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Disappearing bike lane case settles out of court

Posted by on May 18th, 2011 at 2:06 pm

Where the bike lane ends.

Remember the disappearing bike lane case? I’m happy to report that it reached a positive conclusion — at least in the civil case of Carmen Piekarski.

First, let’s go back to December 2009…

Piekarski was riding her bike eastbound on SE Hawthorne approaching SE 10th Ave. While in the intersection, the operator of a Toyota Prius, Ellen Metz, turned right and hit Piekarski. The right-hook collision resulted in several injuries for Piekarski and she spent months in physical therapy.

Metz admitted to the last-minute turn and the cops on the scene issued her a citation for violation of ORS 811.050.

Seems open and shut right?

Not to Multnomah Country Circuit Court Judge Pro Tem Michael Zusman. He ruled that because the bike lane wasn’t painted all the way through the intersection, it was technically not a bike lane — so he dismissed the citation.

Zusman’s decision was immediately called into question by Piekarski, legal experts and it even failed to pass muster with policies laid out in the Oregon Department of Transporation’s Bicycle and Pedestrian Plan.

Hoping to find justice, Piekarski hired local lawyer Mark Ginsberg. Ginsberg told me today that Metz’s insurance company has settled the case. Ginsberg says, the insurance carrier, “Recognized they were civilly responsible” for the collision.

“The moral of the story is,” Ginsberg added, “maybe it [the judge's ruling] was just a one-off event… When faced with the facts of the case, the insurance company did right thing and got resolution.”

While this conclusion worked out well for Piekarski, this is just one civil case. Unfortunately, the precedent Judge Zusman set with his surprising decision still stands. While Judge Zusman’s decision doesn’t set a precedent, the law itself could use a bit of clarification so this doesn’t happen again.

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  • a.O May 18, 2011 at 2:11 pm

    That last paragraph seems pretty suspect to me given that Zusman’s ruling still stands despite the outcome of this particular case. Seems lik you ought to add “…if you hire Mark Ginsberg.” Other insurance companies might not be so quick to admit their client’s fault…

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    • Ryan May 18, 2011 at 3:05 pm

      Not to worry, district courts like this one don’t set precedent.

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  • Joseph May 18, 2011 at 2:11 pm

    That Judge has to be out of his mind. Sounds like someone has something against bikes and it taking it out on someone else…

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  • NW Biker May 18, 2011 at 2:15 pm

    So a bike lane isn’t technically a bike lane? And even if that made sense, what does that have to do with the legal liability of a driver hitting a cyclist? I’m glad that the insurance company took care of it, but I’m still boggled by the lack of logic demonstrated by the judge.

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    • Jonathan Maus (Publisher/Editor) May 18, 2011 at 2:52 pm

      NW Biker, follow the links in the story to try and understand Zusman’s logic. I spoke w/ him after the ruling.

      In a nutshell, he was being 100% literal in his interpretation of the law… but as any expert knows, Oregon Law is full of grey areas that require some discretion among thoughtful human beings in order to be interpreted with any amount of logic.

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  • Gabriel Amadeus May 18, 2011 at 2:15 pm

    Yeah, I’m glad that this ended well, I just wish it had set more of a legal precedent on the side of sanity.

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  • K'Tesh May 18, 2011 at 2:18 pm

    Is the judge still seated?

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    • Dude May 18, 2011 at 9:49 pm

      Of course he is still seated. It is his job to uphold the law, which is what he did.

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  • are May 18, 2011 at 2:23 pm

    apples to oranges, kids. the driver was liable for money damages for negligently hooking the cyclist, but not guilty of a traffic violation for entering a striped bike lane where there was none. you don’t like the law, change the law. zusman just doing his job.

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    • a.O May 18, 2011 at 3:04 pm

      There is nothing in the law that says bike lands stop at intersections. He is just doing his job POORLY. There is no need to change the law, only perhaps clarify it, which can be done through a sane apellate court ruling.

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    • a.O May 18, 2011 at 3:08 pm

      And it’s not apples to oranges, because traffic law violations help establish civil liability, and are sometimes negligence (i.e., liability) per se, meaning that they are all you need to establish liability.

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    • wsbob May 18, 2011 at 11:27 pm

      “… but not guilty of a traffic violation for entering a striped bike lane where there was none. …” are

      That’s about right. That’s what the law says; that bike lanes exist where solid lines indicate their presence, and not elsewhere. Making his decision through a thoroughly literal interpretation of the law is how Zusman got himself thrown into such a controversy.

      In public statements, Zusman was very brief in explaining his reasons for deciding the way he did, but indirectly, the suggestion was, originating from earlier cases, that he and other people were concerned that the legislature was neglecting its responsibility to get the the writing of the law straight in the first place, to avoid these kind of outcomes.

      Glad it worked out for Piekarski, in that the drivers insurance company recognized it had a responsibility to pay up.

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      • wsbob May 19, 2011 at 12:00 am

        About the subject of why and how Zusman found himself deciding as he did, from a January 15th, 2010 bikeportland story, ‘Traffic Division Captain weighs in on bike lane case’, one of the people commenting to the story, Cecil, offered an explanation that’s more clearly stated, substantial and accurate than mine:

        http://bikeportland.org/2010/01/15/captain-of-police-traffic-division-responds-to-disappearing-bike-lane-case-28198#comment-1493454

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        • a.O May 19, 2011 at 8:37 am

          Yes, Cecil argues that Zusman was essentially required to interpret the statue the way he did because of precedent from the OR Supreme Court setting forth rules for statutory interpretation.

          She then concludes that, because Zusman attempted to follow those rules in this case, his result is reasonable and his jurisprudential intelligence should not be questioned.

          But I respectfully disagree. No amount of rules on statutory interpretation can justify an absurd result, and I’m sure there is OR Supreme Court precedent saying that as well, as it is a well-established maxim of statutory interpretation.

          In fact, it is all the more damning that Zusman apparently used the statutory interpretation rules that the Supreme Court designed to avoid mis-understanding Oregon law and yet he still reached a completely ridiculous result.

          And since we are not here to brief the issue on the merits but rather to discuss, among other things, whether this is good policy, my educated opinion is that Zusman is either not very good at understanding the Oregon Vehicle Code and the Supreme Court’s guidelines for interpreting statutory law or has an anti-bike agenda.

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  • q`Tzal May 18, 2011 at 2:23 pm

    Doom n` Gloom here:

    Main Post
    Now you can rest easy knowing that — even when the paint of the bikeway stops in the middle of an intersection — your legal protection doesn’t.

    How? As you said:

    Main Post
    Metz’s insurance company has settled the case. Ginsberg says, the insurance carrier, “Recognized they were civilly responsible” for the collision.

    If this was an in of court settlement all it shows is that a particular insurer saw bad odds on fighting the civil case; if this was an out of court settlement the irrational judgment of Michael Zusman still stands as legal precedent.

    I applaud Piekarski and Mark Ginsberg for their win but I am impressed and thankful for the level headed rationality Metz’s insurance company. They could have fought this and Michael Zusman’s “ruling” would have provided some ammo but they chose to do the ethical thing. It was probably also the cheapest.

    Unfortunately Michael Zusman’s “disappearing bike lane” seems to have been left intact; it will bite someone in the butt hard.

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  • Jonathan Maus (Publisher/Editor) May 18, 2011 at 2:56 pm

    Thanks q’Tzal and a.o.,

    I’ve edited the story to make it clear that this only impacts Piekarski’s civil case and that the precedent set by Zusman still stands in terms of the violation.

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    • wsbob May 19, 2011 at 10:49 am

      It’s apparently correct that Zusman’s decision: based on his interpretation of the law, which concludes that where bike lanes aren’t marked by a solid line between the bike lane and the main traffic lane, the bike lane doesn’t exist. …still stands.

      That means that at some point, another hapless cyclist may find themselves in a similar situation to Piekarski, faced by a judge that believes they’ve got to literally interpret the law relating to bike lanes through intersections, just as Zusman did.

      Seems as though just recently, there was some new language in a bill proposal or something else, clarifying that a bike not designated by a solid line through an intersection, does exist where the bike lane exists to either side of the intersection. Can’t remember for sure, or where I saw this.

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  • GreggB May 18, 2011 at 2:59 pm

    I’ve been harassed by cops claiming this very thing…told to dismount and then walk my bike through the intersection of 122nd & E Burnside, before proceeding with continued use of the clearly marked bike lane.

    Since they’re not painted through either; I guess there’s no travel lane through intersections as well. So drivers can just change to random lanes suddenly, without warning…and without repercussions…

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    • a.O May 18, 2011 at 3:07 pm

      Exactly. This is exactly why this ruling makes no sense. Now when I’m driving I can switch lands in an intersection without warning and not be cited for a dangerous, unlawful, whatever lane change. Stupid, since that is exactly what the law is supposed to prevent and, again, there is nothing in Oregon law that says lanes stop through intersections.

      So either Zusman is a really bad judge or he has an anti-bike agenda. You be the judge. Either way, it aint good.

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      • spare_wheel May 18, 2011 at 4:03 pm

        Zusman could be both. I choose to interpret his ruling as invalidating the mandatory side path law.

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        • wsbob May 19, 2011 at 11:44 pm

          Doesn’t invalidate it… . Just reveals that according to the language in Oregon’s law, there is no sidepath in intersections. Can’t ride on something that doesn’t exist.

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    • Chris I May 18, 2011 at 3:38 pm

      I thought 122nd had signs saying “right turn only except bikes”?

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      • Toby May 18, 2011 at 4:27 pm

        Google maps street view confirms it does.

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    • shirtsoff May 18, 2011 at 7:40 pm

      I’ve wondered about this myself. If a lane does not continue if it is not clearly marked then would it be illegal for an operator of a vehicle to swerve across lanes while in an intersection perhaps in the face of oncoming traffic before returning to the appropriate marked lane at the end of the intersection? Using Judge Michael Zusman’s literal interpretation of Oregon law, this would be permissible.

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    • wsbob May 19, 2011 at 11:55 pm

      “…Since they’re not painted through either; I guess there’s no travel lane through intersections as well. So drivers can just change to random lanes suddenly, without warning…and without repercussions…” GreggB

      That might apply to the Piekarski-Metz situation if Metz, had been changing lanes in an intersection; but she wasn’t. Metz was making a right turn onto a different street.

      I don’t know if it’s written in the law, but what I’ve been told and accept about traveling on the main lanes of travel through an intersection, is that you’re supposed to hold your direction of travel until you’ve cleared the intersection. A right turn would be different. To make a right turn, a road user has to change their direction of travel to proceed out of the intersection.

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  • BURR May 18, 2011 at 5:38 pm

    Zusman is a guy who owns a Deli, who also has a license to practice law and happens to be a part time judge (that’s what pro tem means).

    How well do you think he really understands the law as it applies to cyclists? He might even have an ax to grind as a business owner, since the city took away a lane of traffic on SW Stark in front of his business and made it into a buffered bike lane that is seldom used.

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  • rixtir May 18, 2011 at 8:34 pm

    Trial courts don’t set precedent. The ruling is still absolutely wrong on the law, but there is no precedent set in this case.

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  • JohnS May 18, 2011 at 9:23 pm

    Here’s a question: What if there were no bike lane at all and the cyclist was still hit by a car that turned w/out looking. Does this mean the cyclist is only protected (legally) when cycling in a bike lane?

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    • Dude May 18, 2011 at 9:54 pm

      If that were the case, then the bike would be guilty of “passing in an intersection”

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  • Joe Rowe May 19, 2011 at 8:52 am

    He does this every day, year after year for the bike community. His total contributions eclipse some of the work from connected folks who happen to win the BTA Alice Awards. He does it pro bono or at great risk to a case that can’t be won. He’s constantly on the shift email list, keeping everyone in touch with free legal advice and insurance sanity. There’s a liability to him whenever he speaks. Mark’s too humble and too polite to mention this.

    http://www.bta4bikes.org/alice/winners-all.php

    He was one factor that helped me win a 2004 critical mass case on appeal, now a precedent. Cops are giving fewer illegal orders to move along, and rides like critical mass and pedalpalooza can’t be declared “illegal” as Officer Sessum noted on record.

    Turning the BTA ship back on course will take Rob several years. I hope this is on their radar as an error to remedy once and for all.

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  • Joe Rowe May 19, 2011 at 9:22 am

    I’m not a laywer, but I think Zusman’s case has negligible impact on other cases because it’s lower courts. Could a layer chime in here.

    Depending on what the judge said, Piekarski could nail him for Judicial Fairness rules. Get the transcript,read it for lack of “fitness” and go to this site:

    http://www.oregon.gov/CJFD/
    or call
    (503) 626-6776

    And,
    Report the case to the BTA, the BTA should keep records of these patterns.

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  • Carmen May 19, 2011 at 9:37 am

    The key thing that made even pursuing this case possible was a good solid witness. Rob Daray was the bicyclist who witnessed this accident. He took the time to stay at the scene for the Police report AND came to Court hearing and spoke. Without his solid account of what happened and extra effort on his own time, this wouldn’t have been possible. Thank you Rob Daray, you made a huge difference.

    To everyone: If you witness something wrong or bad, it is so important to step forward and be a witness for the person affected. It might not change the world but it will definitely make a difference to the individual you help and change their world for the better.

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    • random rider May 20, 2011 at 10:30 am

      Great advice. Witnessing a collision but not stopping to assist or provide information to the police makes it much more likely that no legal action will be taken against the driver and that any civil case will be much harder to win.

      We owe it to each other to play the part of the good citizen in this capacity.

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  • Steve Brown May 19, 2011 at 11:12 am

    It seems that according to Zusman’s ruling, the driver should have been cited for any number of violations of hitting another vehicle,just not crossing into the bike lane, something in the real of reckless endangerment.

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    • are May 19, 2011 at 12:37 pm

      that’s as may be, but she was not cited, and the judge can’t just make stuff up. the error here was made by the officer writing the ticket.

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      • wsbob May 19, 2011 at 11:37 pm

        That’s right. Maybe the cop, like a lot of other people as well, didn’t know the specifics of the laws relating to designated presence of bike lanes, and just assumed that bike lanes can exist in intersections even though, they don’t have a solid line that establishes their presence.

        Legal uncertainty about whether bike lanes can exist in intersections is a problem. If not the solid line, or some clear understanding that under certain conditions, a bike lane may exist even though it doesn’t have a solid line establishing it’s presence, what’s to tell road users unequivocally, whether or not a bike lane continues through an intersection?

        If bike lanes don’t exist in intersections, then cyclists shouldn’t be entering intersections to the right of the main travel lane as if bike lanes were there. Eventually, some road user is going to resort to the ‘No bike lane in intersection’ rationale for not having waited for a cyclist at an intersection where the solid line stops.

        Not long after it was reported, most everybody seemed to kind of forget about the incident involving Piekarski and Metz. This incident happened, I believe, while the legislature was between sessions. Did anyone talk with a legislator to put together a bill that would have clarified what road users are supposed to presume about bike lanes approaching intersections?

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  • Elizabeth Holmes May 19, 2011 at 8:09 pm

    I concur. Mark Ginsber’s contributions have exceeded that of many recipiants of the Alice Award. But the point of the Alice Award isn’t to honor bike leaders; its just a toy the BTA handouts to make “friend” in the political play ground.

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    • are May 20, 2011 at 10:02 pm

      do you have a particular recipient in mind?

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  • Paul Johnson May 23, 2011 at 9:03 pm

    I noticed Eugene started striping bicycle lanes clear through the intersections. And many one-way streets now have bicycle lanes on both sides.

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