists are urged not to ride against traffic on the sidewalk. But let’s be clear about this—it’s not against the law. On the other hand, drivers who don’t use caution when crossing sidewalks and making turns are violating the law. Inventing imaginary laws that were allegedly violated by the cyclist is just blaming the victim, and once again, justice is not being served.

By Rick Bernardi, J.D.
 

Comments (Comment Moderation is enabled. Your comment will not appear until approved.)
In Kentucky, it is illegal for an adult to ride on the sidewalk. Interestingly, the statement in the driver's manual (available in several places online as a .pdf) is one of very few places in the entire manual that an entire sentence is in capital letters.
# Posted By Tom Armstrong | 11/23/11 12:56 PM
It's a vicious, Catch-22 type of situation -- until cycling is more common, the laws will not be more commonly known; but, until the law is more properly applied (WHICH REQUIRES KNOWLEDGE OF THE LAW), there will continue to be incidents like this, a discouragement to all but the most dedicated among us.

Personally, I DO pay close attention to what drivers do, and after a decade of everyday cycling, and 30+ years behind the wheel, I can pretty well predict what drivers will do. (It helps to assume that whatever they do will likely be the rudest, most thoughtless and stupid deed imaginable, then you can only be pleasantly surprised!)
# Posted By MarkB | 11/23/11 1:17 PM
A big issue is the crosswalk. While a crosswalk is an extension of the pedestrian pathway, it is still part of the roadway.
Bicyclists have all the rights and responsibilities of vehicles according to the CVC, and vehicles are not allowed in crosswalks.

The opinion of many police departments (well, the three I talked to) is that bicycling in the sidewalk will be ignored unless the bicyclist is endangering pedestrians by riding to fast.
If the bicyclist is going the wrong way down the street and then into the crosswalk, they will be cited for both.
Legally, according to them, if the bicyclist in in the crosswalk, he/she should be walking the bike.

It's a very grey area that needs to be settled one way or the other. Because of that, it can shift partial liability over to the cyclist in any civil suit, affecting monetary awards for damages.
# Posted By Alan | 11/23/11 2:00 PM
The police interpretation that bikes are vehicles and therefore not allowed in crosswalks is a confused interpretation of the law.

Vehicles are not allowed in crosswalks because the crosswalk is like a sidewalk, and vehicles are not allowed to operate on the sidewalk. But where the law allows cyclists to ride on the sidewalk, they are considered by the law to be pedestrians, rather than vehicle operators. Therefore, when they are in the crosswalk, they are still pedestrians under the law, rather than vehicle operators. Some jurisdictions make this explicit, whether by statute or case law. In other jurisdictions its implicit-- and that's where we see the police interpreting the law incorrectly.

Unfortunately, when the police get it wrong, it's not just a theoretical error-- it has real-world implications for the cyclist.
# Posted By Rick Bernardi | 11/23/11 4:46 PM
1. There is a California Attorney General opinion that states that cycling on the "wrong side" sidewalk is illegal. ( I will find it and send it when I get home this weekend.) I believe that this opinion is misguided, because I do not believe that the legislature intended that when Johnnie, who is 6, rides down his driveway and turns right to ride down the sidewalk to visit Jimmie, who lives two doors down, is expected to cross the street twice or ride around the block to get home when his Mom says it is time for dinner.

2. When I used to do bicycle collision analysis for attorneys, since the law does not address cycling in crosswalks, I considered riding into the crosswalk to be controlled by the laws governing entering the roadway by a vehicle. The cyclist must enter the roadway with due caution, yielding to other traffic lawfully using the roadway at the place and time, so they should have to operate in the same way when riding into the crosswalk.
# Posted By Al Williams | 11/25/11 1:51 PM
The California Attorney General's Opinion forbidding "contraflow" cycling on the sidewalk is Opinion No. 93-418. To download the pdf, enter the opinion number in the search field in http://ag.ca.gov/opinions/searchOpinions.php
# Posted By Al Williams | 11/27/11 5:04 PM
My Research shows that the courts have ruled that the sidewalk is actually part of a highway/street. As such, a cyclist riding contra to traffic flow would be legally liable for the accident. See: caselaw.findlaw.com/ca-court-of-appeal/1403039.html, also caselaw.findlaw.com/us-2nd-circuit/1120328.html. While these case refer to pulling over a cyclist for probable cause, when challenged the courts ruled that since the cyclist was riding contra to the traffic flow on a sidewalk, and a sidewalk is part of a highway/street, then the officer had reason for pulling over this indivual.
# Posted By John Martin | 3/23/12 3:50 PM
This, too, is irrational. By extension, if a sidewalk rider is already in the highway/street by law, then a collision between an automobile and a correct-side cyclist riding off a sidewalk into an intersection would generally be the fault of the driver, because the cyclist was "already in the road" so the driver would be required to yield vehicular right-of-way to the cyclist.
# Posted By Al Williams | 3/23/12 4:40 PM
What does (G) below do to the issue
I was cited this evening riding 20 yards down the sidewalk to get the the next light to cross over.

Right Side of Roadway

21650. Upon all highways, a vehicle shall be driven upon the right half of the roadway, except as follows:

....

(g) This section does not prohibit the operation of bicycles on any shoulder of a highway, on any sidewalk, on any bicycle path within a highway, or along any crosswalk or bicycle path crossing, where the operation is not otherwise prohibited by this code or local ordinance.
# Posted By B Rad | 9/7/12 3:40 AM