What do you mean I don’t have the right of way?
What do you mean I don’t have the right of way?
Some of the most troublesome issues when cycling in urban environments, whether for fun or commuting, is the right of way scenario: whose got the right of way? Fortunately, legislators have kids and they want to protect their kids on bicycles, so we have some laws that protects us as well. The right of way at intersections is not one scenario, it’s several and there are different legal issues too, but we can boil it down to just one conclusion: to the motor vehicle, it’s a dent, to the cyclist it’s a trip to the hospital, so, be careful. Well, that’s it from me for this quarter, thanks for reading….you can stop now. Go on about your life citizen, there’s nothing else to see here…..
Okay, you knew there was more to this issue
Of course you can see more text below so……
Maybe there are some salient things you’ll want to know about these right of way issues.
Right of Way.
First let’s be clear: Right of way doesn’t mean anything more than who’s supposed to go first. However, both you and the driver both have to “watch out” regardless. There’s a rule in Florida law that’s found in a jury instruction given by the trial judge that says: “All persons may use the streets and highways but each has a duty to comply with lawful regulations of its use applicable to him and to use reasonable care for his own safety and for the safety of others.” (Florida Standard Jury Instruction 4.10). What does this mean as far as you and that car? Its driver is supposed to obey the laws, but so are you. As we know from the constant violation of the three-foot rule, it’s a nice thought- obeying the law, but many cyclists are still not having to shave the left side of their left legs for racing season based on the assiduous adherence to the three-foot rule.
Right of Way: Two Conflicts
There are two primary areas of conflict between cars and cycles and both are where each has a right to be. The first is on the road intersection, the second is on the private/public property-the sidewalk intersection.
Enter the Traffic Statutes: 316.123, 316.2065
At the road intersection you have a conflict where a car has come to a stop at the road you are on. Now, you will be one of two places. First, you may be on the road the stopped car is coming onto, second you are crossing that road which has bifurcated the sidewalk you were on (more about this later). While on the main road, your concern is whether he’s going to pull out in front of you. (I know you are not driving against traffic). In this case, you have the right of way. Absolutely. Florida law provides that a vehicle must stop at a “stop bar” (the white line painted on the road next to the stop sign) and must not enter onto the road when there is approaching traffic (that’s you) “so close as to proximate a hazard.” (§316.123, Florida Statutes 2008). Under the law, you are traffic, despite what the letters to the Editor exhort. Now, keep in mind, Florida statutes say, (§316.2065) a cyclist “has all of the rights and all of the duties applicable to the driver of any other vehicle under [Florida law]…..” So as far as your bike is concerned to that driver, you are an SUV, a Mercedes, a Porsche, a Dodge Sprinter. That law is your law.
Thus, the stopped vehicle has to wait until that traffic (you) is not a hazard. Either you go past or, in our case, you don’t seem to be traveling fast enough and the driver thinks he’s got time to pull out. In either case, if the vehicle pulls out and you collide, he’s at fault, he broke the law, your right of way was violated. It doesn’t matter what speed you are doing (or even if you were signaling to turn into the road), the vehicle just broke the law. Period. Game over. Stick a fork in it. Goodnight Johnboy. Call your favorite bicycling personal lawyer. However, don’t go Postal at the scene. Let the lawyer get mad for you like Faye Dunaway’s character in Chinatown. More of that in another article.
“I just didn’t see the bicycle, he must have been speeding”
At this point, I’m tempted to stray into the human factors field of the experts I hire and venture to say, the biggest problem in this instance is the somnambulant drivers can’t tell how fast you are going and, for those of you who can really motor, you need to be aware of this. I’ll stop there. In the hectic, day of ‘I’ve-got-to-get-to-somewhere-other-than-here-in-less-time-than-I-have” folks are not watching you. Unless you resemble the “star” from that insipid television show they were watching last night, they ain’t looking at you. Suffice it to say, drivers just don’t realize we are doing 12-23 mph/19-37 kps without any effort. At that speed, we can cover 17.6 feet per second (fps)/15.4 meters per second (mps) to 33 fps/10mps. Putting that on the street, Mr. Motorhead, doesn’t realize that from one half a city block away, at an average speed of 20 mph/32.18 kps you’re on his hood in five seconds. They just don’t realize how fast we’re traveling and pull out. Hey, now that I think of it, maybe you don’t realize it. Rule of thumb: never trust anything with a motor.
What the heck are you doing on a sidewalk anyway? (Surviving)
The first second right of way conflict is the sidewalk/road. There are two places/scenarios for this conflict. But first, some background is in order about driving on sidewalks.
In pretty much any town, laid out when horses and carts were used (before the 1920s), you will have streets that are, to omit expletives, narrow. Although we know the history of bicycles, they were not the light, fun nimble modes of transportation, sex appeal, markers of high intelligence, scintillating personality and coolness that they are now. (Well, they are). As a result, roads in older towns, including most major cities, except lots of Orlando, are narrow. That means have some narrow roads. For example, go to the old section of St. Augustine to get a real feel of roads determined by an oxcart’s width. Additionally, until recently there were no bike lanes and we sweated the sound of a car at 45 mph coming up behind us on a narrow road. When I lived in Tallahassee and St. Petersburg, in certain sections, no three-foot rule was possible so it was too dangerous to get on the roads. Thus, I and many of you take to the sidewalks. I’d put in a few expletives about the lack of well-marked bike lanes, but this is a family publication. Fortunately the paucity of bike lanes is changing with each city and county commission YOU go to.
“Cain’t they just go somewhere else besides the roads and sidewalks?”
Once you get on a sidewalk, you are legally “on your own” except for one Florida statute. The three-foot rule is not there for you. That yellow line on either side of the road is where Florida Traffic statutes stop. Furthermore, there’s no telling what your status is when you hit the sidewalk. It’s all right to pray the city doesn’t declare you a miscreant, arrest you and put you in the county jail. So… fellow travelers…the only thing that you can do is this, BEFORE getting on your local governmental sidewalks is check “the Code.” That is the city or county’s code. Easily done fellow cyclists! Every little “Burg” of any size has a code and lots of them have them for bicycles; good bad and indifferent, but you need to know them. There’s a website which lists Counties and cities that have their codes. The web site is: http://www.municode.com/Resources/OnlineLibrary.asp Look in there for your city or county and see what there is on bicycles. If you can’t, one cynical rule of thumb is assume you are not protected. Many “Bergs” drafted cycling legislation in the boom of the 50s where the old folks moved to Florida to get away from their self centered baby boomer children. The motto those city “fathers” used to draft these ordinances is: “kids ride bicycles, we hate kids, so we don’t want them on our sidewalks;” a perfect example why you need to run for city council or county commission. This was the precise issue in a bicycle case I had a few years ago in a certain Florida city (the name of which will go without saying because the city leaders should be ashamed of the way they treat people on bicycles….oh, all right Clearwater friggin Florida). An eleven-year old, going to the store for his mom, was hit by a car turning into a private driveway. Since most sidewalks are in the right of way owned by the governmental entity, it had jurisdiction. Sure enough, this city had passed a stupid, inane, non-sensical, mean-spirited (this is how I really feel) ordinance that banned bicycles (yes even kids too) from the side walk. This despite that there was a 45-mph road with no bicycle lane- essentially no safe place for a child to ride. (I did win that, but that’s another story). What to do in your town if you can’t find the applicable code? Call law enforcement (ask nicely to speak to the agency “spokesperson”) and ask them if it’s legal for bikes to be on sidewalks and under what conditions. Most of the time they will be able to let you know or point you to an ordinance.
Rescue by Florida Statutes.. Again!
However, do not fret citizen. There is a law on the books in Florida that says: no motor powered vehicle, except bicycles, on sidewalks. (Florida Statute §316.1995). By implication, and argument (or if you have a clever lawyer) you can say: “Hey, I can be on the sidewalk because the State law mentions bicycles.” A few years ago when I was in a moped gang, a university police officer caught me riding my moped on a sidewalk at (let’s just say late at night) and told me “no mopeds” on the sidewalk. He had suspiciously jumped out of some bushes on the side of the sidewalk. So, either he or I was indeed a miscreant at that point. I pointed out to the policey-like person, that my “headlight was off.” Which stumped him just enough to let go with a warning. Moral: if you are on the sidewalk because of a narrow road safety issue and there’s a city/county law that says “no bikes on sidewalk,” mention this STATE statute to the policey-like person. Due to complex legal reasons (in the jurisdiction conflicts area), the State Statute may not trump the city/county code, BUT by golly, the thought of being ribbed back at the police station for giving a cyclist a ticket and the fact your policey-like person may not have had the Conflicts of Jurisdictions course in law school may be just enough to let you slide with a warning.
Okay, will you get to the point? First Scenario: Following the Chicken
Now, the conflicts. The first one is where a side walk is on either side of a road where the road joins another road. Whether there’s a marked cross walk or not, you can’t argue for right of way under Florida Statutes §316.123, quoted above. Doesn’t apply. Nice try, no Cohiba. The chicken has a better chance.
Now, as a pedestrian you have lots of rights under Florida Statutes §316.130 which says “(7)(a) The driver of a vehicle at an intersection that has a traffic control signal [stop light] in place shall stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon 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.” Subsection 7(b) applies it to stop sign intersections too. See? Great stuff. Two problems, I know you noticed it… YOU HAVE A BIKE UNDER YOU…. , you’re not a pedestrian.” Second problem where this law doesn’t help you… where there’s only a stop sign stop bar in the road… no cross walk, what’s the rule? Two solutions to get this statute working for you here: first, be a pedestrian; get off the bike. Let’s drop the other shoe now: Florida Statute §316.2065 subsection 10 does say “A person propelling a vehicle by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances.” If you ‘re on the roadway, you have the rights. However, keep in mind this may escape the sharp eye of the unsympathetic, common traffic cop. Since it relies on knowing two statutes (first the pedestrian crosswalk rights law and second bicycle-has-pedestrian-rights law), I’d advise you to dismount to be safe. Don’t take your chances confusing the nice uniformed officer with two statutes to interpret. Finally, note this statute does not control the case where there’s “proper signal” to the pedestrian.. Really, have you ever seen a crosswalk with a stop sign that had a pedestrian signal on the other side? No? Well, that’s because there aren’t any. You won’t have a “proper signal” for the go-ahead. What to do? Wait for the cars to go by. You can watch Mrs. Gearhead and see if she signals you to go ahead but, even then you don’t have the right of way. Just wait. It’s less painful. Really.
Another Flavor of this: one road, one chicken, no crosswalk
Second type of this conflict is where there’s only a stop sign, a “stop bar” and no proper crosswalk. What to do? Here’s my suggestion: Walk across on the stop bar like a cross walk path and straight across to the other side just like the stop bar was delineating the path of the crosswalk. I really would dismount too. Show that you intended yourself to be a pedestrian. You should be safe, again with the caveat: never trust anything with a motor. Again, what to do? Wait for the cars to go by. It’s less painful. Really.
Second Scenario: Car crossing sidewalk
Now the other intersection conflict is where the car is coming out or going into a private drive parking lot, etc. from or onto a road and has to cross the sidewalk on which you happen to be or are about to be. For the coming out part; this is easy: Florida Status §316.125, (a personal favorite of mine which I’ll quote in pari materia):
316.125 Vehicle entering highway from private road or driveway or emerging from alley, driveway or building.–
* * * * * *
(2) The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across the alley, building entrance, road or driveway, . . . . where the driver has a view of approaching traffic thereon and shall yield to all vehicles and pedestrians which are so close thereto as to constitute an immediate hazard.
(Emphasis added).
Score! This is gold. Under this law, if you are on the sidewalk, that motorized vehicle has to stop “where the driver has a view of approaching” [bicycles] and shall yield to all vehicles (that’s us cyclists) that are so close thereon (on the sidewalk) as to constitute and immediate hazard (where we are riding along and so close that we might hit them if they pull onto the sidewalk). Pretty cool, eh? I was just consulted by another personal injury attorney who’s in trial on this very issue. You gotta love it when they write a law and we benefit, Man!
Now, the motor vehicle coming onto the sidewalk from the road is not really covered; just like my 11 year old boy’s case. Moreover, sidewalks are unidirectional and many times you have to or are going “against” the traffic. This is a new set of problems. First the driver is on the road, you’re traveling with traffic and she/he doesn’t look to see if you’re about to cross where’s she’s turning (my dear brother’s broken leg case). This happens when you are going with traffic mostly. The worst version of this is when you are driving against traffic and the opposing lane (traveling in your direction) turns across the traffic lane you are going against and into the parking lot and you. You both never even knew what was coming. It’s bad. We are not protected here by any on point statutes. Here, the famous “reasonable man” standard applies. You have to act “reasonable” and be on the look out for traffic coming onto your sidewalk from a road. The above statute does not apply specifically. Like I said before, IF you have that clever bicycle lawyer, he can argue the above statues applies, though it’s not specifically for your set of facts. I mean the case is winnable, but you’d better be Mr. Wholesome for the jury to like you.
“Wait, you mean I had to read all through this for this tidbit?”
Finally, my last word on this subject: Don’t forget: It’s a dent to them but devastation to you. So, whether you are right or wrong, you are still hurt, your ride is still damaged; you’re off the road for some time. Yeah, some lawyer like me can “go after them,” but let me tell you from the lips of my injured clients: “I’d give all this money back, if this had just never happened.” Those words are burned into my memory from the many times I’ve heard. The “rightness” you will help you to recover from the offending driver is meaningless if you’ve lost something money can’t replace (e.g. your good health). And here’s another kicker: the person who hit you may have no insurance whatsoever. Our esteemed legislature has seen fit not to require bodily insurance for any motorists driving what is legally classified as a deadly weapon (no kidding). Some folks don’t have any insurance whatsoever in this economy.
As educated folks know, “tort law” is a way for a person to recover what has been taken from them. Hopefully, for you that’s just a bent front wheel or forks and nothing more. Whatever, the case, let’s be safe out there and happy riding.
