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Getting schooled by lawyer Ray Thomas

Posted by on April 29th, 2010 at 12:02 pm

Ray Thomas
(File photo from a news conference in 2008 © J. Maus)

“We have a mutant status on the roadway.” That’s one way lawyer Ray Thomas tried to describe the often confusing and misunderstood legal standing of people who walk and bike on the streets of Oregon.

His comment came during a special edition of the monthly legal clinic hosted at Thomas’ Swanson, Thomas and Coon law firm. This month’s clinic (put together by Thomas along with the BTA and the Willamette Pedestrian Coalition (WPC)) was intended to educate local journalists about biking and walking laws so we can do a better job on our stories.

The turnout was a bit disappointing, but with short-staffed newsrooms and busy schedules, it was understandable. There were more advocates in the room than working journalists. The two that did show up (besides myself and freelancer/activist Elly Blue) were Laurie Robinson from The Oregonian and Brian Stimson from The Skanner.

“We don’t see collisions and crashes as ‘accidents’… All crashes are preventable, it’s not a matter of ‘accidents happen, too bad.’”
— Ray Thomas

In the conference room, there was a leaflet from the WPC that blared, “Because everyone is a pedestrian” (I wish it said “Because everyone walks,” but that’s for another post). There were also stacks of Thomas’ excellent reference books, Pedal Power: A Legal Guide for Oregon Bicyclists, and Oregon Pedestrian Rights: A Legal Guide for Persons on Foot.

After brief introductions, Ray Thomas — a man who is equal parts bike enthusiast (he races and is the founder of the famous weekly “Lawyer Ride”) activist, and lawyer — took over the room.

Thomas didn’t hold back (nearing diatribe level at some points) in his nearly hour-long presentation. He listed in detail the many points of contention he has with biking and walking laws that are either repeatedly misrepresented or completely absent from most local news coverage. Thomas said (as anyone who reads comment threads on local TV stations can attest) it’s imperative for journalists to better inform the public about traffic laws because, “It’s an opportunity to raise the lowest common denominator in our community.”

Thomas accused journalists of too often “punting” instead of outlining applicable traffic statutes in their stories and implored them to do more often in order to “raise everybody’s collective knowledge.”

With that, Thomas presented us with a long list of laws, issues, and other legal insights he felt merited more attention. Here are some of things he shared (paraphrased):

– “We don’t see collisions and crashes as ‘accidents’… All crashes are preventable, it’s not a matter of “accidents happen, too bad.”

– Thomas does not like when reporters write, “No citations were issued” (a common line in stories on crashes) because it gives the false perception that the party involved was not guilty of anything. Instead of (or in addition to) writing that, Thomas said it’s important to point out that “current police policy is not to conduct an investigation or issue citations unless someone is taken away in an ambulance.”

– Conflicts between non-motorized users should be a story on local media’s radar screen. Thomas explained the interesting legal issues around situations where runners use bike lanes. “Runners in bike lanes are to bikers what bikers on sidewalks are to pedestrians.” (If you’re taking notes, that means joggers must yield to people riding bikes in a bike lane and people on bikes must yield to people walking/jogging on the sidewalk).

– Motor vehicle operators must yield to people using the sidewalk. He also went into detail about how he detests the Oregon law that states people on bikes have the right-of-way in crosswalks and sidewalks but only if they are going at “walking speed”.

– Both people operating cars and bikes must stop for people who are trying to cross or who are in the act of crossing the street. This is a pet peeve of mine too — when someone on a bike speeds past stopped cars who are waiting for someone walking. Law says all vehicles — bikes and cars — must stop.

– Thomas thinks the law about where it’s legal for people to ride bikes on sidewalks is overly confusing and detrimental to getting more people on bikes. Not only did he ridicule that in Portland you can get a $500 fine for riding a bike on a sidewalk, but he said we should create an exception in the law for young people like they have in New York City (where 13 and under can use sidewalks). (If you’re taking notes, in Portland it’s illegal to ride a bike on the sidewalk within the boundaries of SW Jefferson, Front/Naito, NW Hoyt, and 13th Ave.)

– Another big one, which I only recently learned myself, is that while the law says vehicles must stop for someone trying to cross at an intersection, that person can’t just jump out in the street and expect everyone to stop. The law states the vehicle operator must be able to stop in a way that does not “constitute an immediate hazard” to themselves or other road users; meaning, there has to be reasonable time for the person to see you and then stop their vehicle*.

*(UPDATE: The applicable statute here is 814.840, which states: “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.” Thomas says this is a “legal opening for drivers to argue after a collision that there was no room to stop.”

Rounding out his presentation, Thomas pointed to a vintage bike map of Portland from 1895 (that’s 18, not 19) and reminded everyone that “We were here first!” People on bikes were kind enough to share the roads with the four-wheeled newcomers, now he said, it’s important to remember to return the favor.

In addition to the “mutant status” reference — which Thomas made in trying to explain the laws around bike riders’ legal right to the lane — another funny term he used was “urban deer phenomenon.” This, Thomas said, was the psychology of some people when they’re driving to worry that people on bikes are totally unpredictable (like a deer).

After Thomas spoke, there were great questions and interactions between Thomas and the reporters in the room. All in all it was an important and valuable event. The more reporters know about these issues, the better their coverage will be, and everyone in our city will benefit.

- Learn more about bike law from Thomas’ excellent online article archive.

UPDATE: To follow up on the


DISCLAIMER: Mr. Thomas and his law firm currently advertise on BikePortland.org.

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  • Jackattak April 29, 2010 at 12:11 pm

    TERRIFIC article! Thanks Jonathan, Elly, and especially Mr. Thomas.

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  • Brian Libby April 29, 2010 at 12:20 pm

    Great to see this profile of Ray Thomas. I wrote a feature on him years ago for The Bear Deluxe and have wondered what he’s up to.

    Hope it’s OK if I post my story here:

    “Behind Bars: Lawyer Ray Thomas Lends Bicyclists His Power of Attorney” (1998)

    Slumped in his chair on a bright June afternoon, Ray Thomas is the picture of exhaustion. Although the Portland, Oregon lawyer is probably best known as a leading advocate of bicyclists’ rights, Thomas has just won $11.5 million for a young man paralyzed from the neck down by an on-the-job injury. The compensatory damage award is the largest in Oregon history.

    Lawyers and other staffers at Thomas’ firm, Swanson, Thomas & Coon, are wide-eyed and exuberant over the victory. But Thomas’ piercing eyes show that cases like this one have taken their toll. “The stuff that I have to put in my head in order to do this job-the things that I have to learn, the pictures that I have to take and the people I have to talk to about things that they would likely forget if they could-has made it so that I’ve had a very, very painful life,” Thomas says. “But it’s worth it for me because I can make it do something in court for somebody. That’s the only reason I’m willing to put myself through this.”

    Whether it’s the defense of a bicyclist or the victim of an on-the-job injury, Thomas has devoted his career to helping the little guy, particularly those who face overwhelming odds against receiving compensation. “I try to identify people who are without power,” he says. “Then I try to find out if there’s a way in court, in front of a jury, this person can get some justice.”

    Bicyclists are often in need of the court’s help in securing fair play on the road. Many drivers see bicyclists as a nuisance and believe, incorrectly, that motorists always have right-of-way. Not so under Oregon law, Thomas says. “We can go out into and even take a lane if we cannot ride safely out of the traffic lane. If the bicyclists is as far to the right as practicable, then they’ve got a right to be on the roadway.”

    That theoretical right to the road does not always translate to a fair share of asphalt in reality. “The biggest problem facing bicyclists on the road,” says Thomas, sitting up in his chair with renewed vigor, “is that we’re not treated as equals.”

    An avid rider himself, Thomas was first drawn to the cause of bicyclists’ rights in 1991 after a local organization called the Bicycle Transportation Alliance sought his assistance in suing the City of Portland over the construction of pedestrian bicycle lanes. “A lot of times,” he says, “if somebody’s very seriously hurt it’s easy for them to find a lawyer, but if they don’t have any damage to speak of and a lawyer can’t make any money on it, nobody wants to talk to them.”

    But Thomas was different. With his background defending victims of catastrophic injury, he knew the potential dangers that confront a lonely bicyclist navigating an automobile-packed urban jungle. And because he was an enthusiastic rider himself, this was one issue he took personally. The BTA had itself a lawyer.

    “What I realized,” he says, reflecting on his first few months with the Alliance, “was that a great number of bicyclists didn’t know what the laws were, and that if we used the laws in our favor we could make it so that we have more equality on the roadway.”

    Thomas quickly became a Paul Revere to local cyclists, anxious to educate riders about their rights on the road. He and a fellow lawyer began holding legal clinics for bicyclists on a regular basis. A column in Oregon Cycling magazine would soon follow. Thomas had become a bicycle activist.
    “He’s had a great influence on bicycle riders in the area,” says Karen Frost Meacey of the Bicycle Transportation Alliance. “He offers a great deal of his time for free. I know he has a lot of interest in helping teach people what their rights are.”

    In addition to defending cyclists in court, Thomas and the BTA seek to use some of the cases that reach his desk to advocate for changes in the law.

    “There are some terrible traps in the law for bicycle riders,” Thomas says. Among the statutes most irksome is a provision that bicyclists cannot pass between cars stopped for a sign or traffic light and cars parked along a curb. Ironically, this practice keeps cyclists from having to take a place in the line of cars, the very thing that seems to annoy drivers most. “Last year in the Oregon Legislature we tried to change it, and we didn’t get anywhere,” Thomas says, “but we’re going to try again this year.”

    Another nonsensical law, Thomas says, prohibits bicyclists from crossing at a crosswalk with a “walk” signal at anything greater than walking speed. “It doesn’t make any sense,” he adds. Thomas believes that is one of several instances in which the authorities can’t seem to decide if a bicyclist is a pedestrian or a vehicle. “I think we ought to make it so they can cross at a reasonable speed,” he says, “and then it’s a question of fact whether they were going too fast or not.”
    Like the other clients that Thomas and his firm defend, bicyclists seeking legal action are doomed to being David to auto drivers’ Goliath. But that is exactly why Ray Thomas is committed to staying in the arena. “My greatest inspiration,” he says, “is seeing somebody who’s getting shafted where I feel like I can do something about it.”

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  • Steph Routh, WPC April 29, 2010 at 12:43 pm

    Thanks for the great reminders, Jonathan. And you are right, WPC should rethink its tagline.

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  • Marcus Griffith April 29, 2010 at 12:43 pm

    For cyclists that travel between Portland and Vancouver, knowing the laws can get tricky with the legal differences between the states.

    The “No citation was issued” is factually correct, but often misread to imply no wrong doing occurred.

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  • Jackattak April 29, 2010 at 1:01 pm

    One thing comes to mind when I keep coming back to this article:

    Could you guys have gotten a bit of a better photo of Mr. Thomas?

    :)

    Poor guy looks like someone just told him they have a video of him with an escort.

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  • Steve B. April 29, 2010 at 1:01 pm

    Another big one, which I only recently learned myself, is that while the law says vehicles must stop for someone trying to cross at an intersection, that person can’t just jump out in the street and expect everyone to stop. The law states the vehicle operator must be able to stop in a way that does not “constitute an immediate hazard” to themselves or other road users; meaning, there has to be reasonable time for the person to see you and then stop their vehicle.

    I’d enjoy some further analysis on this. This seems like a legal grey area to me. Quite often we hear “If I stopped, I would get rear ended, so I don’t..” would this hold up in court in tandem with that statute?

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  • Anonymous April 29, 2010 at 1:18 pm

    If I walk into the roadway in front of a vehicle traveling 40 mph, then I as a pedestrian have the responsibility to give the vehicle enough time to safely stop before it reaches me, or be clear of the vehicles path before it reaches where I entered the road.

    That means a safe stopping distance, not a stand on the brakes panic stop.

    That’s why they do crash scene tests, looking at the length of skid marks, and yes how far the body was thrown to determine the speed of travel.

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  • Spencer Boomhower April 29, 2010 at 1:32 pm

    there was a leaflet from the WPC that blared, “Because everyone is a pedestrian” (I wish it said “Because everyone walks,” but that’s for another post)

    I can see wanting to get away from that kind of all-encompassing, passive-verb descriptor – for example instead of saying “cyclist,” saying, “person riding a bike” – but you might want to rethink “everyone walks.” Because not everyone does; some people use wheelchairs. Yet they still fall within the category of “pedestrian.” This occurs to me probably because I just saw something somewhere pointing out how behind the City is in meeting their mandated goals for wheelchair accessible sidewalks. The person writing this post or article or whatever it was (I’m totally blanking on where I read this) rather ruefully compared the City’s slacking on wheelchair access to its promotion of bike infrastructure. So it might be worth – pardon the pun – treading lightly around the subject.

    Anyway, great story on Mr. Thomas. I’ve attended one of his clinics, and got a lot out of it. The media could stand to pay more attention to his message; maybe this story will help.

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  • Jim Lee April 29, 2010 at 1:36 pm

    I got hauled away in an ambulance after a tree root on an Oregon State Parks bicycle path sent me 15 feet over the bars.

    Perhaps I should have sued, but it was not worth the hassle, as health coverage paid all the bills.

    But OSP did not get tagged–cited. Why not?

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  • Marcus Griffith April 29, 2010 at 1:39 pm

    #6: I have seen that defenses unsuccessfully used a few times in court by people trying to fight failure to yield tickets. As a general rule, the presence of tailgates does not mitigate liability. Also, on the pragmatic side, if there was a tail-gater that posed a safety risk, why not just let them pass?

    The sudden entering of a roadway clause is designed to protect drivers from being held criminally liable in situations where there was not realistic time to stop. However, in cases where the pedestrian is killed, it is rather difficult for the pedestrian to tell how he or she entered the roadway. Ever notice how many drivers tell the court that pedestrian just ran into the road way?

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  • Bjorn April 29, 2010 at 1:49 pm

    #5 I believe that photo is from an interview in which Ray is discussing Tim O’Donnell’s death at the hands of suspended driver Jennifer Knight. You may be right that there are better photos out there, but there was a reason for the expression.

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  • Lorenzo April 29, 2010 at 1:50 pm

    “Thomas pointed to a vintage bike map of Portland from 1895 (that’s 18, not 19) and reminded everyone that “We were here first!”

    I would love to see this bike map, is it available online anywhere?

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  • Jackattak April 29, 2010 at 1:54 pm

    @ Bjorn –

    No worries, I was pretty much kidding. :)

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  • Daniel Ronan April 29, 2010 at 2:22 pm

    “The law states the vehicle operator must be able to stop in a way that does not “constitute an immediate hazard” to themselves or other road users; meaning, there has to be reasonable time for the person to see you and then stop their vehicle.”

    I see how this is law on paper, but in reality, when cars are speeding, you’re never going to get to a point where there is “reasonable time” for drivers to stop.

    I think education is great, but education AND enforcement is even better.

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  • matt f April 29, 2010 at 2:35 pm

    Jim Lee #8

    Please tell us you’re kidding. Yeah, it was the Parks’ fault…

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    • Jonathan Maus (Publisher/Editor) April 29, 2010 at 3:02 pm

      Just updated the story with more information about the “immediate hazard” stop law I referenced in the story.

      The applicable statute here is 814.840, which states: “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.” Thomas says this is a “legal opening for drivers to argue after a collision that there was no room to stop.”

      Like many thing, laws are useless and limited in impact unless there is an enforcement and court system to back them up and enforce them properly.

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  • matchu April 29, 2010 at 4:20 pm

    Could you expand on the concept of the “urban deer phenomenon” if at all possible? Did Thomas mention any first hand examples? Sometimes when I’m driving I give plenty of space while waiting for a safe and opportune time to pass cyclists on two lane roads (one lane each direction). As a cyclist, I sometimes find it discomforting when a car follows behind without passing, but I certainly appreciate it as opposed to being “pinched” in a hurried passing attempt. Is my example of the driving giving perhaps too much room an example of the “urban deer phenomenon”?

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  • Scooter April 29, 2010 at 4:26 pm

    Please address Jim from #9

    If you were on a full suspension bike with fat tires a root would not be an issue. Does every road or path have to be suitable for every bike no matter how skinny yours tires are? If you go fast down a gravel road in your car or bike you could end up in the ditch Is the drivers fault. Is the city responsible if you alignment get knocked out adjustment when you hit a pothole or speed bump too fast in a little car? Why does it have to be the Oregon’s fault that you were riding so fast on a bike that is suitable to handle minor bumps in the path?

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  • wsbob April 29, 2010 at 5:46 pm

    “…He also went into detail about how he detests the Oregon law that states people on bikes have the right-of-way in crosswalks and sidewalks but only if they are going at “walking speed”. …” maus/bikeportland

    Brian Libby’s comment/interview-story #2, touched on this also:

    “…Another nonsensical law, Thomas says, prohibits bicyclists from crossing at a crosswalk with a “walk” signal at anything greater than walking speed. “It doesn’t make any sense,” he adds. Thomas believes that is one of several instances in which the authorities can’t seem to decide if a bicyclist is a pedestrian or a vehicle. “I think we ought to make it so they can cross at a reasonable speed,” he says, “and then it’s a question of fact whether they were going too fast or not.” …” Brian Libby #2

    What’s Ray Thomas’s thinking behind this? For reasons of safety, having people cross streets on crosswalks at the speed a person walks, or at least enter the street at that speed seems like a good idea.

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  • bikieboy April 29, 2010 at 6:58 pm

    Lorenzo #12 – “Thomas pointed to a vintage bike map of Portland from 1895…I would love to see this bike map, is it available online anywhere?”

    the Oregon Historical Society (downtown) used to sell them. It’s pretty cool – & “taverns” are marked on it. Not everything has changed in 100+ years.

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  • John Lascurettes April 29, 2010 at 11:34 pm

    Lorenzo, to add to bikieboy’s statement: Clever Cycles also has a copy of the vintage map hung in the hallway between the front and back showrooms. I don’t recall if they sell it.

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  • beth h April 30, 2010 at 10:00 am

    “…laws are useless and limited in impact unless there is an enforcement and court system to back them up and enforce them properly.”

    Right you are, Jonathan. And that’s why, while I applaud the efforts of Thomas and others who are out there fighting for bicyclists’ rights, I’m not holding my breath. I’ve seen the results of too many bike-car collisions where the motorist was clearly at fault and got off with a wrist slap or less because of the pro-car bias in our culture. I have little faith in a legel system that finds it easier and cheaper to leave things the way they are.

    I and a lot of other longtime (30+ years) cyclists are burned out and weary, and can barely muster the energy to keep riding every day, let alone fight the legal battles on top of it.
    For those who still have the energy to fight the good fight, kudos to them.

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  • Charlie B April 30, 2010 at 10:46 am

    “Urban Deer” phenomena is interesting; finally puts a name to something I have encountered quite a bit while riding: I will roll up to an intersection (assume for this exercise, no stop light or sign) timing an approaching car’s progress, anticipating that they have the right away and will continue at similar speed, yet they will see me, assume I am not going to yield and slow way down thus ruining the timing. I will come to a complete stop to allow them the right of way. In the mean time the car comes to a complete stop and we have a little stand off: “no YOU go.” If the driver waves me on, well then . . .

    I have to wonder, however, are these the same people who rant about bicyclists not obeying the rules of the road?

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  • Mark Allyn April 30, 2010 at 11:01 am

    Beth:

    This is an interesting statement, ‘I and a lot of other longtime (30+ years) cyclists are burned out and weary, and can barely muster the energy to keep riding every day’

    I personally find that the longer that I ride (30 plus years) the greater strength that I have.

    I am now 56 (57 this May 8th), and I feel a *lot* healthier than I did when I was in my teens.

    Bicycling has given me much strength, happiness, and stamina.

    Mark

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  • resopmok May 1, 2010 at 1:21 am

    “There were more advocates in the room than working journalists. The two that did show up…”

    This really is not acceptable, as this sort of information is crucial to the better education of the public (since they won’t read/remember the laws of their own accord). Unfortunately, until Ray Thomas begins purchasing significant ad space and paying media paychecks, I doubt his message will land on those deaf ears. It’s not because of staffing issues and deadlines that no one came, it’s because it isn’t important enough to them. They don’t care about the law, or generally portraying stories in a factual, objective manner. Factual knowledge that allows them to do their jobs better does not increase their viewership or paychecks, so why bother? Maybe things have changed since I last watched TV, but I seem to remember a lot of commercials selling cars, not bikes. Money talks, facts walk.

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  • Jen May 1, 2010 at 1:32 am

    Just a quick sidenote: at least twice a week coming north on fourth around PSU (from OHSU) where the bike lane is the middle lane for a few blocks, I will stop for pedestrians who are clearly asserted at non-lighted marked crosswalks (because the law is they have the right of way and I have to stop for them)and still have cars blow by me on both sides (and sometimes one behind me honking)… is there a law for that?

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  • beth h May 1, 2010 at 1:24 pm

    @ # 24:

    I was referring to emotional strength as it specifically relates to the politics of bicycle transportation. (I shoulda been clearer.)

    Happy riding –Beth

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  • Dan May 2, 2010 at 9:03 am

    Same old story from commercial news sources: “Fire destroys home… cause yet to be determined”, then does the cause ever get reported? What do you think.

    They’ve got a moral obligation to inform and enlighten, but it rarely jives with their money making objectives.

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  • GlowBoy May 3, 2010 at 9:45 pm

    Although I almost always find myself agreeing with Ray Thomas, I have to echo wsbob’s (#19) questioning of his opposition to the “walking pace” law. If you’re blasting through a crosswalk at 15-20mph I don’t think the expectation that all drivers should expect to see you coming at that pace. Even runners often catch motorists off guard, and the smart ones know to slow down a bit and keep their eyes peeled if there’s a vehicle waiting to turn.

    I too am frustrated by the “urban deer” syndrome and drivers often stopping for us when we have the right of way. For some reason this always seems worst in the spring, maybe because the increased presence of bicycles has awakened them from their slumber.

    It is especially frustrating to me when I am out with my young son on the trailerbike, because even when I’m stopped at a stop sign at a not-very-busy intersection and just have to wait a few seconds for traffic to clear, someone often will “feel sorry for us” and stop. This idiotic emotional response just creates more confusion and congestion because I’m often waiting for more than just that one car, and can’t just go because they think I can. If I do successfully wave the car on, if my child is with me it is almost certain that the next car, observing that “something” happened there, will ALSO stop for me.

    Bottom line is if I’m alone I will usually try to wave the overly polite but ignorant motorists on. But if my child is with me and someone stops for me, I will just go if it is safe to do so. I appreciate people’s concern for my child’s “safety”, but it would be nice if people just followed the rules of right of way in the first place.

    But I can still understand why motorists feel that way. I can’t tell you how many times in the last couple weeks I’ve yielded to pedestrians or waited my turn at a stop sign, only to have another cyclist blow right through. No wonder motorists think we’re unpredictable. We are!

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