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Get Legal: Being “nice” is dangerous and could make you at fault in a collision

Posted by on September 17th, 2014 at 2:54 pm

Rosa Parks Way -3

Being nice isn’t so nice when it creates confusion.
(Photo by J. Maus/BikePortland)

Written by lawyer Ray Thomas of Swanson, Thomas Coon & Newton.

Some road users go out of their way (and beyond the law) to be “nice.” Being nice isn’t always a bad thing. Sometimes it involves giving somebody a break, or allowing a successful traffic merge; but other times — such as when a driver waves another driver through stopped traffic — there can be disastrous consequences.

When road users go out of their way to accommodate others when there is no legal authority for doing so, it creates real trouble later if someone gets hurt as a result of their “nice” gesture. In this column, I’ll go over some common scenarios where being what you think is good can actually be very bad.

Waving others through an intersection

In heavy traffic situations, most people attempt to honor the Oregon law prohibiting blocking, or “impeding traffic” (ORS 811.130) or “plugging” intersections so that cross traffic can get through (ORS 811.550 prohibits stopping “within an intersection.”) However, some drivers, in an attempt to be helpful, wave other drivers through without considering that someone on a bicycle in an adjacent lane may be lawfully occupying the area in the direct path of the left turning driver.

When a collision happens, many times the “helpful” driver is gone from the scene, leaving an injured person and a baffled driver behind wondering who initiated the collision.

When a collision happens, many times the “helpful” driver is gone from the scene, leaving an injured person and a baffled driver behind wondering who initiated the collision. Sometimes, when the “waver” stays behind it is possible to make a claim against their insurance company for failing to carefully assess other traffic before making the wave. In essence the waver is assuming responsibility for conditions being safe to make the left turn.

Before one attempts to wave someone through they should always do a shoulder check for walkers, bikers and other overtaking traffic to make sure that they’re not about to create a wreck for others road users.

Bike riders waving drivers across bicycle lanes

Sometimes a bicycle rider who’s nervous about a left or right turning car next to a bicycle lane will wave them through in an attempt to avoid a potential conflict. This maneuver endangers other overtaking bike riders or people walking in crosswalks who aren’t anticipating that the driver will suddenly start moving when they should have slowed or stopped in order to yield to the person in the bicycle lane (as Oregon law requires). This maneuver is particularly dangerous for bike riders who aren’t anticipating that a rider ahead of them has waved the driver through the bike lane.

Next time you consider doing this, think to yourself: Are you sure you want to avoid a potential conflict so much that you are willing to assume responsibility for other road users the driver might hit on their way across the road in front of you?

Passing other riders

Some riders attempt to facilitate overtaking cars’ efforts to pass a group or single rider, for example on a long climb where the riders are going substantially below normal motor vehicle speed. In these instances the lead rider will wave an overtaking car forward when it appears that the lane ahead is clear of oncoming traffic. However the helpful waver has invited what may be an unsafe passing maneuver. In these instances we recommend riding single or double file as far to the right as practical (as required by ORS 814.430). It’s best for riders to allow overtaking auto drivers to decide for themselves when it’s safe to pass — without inviting a passing maneuver which may cause a head-on or side-swipe collision.

People using crosswalks

One of the reasons Oregon Walks and other organizations changed Oregon law for walking in crosswalks was to create q legal trigger of the walkers’ right of way so that drivers know when to stop before they enter the kill zone. The Oregon crosswalk law (ORS 811.028(5)) states that drivers must stop for people walking in marked or unmarked crosswalks “when any part or extension of the pedestrian, including but not limited to any part of the pedestrian’s body, wheelchair, cane, crutch or bicycle, moves on to the roadway in a crosswalk with the intent to proceed.”

Riding on Alberta-1

Who knows what lurks ahead?

Under the current Oregon system, people who are hanging back on the curb but have not stepped or rolled off of the curb into the crosswalk (unless they are proceeding with a walk signal at a signalized intersection) have not yet exercised their right of way to the crosswalk. Many Oregon drivers (and bikers) are ignorant of crosswalk laws and fail to realize that it is not until the person has actually moved off of the curb and put a foot or bicycle wheel onto the crosswalk in the roadway that an obligation to stop is legally triggered.

The gratuitous granting of a right-of-way that does not yet exist only serves to lure people off of the curb and into a “double-threat” hazard situation because people driving in other lanes might have no idea what’s going on.

Further, ORS 814.040 states pedestrians must yield the right of way to vehicles outside of crosswalk (ORS 814.040 requires pedestrians to “yield the right of way to a vehicle upon the roadway when… crossing… at any point other than within… a crosswalk”). So if the “nice” driver waves someone across the street mid-block and another vehicle comes along and strikes the walker, the driver’s wave, in effect, lured the person into a position where they have no legal right to be.

Why does this keep happening?

Most problems involving right-of-way hazards like those discussed above occur because drivers fail to understand the basic rules of the road. The best solution for this problem is for everyone to familiarize themselves with the bicycle lane, crosswalk, and passing laws so that they know where they stand legally in these frequent encounters with other road users (start by checking out our free legal guides).

Every time we wave someone through or across a lane when the law grants no right-of-way to the recipient of the “favor” the possibility of a collision greatly increases. While it is somewhat ironic that being nice can be dangerous and illegal, the best practice is to save those favors for when someone is trying to merge into the lane in front of you.

Ray Thomas
(Photo © J. Maus/BikePortland)

This article is part of our monthly legal series with Portland-based lawyer and bike law expert Ray Thomas of Swanson, Thomas, Coon & Newton. (Disclaimer: STC&N is a BikePortland advertiser and this article is part of a paid promotional partnership.)

NOTE: We love your comments and work hard to ensure they are welcoming of all perspectives. Disagreements are encouraged, but only if done with tact and respect. BikePortland is an inclusive company with no tolerance for discrimination or harassment including expressions of racism, sexism, homophobia, or xenophobia. 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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John Lascurettes
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Amen!

jonno
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jonno

Hear hear! I get fed up with “nice” drivers who seem more to be covering up their lack of situational awareness than actually aiding the flow of traffic through courtesy.

Case in point:

In the past year or two I’ve noticed many more drivers stopping for me when I’m on my bike trying to cross a busy street, usually where there’s a yellow “bike crossing” sign on said busy street. Example: SE Ankeny crossing 39th/Chavez at Laurelhurst Park. It’s my understanding that drivers have no legal requirement to do so. I’ve tried waving them on but this seems to occasionally incite further aggression, paradoxically. Then I have to wait until all lanes are stopped before proceeding which slows everyone down and usually doesn’t save me any time anyway. But this seems to be the new normal in Portland when it wasn’t, say, 5 years ago (in my experience).

And an only-in-Portland crossing anecdote – my girlfriend and I just got a tandem and were out on our inaugural test ride. A driver stopped for us just like I described above and we set off all wobbly in our inexperience, so neither of us waved to the driver. He stuck his head out the window and yelled “You’re welcome!!!” in an Olympic-level show of passive aggression.

Fred
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Fred

Keep Portland passive aggressive.

Phil
Guest
Phil

That crosswalk law is messed up because no one knows they have to step into the street to get right of way. If I never yielded to people who were waiting at a crosswalk without having any part in the street, I’d never yield to anyone in a crosswalk.

Outer SE PDX Rider
Guest
Outer SE PDX Rider

Hey question for Thomas… What about the “thall shall not block intersections” urban legend? Many drivers on SE Burnside for example, while waiting at the light at 82nd leave the side street intersections clear because they think its the law – but it’s a total set up for me like you describe! I’m invisible to the car turning in front of the driver who just created what I call “The Good Samaritan Death Trap.”

Jeff
Guest

So why is it, when you’re waiting for a long line of drivers to pass and there’s a HUGE opening behind the last driver in line, that said last driver almost always stops and tries to wave you through?

browse
Guest
browse

In my opinion, the proper solution is to fix the legal system. If User A of the roads makes a hand gesture indicating that User B can proceed even when User A has the right of way, it is just lunacy to expect that User A has now taken all responsibility for the safety of User B proceeding. I can’t believe anyone thinks a hand wave is any more than a statement of “Go ahead, I’m not in a hurry; I don’t mind pausing so you can proceed.”

In a rational system, every user of the roads is responsible for accessing the safety of their actions on the road, and trying to legally extort another person because they gave a generous and friendly wave would be laughed right out of court.

I’m not enthusiastic about a solution that says, “Quit being nice and defer to a screwed up legal system.”

Frank
Guest
Frank

The smiling motorist waving me into the cross-hairs of speeding metal death is the one that happens to me the most.

Recently I was riding east on NE Tillamook and at 20th a friendly driver tried to wave me through. I sat still, and her smile turned to anger and she shook her head, looking at me like an idiot. I tried to explain that she was literally going to kill me with kindness but was cut off as the dump truck barreled past in the near lane.

Lately I’ve taken to putting my hands in my pockets while I wait and look as oblivious as possible so they stop being nice!

Champs
Guest
Champs

The Simpsons once ran this gag on the sign outside a dentist’s office: “NO MATTER HOW YOU BRUSH, YOU’RE DOING IT WRONG”. Somehow it feels relevant here.

For all these don’ts, how about some dos?

Don’t wave people through intersections, but please DO call out RoW when it is clear. If it is “nice” to wait, getting out of the way is even nicer. Tarantino films are great, but I don’t need Mexican standoffs in my everyday life.

Don’t wave drivers across bicycle lanes, DO ride defensively. Stay out of the hook zone: introduce yourself to a car by getting alongside it well before you arrive at an intersection. Stay out of the pinch zone: when a bus is pulling over, attempt no entries and evacuate the space between the bus and its stop if you are there. Afternoons on SW Madison are a clinic for doing these things badly.

BikeEverywhere
Guest
BikeEverywhere

I’ve developed a new technic for dealing with overly kind drivers who try to unknowingly put me in very dangerous situations. It’s called “do not establish eye contact”. While waiting for a safe opportunity to cross a street or enter the traffic flow I look down at my feet, examine my pannier, stare at birds flying overhead, etc. If they can’t see my eyes, they almost always decide to move on. No conflict. No hurt feelings. No life-threatening situations for me.

BikeEverywhere
Guest
BikeEverywhere

Technique not technic, sorry…

Pat Franz
Guest
Pat Franz

It has always seemed to me that as a driver, my responsibility was to not hit anyone in front of me and not unduly impede those behind me. As in there is a responsibility to be aware of traffic behind you and be mindful of keeping things moving. So many drivers seem to have only a little bit of awareness of what’s in front of them and no awareness of what’s behind them. If someone waves you through, their situational awareness bubble likely only extends directly in front of their vehicle for about 3 feet. It’s like “Oooooh, puppy!”. Everything else kinda disappears for them.

My favorite are the drivers that stop for no apparent reason, delaying your being able to move because you don’t know what they are doing. Sometimes it turns out they are waving, not realizing there is no way for anyone to see them inside their car (glare, rain, nighttime, etc.). If it’s impossible to see them, I usually throw up my hands in an attempt to say “I have no idea what is going on!”. Not infrequently this leads to a honk. Yes, I see your car. I still don’t know what you are doing though…

When I taught my children to ride, I made double sure they didn’t accept a wave as “It’s OK to go!”. Unfortunately, drivers are more likely to try and “be nice” and wave children through. Don’t take candy from strangers and don’t accept traffic advice at face value.

was carless
Guest
was carless

Frank
The smiling motorist waving me into the cross-hairs of speeding metal death is the one that happens to me the most.
Recently I was riding east on NE Tillamook and at 20th a friendly driver tried to wave me through. I sat still, and her smile turned to anger and she shook her head, looking at me like an idiot. I tried to explain that she was literally going to kill me with kindness but was cut off as the dump truck barreled past in the near lane.
Lately I’ve taken to putting my hands in my pockets while I wait and look as oblivious as possible so they stop being nice!
Recommended 3

Yeah, I totally avoid all eye contact when riding or driving. Its so much clearer that way.

Devin Quince
Guest
Devin Quince

We had someone here in CO, who was riding like most cities and drivers want us to, meaning to the right of traffic and at a red light a driver turning right decided to try and pass her at that light. Before he had a chance to, the light turned green, so she started riding straight and was hit by the car and pushed into the crosswalk. In our town, bikes cannot ride across the crosswalk and the cops ticketed her for being in the crosswalks even though she said was not and just ended up there by being pushed. Now she has to fight the city on the ticket and the cars insurance company on being liable for damages.

Another reason to take the lane and especially at lights where someone could try and pass you to the take a turn.

TonyT
Guest
TonyT

I had a situation described here happen on Clinton. I was riding at a fairly good clip when the cyclist just in front of me suddenly slowed down and waved a car across at one of the roundabouts. Fortunately the driver saw that I was still coming along and didn’t pull out in front of me. The cyclist was one of those timid and unpredictable riders who weave in and out of the parked cars. Not a good situation.

Rob
Guest
Rob

Great article Ray! From the comments above it’s obvious that it’s not just drivers who need continual education on the rules of the road- we all do. I’ve definitely noticed more drivers waving me through when I don’t have the right of way. Personally, I consider the root cause of this to be the many cyclists who don’t yield the right of way, so drivers have no idea what to expect of a cyclist (at a four way stop, for example). I agree with one of the other commentors: everyone just follow the rules and we’re all happy! (Of course, if no other vehicle or pedestrian is around, do whatever is safe for you.)

Joseph E
Guest

I think a big problem is the large number of 4-way stop signs in this city. They do calm traffic and make it easier for people walking to cross, but they lead to lots of confusion about who has the right of way. The worst are streets like NE Tillamook at 42nd, where there is a constant stream of traffic in all 4 directions and many left turns, plus bike lanes on 3 of the 4 directions! It’s a mess. These intersections either need to be changed to have stop signs on only one cross-street, or a light.
The lower traffic streets would probably be better with no stop signs at all, but with lower speed limits. If everyone is riding and driving at 15 mph, it is easy to yield to the vehicle on the right.
At a 4-way stop, you have to decide if you yield to the person who got there first, or to the person on the right. And with more than 1 lane in each direction (e.g. 1 car lane + 1 bike lane) it is super confusing.
I’m sure the city traffic engineers hate these intersections.

Eyestrain
Guest
Eyestrain

While waiting at the stop sign on SE Ankeny a driver called me a f-ing b*tch (you can fill in the appropriate letters) for trying to tell her to keep going when she didn’t have a stop sign and I did. She was going southbound and traffic was flying by in the northbound lanes on the other side of the diverter. This is my biggest pet peeve about biking and driving – if a driver stops at an intersection where they have the right of way it just confuses everyone! I thought this person was confused that they couldn’t turn left onto ankey and froze – instead I guess they were waiting for me to make a suicidal run into oncoming traffic!

CaptainKarma
Guest
CaptainKarma

Photo looks like Abby Road.

dr2chase
Guest
dr2chase

One problem with “confusion” might be that different states have different details in their crosswalk law. I have no idea which one is more common, but the Massachusetts laws just saw “pedestrians win in crosswalks” ( https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter89/Section11 ). There’s no requirements on the pedestrian that I can see, certainly none that mention crosswalk (there’s only three mentions of “crosswalk” in all of the Mass. General Laws).

The practical consequence is that you just look for pedestrians at the edge of the crosswalk, instead of in the crosswalk. This being Boston (area), enforcement is spotty, but sometimes they do run crosswalk stings.

I’m not sure if drivers run crosswalks more or less often in either state.

Spiffy
Guest
Spiffy

In essence the waver is assuming responsibility for conditions being safe to make the left turn.

this is completely untrue… the waver is saying that it’s ok to proceed through their lane because they’re not going to continue forward… the waver is never saying “everything is ok no matter what it is you’re attempting to do”…

jd
Guest
jd

I’m surprised to the point of skepticism that a waver would ever be at fault. It should be every driver’s responsibility to look where they’re going.

But I will stop letting bikes cross at those bike+ped signs, and I will stop waving people through, since friendliness is a crime.