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Judge: Woman hit in unpainted bike lane is not protected by law

Posted by on December 18th, 2009 at 10:26 am

A Portland judge has ruled that when
bike lane striping vanishes, like in the
intersection of SE 10th and Hawthorne, so
does a rider’s legal protection.

When Portlander Rob Daray witnessed a right-hook collision on his commute home last summer he thought it was obvious who was at fault. So did the police officer who cited the operator of the motor vehicle for “failure to yield to a bicycle.” Even the woman driving the car admitted she made an abrupt right turn without checking her blind spots.

But when the case came up in traffic court, the judge came to a different conclusion and now Mr. Daray and others familiar with this are worried that people who ride bicycles are vulnerable — not just on the street, but in the legal system as well.

“This was such a cut and dry accident that it is shocking it was ruled this way in a “cycling” city like Portland.”
— Rob Daray, lead witness in the case

On June 10th, Mr. Daray was riding his bicycle eastbound on SE Hawthorne Blvd just before 5:00 pm when he looked up and saw a gray Toyota Prius turn right onto SE 10th. The Prius, driven by Ellen Metz, collided with a woman on a bicycle who was traveling in the same direction. The woman on the bike was Carmen Piekarski a cartographer who works for the City of Portland’s Bureau of Planning and Sustainability. She was thrown from her bike and sustained serious road rash and is still in physical therapy for a shoulder injury.

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Portland Police Officer Dean Hedges cited Ms. Metz for violation of ORS 811.050 which states that: “A person commits the offense… if… the person does not yield the right of way to a person operating a bicycle… upon a bicycle lane.”

Download Zusman’s ruling
– 60KB, PDF –

According to court documents which we’ve obtained, during the resulting traffic court trial, Ms. Metz admitted that she “made a last-minute decision to turn on 10th and did not check her blind spot prior to making the turn.” It seemed like an open-and-shut case. But when Mr. Daray, the lead witness in the case, received the final judgment in the mail yesterday he was shocked to learn that the judge found Ms. Metz not guilty and dismissed her ticket.

According to the official judgment written by Multnomah Country Circuit Court Judge Pro Tem Michael Zusman, the ruling came down to this: Was Ms. Piekarski “upon a bicycle lane” when the collision occurred?

Most intersections in Portland do
not have bike lane striping.
(Photo © J. Maus)

To find his answer, Zusman considered the “statutory construction” of the statute. For guidance he looked to ORS 811.060 which states [emphasis mine] “‘bicycle lane’ means that part of a highway, adjacent to the roadway, designated by official signs or markings…”

With that definition in mind, Zusman found that the collision did not occur “in the marked area comprising the bicycle lane.” His thinking was further bolstered by other Oregon statutes where he found that the, “Legislature generally accords significance to the presence of road markings in assessing the occurrence of various location-specific “rules of the road” violations.”

In the final chapter of Zusman’s judgment, he writes:

“Because Defendant’s alleged failure to yield to a bicyclist was in an unmarked portion of the roadway, a required element of the violation charged is absent and the Defendant cannot be adjudged liable for the violation.”

Mr. Daray was outraged (his wife Wendy wrote about the case on her blog). “This was such a cut and dry accident,” he said, “that it is shocking it was ruled this way in a “cycling” city like Portland.”

We checked in with three experienced lawyers to get their opinion. All three feel Judge Zusman has made an error in his interpretation of the law.

“For the judge to find that bike lanes don’t continue through the intersection, he’d have to find that car lanes don’t continue either.”
— Mark Ginsberg

Here’s the reaction from Mark Ginsberg, a partner in the Portland law firm Berkshire Ginsberg, LLC: “For the judge to find that bike lanes don’t continue through the intersection, he’d have to find that car lanes don’t continue either… We have statutes that say it’s illegal to change lanes in an intersection. I believe that lanes continue through intersections. The fact that the lane is not painted doesn’t mean it doesn’t exist.” Ginsberg was also concerned at the message this ruling sends to police officers, who often make their citation decisions based on what they think will stick in court: “What does this tell the cop who goes through the trouble of finding the proper citation and then gets it overturned?”

“The court’s reasoning ignores the Legislature’s obvious intent to protect cyclists…”
— Bob Mionske

Bob Mionske, an author and legal columnist for Bicycling Magazine, told us “The court’s reasoning ignores the Legislature’s obvious intent to protect cyclists from drivers who are turning across the bike lane.” Mionske also pointed out that the Oregon Department of Transportation’s traffic manual “implies that bike lanes do indeed continue across the intersection.”

“Even if the judge feels the bike lane doesn’t exist in the intersection…she was still guilty of an illegal right turn.”
— Ray Thomas

Ray Thomas, who is on the legislative committee of the Bicycle Transportation Alliance and is a partner in the law firm of Swanson, Thomas and Coon, said that he also disagrees with the judges ruling. “Even if the judge feels the bike lane doesn’t exist in the intersection, which I think is wrong, she [Ms. Metz] was still guilty of an illegal right turn.”

Thomas said the definition of a bike lane through an intersection is not clear enough in the ORS and he’d like to see it changed. He recommended that Piekarski file a citizen’s citation for the illegal right turn. However, since the collision occurred on June 10th, the six-month statute of limitations has just recently expired.

“It feels like adding insult to injury… She had to replace her hubcap, I had to replace my shoulder.”
— Carmen Piekarski

Wendy Daray, wife of lead witness Rob Daray wrote about the case on her blog yesterday. She said when her and her husband opened the mail and read the judgment it “…filled us with emotion. Confusion, frustration and anger are at the top of the list.”

“Why doesn’t the protection extend into the intersection?” Wendy wrote on her blog, “The ORS should be updated to provide better legal protection for cyclists who are hit by negligent or ignorant drivers. If “Every Corner is a Crosswalk” in Oregon, then every intersection should “Contain the Lane” for cyclists.”

Piekarski told us this morning that she was “surprised” at the judge’s ruling. “I was riding straight, not doing anything radical. If I’d been in an automobile, she would have been at fault.” With a shoulder that still “doesn’t work like it used to” Piekarski said this whole saga has been “really disheartening.”

“I didn’t want this to be hard. I didn’t want to be greedy. I just want to be well. It feels like adding insult to injury. She [the woman who hit Piekarski] was completely remorseless and completely lied in court [Metz claimed Piekarski hit her]. She had to replace her hubcap, I had to replace my shoulder.”

Since this was a traffic court trial, Piekarski could file a civil suit to recoup damages for her injuries. She told us she’s weighing her options. Regardless of whether or she decides to proceed, it seems clear that the definition of a bike lane must be clarified as soon as possible.

NOTE: We love your comments and work hard to ensure they are productive, considerate, and welcoming of all perspectives. Disagreements are encouraged, but only if done with tact and respect. If you see a mean or inappropriate comment, please contact us and we'll take a look at it right away. Also, if you comment frequently, please consider holding your thoughts so that others can step forward. Thank you — Jonathan

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Sean
Guest

Shameful!

Member

I call BULLSHIT!

amos
Guest

Unbelievable.

Matthew
Guest
Matthew

This is sickening and disheartening, but I’m confused.

Ms. Metz admitted that she “made a last-minute decision to turn on 10th and did not check her blind spot prior to making the turn.”

Okay, so the driver basically admitted she was in the wrong. But then at the end of the article, the woman who was hit is quoted as saying:

She [the woman who hit Piekarski] was completely remorseless and completely lied in court.

Which is it? Remorseless I could see, but it sounds like the driver admitted to her own carelessness, which hardly seems like a lie. Am I just spaced out and missing something? (it’s a possibility)

Oh Word?
Guest
Oh Word?

I feel bad for Pieskarski.

Does this mean the city will paint stripes through intersections that have bike lanes?

While they’re at it, they should paint crosswalks at every corner.

MeghanH
Guest
MeghanH

So would “bike lane magically disappears at every single intersection in the city” be a legit reason to leave the bike lane according to state law now? This case is not giving me a lot of faith in bike lanes in general, considering I use this same one every morning…

Yikes and double yikes.

h.
Guest
h.

So, by this logic, any car on bicycle accident occurring in an intersection is not a violation of the statute? Help me out here – I can’t think offhand of any bicycle lane I regularly use that actually continues through an intersection. Hell, I’m staring out my office windows at bike lanes on heavily trafficked streets that aren’t painted through the intersection.

unotache
Guest

I know what I’ll be doing tonight…

http://www.youtube.com/watch?v=19oo7Ejq9WI

Who’s in?

andy
Guest
andy

What a load of crap.
I’m sick and tired of watching motorists break the law, injure and kill, and not be held responsible in any way. I’m sick and tired of the police refuse to apply the laws. I’m sick and tired of toothless traffic laws with loopholes big enough to drive a semi-truck through (while the driver is eating a breakfast burrito and looking for his cell phone on the floor). I’m sick and tired of legislators who will not pass safety laws because they believe that the “right” to drive is more important than the right to live.

This isn’t just a bike issue, or a pedestrian issue – it’s an issue for everyone, motorists included, who use the public right of way. It’s about people’s lives. 400 people die every year on the roads in Oregon. If people aren’t willing to drive responsibly, drive like lives are hanging in the balance, then they should not be on the road. Period. (The same applies to cyclists who ride recklessly around pedestrians.) You injure someone, and you are at fault, at the very least you should have your license suspended. If you kill someone, and you are at fault, at the very least you should have your license permanently revoked.

John Lascurettes
Guest

Matthew, more than likely (as is common) the driver at the scene and to the police officer admitted to the “sudden” right turn, then changed her tune in court. Happens all the time. It’s why it’s important to record everything you see and hear at the accident as soon as you can; get corroboration from witnesses too.

are
Guest

failure to yield to a bike in a bike lane was the wrong charge. failure to leave a safe passing distance, failure to keep a proper lookout, etc. might have stuck. this is what you get when you force bikes to the right.

knitsy
Guest
knitsy

note to self: I’m not legally protected in the intersection when I ride my bike. Are you f***ing kidding me?!

Hart
Guest

Disbar this jerkwad.

boriskat
Guest
boriskat

What I’m wondering (pardon my naivete) is what happens if/when I get hit on a road that I’m biking on, that DOESN’T HAVE A BIKE LANE AT ALL? (Given the language: ORS 811.050, “Failure to yield to a rider on bicycle lane.”) I feel like this sets an incredibly dangerous precedent. Also, does this judge have some sort of anti-cyclist bias or what?

suburban
Guest
suburban

With the statute of limitations over, is this a final ruling? Was the cyclist supposed to yield to a car who did not correctly indicate? Does anyone have any good news from traffic court re: bikes? I love me some litigious dialogue but this is just illogical.

suburban
Guest
suburban

With the statute of limitations over, is this a final ruling? Was the cyclist supposed to yield to a car who did not correctly indicate? Does anyone have any good news from traffic court re: bikes? I love me some litigious dialogue but this is just illogical.

justa
Guest
justa

…seriously?

Psyfalcon
Guest
Psyfalcon

#8.

It should be a dashed line. There is an example oh Beaverton-Hillsdale at Bertha. That one is even in blue.

Tacoma
Guest
Tacoma

Did we just move into the Twilight Zone?

@ MeghanH #5,
That what I am thinking. Since the bike lane “magically disappears” at every intersection, a person on a bike would need to move into the car lane (that “magically” continues to exist) at every intersection. That’s what I’m thinking.

BlindJudge
Guest
BlindJudge

Look at that pic of the intersection and tell me the lines of the left traffic lanes aren’t missing too. The painted lines are left out for an intersection as not to confuse intersecting streets that run perpendicular. It’s implied that the bike lane continues forth if there’s a corresponding bike line at the other end of the intersection. What’s a cyclist to do without an implied intersection bike lane? Is she supposed move left and take the whole lane entering the intersection then quickly jump back in to the bike lane at the end of the intersection? We need cyclists to wear giant signs on their backs stating “UNLAWFUL TO TURN RIGHT FORWARD OF CYCLIST” and mount video cameras on handlebars until the driving public overcomes this almost universal ignorance in bike lane traffic law.

buzz
Guest
buzz

I don’t get this. Doesn’t a cop have to document when things like this happens so people do not go in and change the story? If so, why was that police report not brought in as evidence?

I am dumbfounded and disheartened to read this!

velo
Guest
velo

So judge Zusman is clearly an idiot who doesn’t understand the law or what he is doing Fire the asshat. Judges work for the public and need to be accountable to the public. No reason for our tax dollars to support this kind of weak legal mind. What is the process to purge a judge?

Does the judge get that ANY lane that is not stripped would result in some sort of crazy suspension of traffic laws if his logic stands? I mean, we can drive the wrong way, make crazy turns, etc all because there is no line at that moment. This is an outrage.

Logan
Guest

Jonathan,

While I don’t agree with the judge’s ruling could we use this as precedent to get the city to paint bike-lanes on all intersections? That would preclude this judge and others from using this weird exemption in the future. At the very least if the city didn’t want to spend money on more paint they could petition a clarification to this law to address the issue. In other words can we work within the system on a number of fronts to address this issue?

Cheers,

West Cougar
Guest
West Cougar

These traffic court judges are absolute bozos.

When dealing with fixed gears the strict wording of the law, which specifies precise criteria for stopping performance, has been explicitly ignored in lieu of the judge’s prerogative of what he thinks should be appropriate to the lowest quintile rider. Now when dealing with bike lanes another judge invents a totally new concept based on his strict reading of statute. Such inconsistency is ridiculous; that it shows a pattern of bias against cyclists is an outrage.

Expecting the legislature to be able to fix these guy’s every muddle-headed whim is impossible. The problem is not the statutes or the legislature, the problem is the judges.

BURR
Guest
BURR

deserves to be appealed.

one more reason not to install bike lanes or cycle tracks or any bike specific infrastructure to the right of potential right turning motorists.

I stopped using this bike lane several years ago, because of it’s substandard width, rude cyclists passing on the right, and the presence of dooring and right hook hazards. These days I prefer to cut over to SE Clay or Market on SE 6th or 7th, there are no hazardous bike lanes and a lot less traffic on the parallel streets.

Evan Manvel
Guest
Evan Manvel

Sounds like a perfect bill for the February session. The BTA should work with Jules Bailey, Michael Dembrow, or Jackie Dingfelder to take care of it.

Shetha
Guest
Shetha

If the marking ended then she should’ve been treated like a vehicle that was in the lane. The driver would still be at fault. The markings are a poor excuse for not protecting the victim, here. Also adding insult to injury… the Prius probably, in it’s electric eliteness, wasn’t making any noise and thus wasn’t as detectible by the victim. I hope that Mrs Piekarski feels better soon. I think she provides a good case here for the need to clarify the law!

wsbob
Guest
wsbob

Technically, on a strictly literal reading of the law, I suppose Judge Zusman is correct in his ruling, but is he really serving the public well, having made it as he did?

The picture above with the caption:

“A Portland judge has ruled that when
bike lane striping vanishes, like in the
intersection of SE 10th and Hawthorne, so
does a rider’s legal protection.”

That photo does depict the actual intersection where the collision occurred…doesn’t it? It clearly shows the bike lane markings leading up to the intersection and resuming on the other side of it. Common sense should be sufficient to inform most of the public that a bike lane so marked, continues through the intersection and doesn’t disappear simply because a painted line or other marking isn’t indicating that particular section of the bike lane. Especially when a person on a bicycle is actually riding there at the time another road user decides to make a turn in the direction of the person on the bike.

A judge could just as easily have brought a ruling that interpreted the law as such, saving everybody, particularly the injured person, a lot of time, energy, and expense.

By the way, here’s an interesting short biography about Judge Michael Zusman:

Profi le – Michael C. Zusman
Multnomah County Circuit Court Referee
By Kathryn L. Villa-Smith, Gevurtz Menashe et al and Court Liaison Committee member

Jonathan Maus (Editor-in-Chief)
Guest

Logan,

Yes. We can and should work to address this issue. I agree with Mr. Manvel (former BTA ED btw) above that it might be something urgent enough to rectify in the special February 2010 session instead of waiting for 2011.

All we need is to amend the ORS to state that when a bike lane drops through an intersection, people traveling in a bike lane still have the same legal protections afforded when the paint exists.

Another issue that Ray Thomas mentioned to me is because PBOT currently paints some intersection bike lanes, it confuses issue and essentially implies that ones w/o paint are somehow different.

Bottom line here is that — as we’ve experienced on countless other issues — the Oregon Vehicle Code and ORS is woefully inadequate in dealing with non-motorized traffic. It was created with cars in mind and bike advocates have had to chip away at that little by little.

There are way too many grey areas right now and it’s simply not OK that those grey areas adversely impact our safety.

ME 2
Guest
ME 2

This story is emerging at an interesting time. I, like many others take N Tillamook down to the Rose Garden TC. A bike lane was recently painted just south of N Broadway. It curves around and ends at the intersection by the arena.

Since it’s new, I’ve been self conscious that a car will come up behind me as I get funneled into the lane. This ruling just confirms my belief that I’m going to ignore the bike lane and take the traffic lane from now on.

Schrauf
Guest
Schrauf

Pro Tem means this poor excuse for a judge is actually only an attorney, or else a lower court judge, substituting as a Circuit Court judge.

Obviously he could use some more training. Appeal! I wish I was qualifed to help because I would gladly do so for free.

Joe Rowe
Guest
Joe Rowe

Don’t get mad, get even, Judge Zusman is now on the watch of the bike community, and we will be digging into his past.

It’s easy to file an appeal. There is no way are 3 judges in Salem will agree with this biased judge.

Then file a Judical Complaint, which will make life difficult for the Judge.

I won my appeal and had more than enough evidence about the Judge’s bias including his disregard for law and not allowing me to make closing statements by interupting me with “let me clue you in here”.

I did not file a complaint because the judge had a decent overall record with the bike community. But I’m still watching him and now this Zusman.

KJ
Guest
KJ

@ME2
that new bike line is way too narrow especially for the angle of the curve when it starts…it’s alreay full of gravel from allllll that ice we had..=/
I take the lane still too.

PDXCyclist
Guest
PDXCyclist

#5/#19 I read it as meaning you’ll either need to take the lane at each intersetion or get off your bike and walk it through the intersection.

Sounds like a fun ride.

jim
Guest
jim

maybe bikes should take the lane in intersections rather than passing turning cars

BURR
Guest
BURR

Schrauf #31 is exactly correct – Pro Tem Judges are not real judges

again – appeal, appeal appeal!

jim
Guest
jim

they won’t even paint a white stop line on the side street where the stop sign is, or a crosswalk. (see on the st. at the rt in pict.)

Carter Kennedy
Guest
Carter Kennedy

So this means that at the point where the bike lane stripe ends, the bike and car lanes merge, and then, thirty feet later, they re-separate. Bikes going 10 MPH and cars going 30 MPH merge like this every 200 feet.

It is so obvious now!

Thanks for clearing that up for us, Judge.

peejay
Guest
peejay

Not sure you can appeal a dismissal of a charge; only a conviction. It violates the prohibition against double jeopardy. However, a nice civil suit would be in order. Interesting that the police at least tried to do the right thing. But I do believe that it underscores the utter inadequacy of our traffic law.

Anonymous
Guest
Anonymous

No protection as provided by the legality of the bike lane, but once the bike lane ends isn’t the bicycle just another vehicle using the same lane as the car, in which case the car was passing illegally and making a right turn illegally.

John Lascurettes
Guest

To people calling for an appeal: can that be done? Didn’t the judge already rule the defendant innocent by his ruling? I thought the prosecuting side could not appeal an innocent ruling and that only a defendant found guilty could appeal a ruling. Was this not a criminal case?

Lazy Spinner
Guest
Lazy Spinner

Jim @ #35 has it right! That is just good old fashioned defensive riding. The kind smart vehicular cyclists have utilized for many years. Never assume that the driver uses their mirrors or has any clue that you are there. It’s called self-preservation. But I keep forgetting, we want more mindless Nu-Freds pedaling about town without a care in the world blissfully reinforcing our super bikey PDX vibe. Common sense and personal responsibility must be sacrificed for 25% mode share!

Bike lanes are crap! They force riders to make the dumbest move on the roadway – passing on the right. Sharrows on the other hand make bikes fully recognized traffic and legally force both cars and bikes to observe the same rules of the road namely, whomever is ahead in the lane has the right of way. Hitting a bike or car from behind is your fault.

Scream and throw tantrums! Write your legislators! Hire a private investigator to find dirt on a pro tem judge! That might get a law passed and some lines painted in about 2-4 years. Guess what? Someone will still get hurt or killed in a right hook caused by careless driving or equally careless riding. The only difference is that a few blog posters will get their thirst for self-righteousness satiated. The driver will get the standard $242 fine.

Justice!

Dan
Guest
Dan

she “made a last-minute decision to turn” (?) Don’t you have to signal for like at least 70 feet or something first?

rrandom rider
Guest
rrandom rider

I’m not a lawyer and I did not stay at a Holiday Inn Express last night, but it seems to me that the law is clear and that the judge simply mis-interpreted it. I don’t know if any legislative action is needed and, by putting such specific wording in one area of the code could lessen implied protections in others.

IMO, this is best resolved with a higher court overturning this ruling and explaining that vehicle lanes, including bike lines, do persist through an intersection. My biggest concern over this is that, as is mentioned in the article, it could affect how police react to such accidents in the field. If they hear about this ruling and nothing more, they are less likely to issue a citation in such cases. Lack of a citation makes insurance claims and civil actions more difficult, which could make it harder to receive just compensation if necessary.

The more I think about this the more it ticks me off that one individual (the judge) can do such a lousy job in this one instance and wind up having a negative effect on lots of other folks.

kgb
Guest
kgb

Judge Pro Tem Michael Zusman is an effing idiot.

Shoemaker
Guest
Shoemaker

I think the problem here was the wrong citation. Can someone tell me if the judge has the discretion to correct this?

As Ray Thomas mentioned in the story, the driver was guilty of an illegal right turn. See:
http://animatedtrafficlaw.org/ror/index.php/Oregon:Q3

811.335 Unlawful or unsignaled turn; penalty.
(1) A person commits the offense of making an unlawful or unsignaled turn if the person is operating a vehicle upon a highway and the person turns the vehicle right or left when:
(a) The movement cannot be made with reasonable safety;

In addition, the driver should be cited for careless driving.
811.135 Careless driving.
(1) A person commits the offense of careless driving if the person drives any vehicle upon a highway or other premises described in this section in a manner that endangers or would be likely to endanger any person or property.

If the citation was failure to yield to a bike in the bike lane, and there was no bike lane, I’m not sure the judge can say, “That doesn’t apply, but these certainly do so *I’m citing you for…*

Can someone weigh in on that?

OUTRAGEDDDDDDDDD
Guest
OUTRAGEDDDDDDDDD

Let’s organize a protest and demonstrate. Who’s with me? What channel are we gonna call to cover us since we’re all OUTRAGEDDDDDDDDDDDDDDDDDDDDDDDDDDD!!!!

kevin
Guest
kevin

Why don’t they just call it “legal hit and run” any motorist will be looking to see if there are painted lines or lack there of. I think the city needs to make the dashed lane intersection for the sake of all cyclists out there, if this kind of judgment is going to exist.

Red Dawn
Guest
Red Dawn

I realize there are a lot of different groups of bikers in Portland, and not one big “cycling community”, but you vehicular cycling advocates are coming off as mean and condescending. “mindless Nu-Freds”? thats just childish. I would love to believe that cars would be cool just to follow a couple of lazy spinners going up Hawthorne in each lane traveling at 12mph, but something tells me nothing short of chaos would ensue. Do you really cruise up Hawthorne as part of traffic, pinning it at 24.5 MPH? If so, I am humbled and impessed.

spare_wheel
Guest
spare_wheel

“Judge Pro Tem Michael Zusman is an effing idiot.”

Gotta agree.

This is the same judge who failed to disclose that he is part owner of restaurant (Kenny and Zukes) in his *payed* food reviews for the Oregonian. This is a direct violocation of policy at the Oregonian.

In my interactions with him he has come across as a libertarian-leaning nutjob. He has mocked vegetarians/sustainability so it would not surprise me to learn that he is anti-bike.