Support BikePortland - Journalism that Matters

Bend judge rules bike lane does not continue through intersection

Posted by on October 17th, 2018 at 11:15 am

Bend Bulletin story published yesterday.

A bicycle rider was killed last year in the central Oregon city of Bend when he was involved in a collision with a FedEx truck operator. The collision was a right-hook that took place in an intersection.

The reason I’m sharing this story here and now is because of a Deschutes County Circuit Court ruling that was made in the case yesterday. Here’s the story from the Bend Bulletin (emphasis mine):

A Deschutes County Circuit Court judge on Tuesday ruled a cyclist hit and killed in an intersection by a FedEx truck did not have the protection of a bike lane.

FedEx driver Trenton Derek Sage was found not guilty of the violation of failing to yield to a rider in a bicycle lane. Last November, Sage hit and killed Bend man Jonathan Chase Adams, 31… The case had implications beyond the lives of Sage and Adams. Prosecutor Andrew Steiner said many people today do not treat bike lanes like vehicle lanes, though they are.

“This is cultural,” he said. “Many people just don’t think of them as lanes.”

Steiner attempted to make the case that bike lanes continue through intersections, citing Oregon Department of Transportation guidelines for road construction and recent court cases and legislation in Oregon.

But Tuesday afternoon, Adler announced he did not agree. He said he saw “no authority” to support the contention that bike lanes continue through intersections in Oregon.

If this sounds familiar it’s because we had a similar case in Portland in 2009. In that instance, Multnomah County Court Judge Mark Zusman ruled that a woman who admitted to making a sudden right turn in her car that resulted in a collision with a bicycle rider in an intersection could not be found guilty for “failure to yield… in a bike lane” because — in Judge Zusman’s opinion — there is technically no “bike lane” in the intersection since there are no painted lines.

We spoke to legal and law enforcement experts about that case and they all agreed that Zusman’s decision was unfortunate and/or just plain wrong. At the time I said repeatedly that the law needs to be clarified so as to avoid decisions like this from happening ever again. Well, here we are.

Advertisement

‘Bicycle lane’ means that part of the highway, adjacent to the roadway, designated by official signs or markings…
– ORS 801.155

Let’s be clear: Even though the legal definition of a bicycle lane (ORS 801.155) doesn’t specifically address intersections, the legal protection of a bicycle lane absolutely does continue through an intersection even if the markings do not. Standard vehicle lanes also don’t continue through intersections — does that mean intersections are a legal free-for-all? No. There are no lines in intersections simply because it would be confusing and impossible to follow them when they criss-cross each other.

But don’t take my word for it.

Former Portland Police Bureau Captain Bryan Parman told us in 2010 that, “We all know that lanes continue through an intersection, we just don’t lay down a bunch of criss-crossing lines because it would be confusing.” He also said, “It’s a poor ruling in an individual case but it doesn’t change the way we do business.”

Keep in mind that the Bend case is much different in one major respect: The bicycle rider was riding relatively fast and one witness said he was “bombing” downhill prior to the collision. In the Portland case, the auto user admitted fault and made a sudden right turn without looking. It’s unclear if the Deschutes County Judge took the bicycle rider’s behavior into account in his interpretation of the bike lane law.

The Portland case ultimately settled out of court with the auto user’s insurance company taking full responsibility.

It’s very frustrating to another Oregon judge make this determination about bike lanes. We had a feeling this could happen if the law was not clarified. In 2010, a former employee of The Street Trust said their legislative committee discussed the possibility of changing the law. “The question hinges on whether this is a one-time fluke,” the employee said, “or if this is something that will spread like a virus.” Given what just happened in Bend, it’s time for the law to be cleaned up.

The law should be changed to explicitly state that bicycle lanes continue through intersections — whether the lane markings do or not.

UPDATE, 12:06 pm: We’ve obtained some of the documents used in the Deschutes County Court trial. In a memo to the court, the driver’s Portland-based attorney, David McDonald, cites the 2009 Zusman decision as evidence that the bike lanes didn’t legally continue through the intersection. McDonald also states, “a bicycle lane is a traffic control device, and traffic controlled devices have to be clearly marked. The fact that the bicycle lane’s markings are not continuous through the intersection, and the point of impact was not with a designated bicycle lane, Mr. Sage [the truck operator] cannot be adjudge liable for a violation of ORS 811.050.”

UPDATE: Here’s a May 2018 memo written by Deputy DA Andrew Steiner that explains why he believes bike lanes continue through intersections:
Memo Re Adams 5-1-18

— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org

Never miss a story. Sign-up for the daily BP Headlines email.

BikePortland needs your support.

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

145
Leave a Reply

avatar
39 Comment threads
106 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
46 Comment authors
BlackcatprowlTravis RynoPeaDubqJohnny Bye Carter Recent comment authors
  Subscribe  
newest oldest most voted
Notify of
9watts
Subscriber

What I don’t understand is the asymmetric implication of this. Why is it the person on a bike (the more vulnerable users) who apparently lose(s) her rights in the intersection?
Since as you said it would be silly for all intersections to be legal free for alls, what gives?

Steve Scarich
Guest
Steve Scarich

Just to give a little local context from Bend. In his argument for the defense, the attorney emphasized that the cyclist did not take ‘due care’. This intersection is a bit tricky: first of all, the bike rider was very unlikely ‘bombing’ because it is a flat road, with just a slight drop as you approach the intersection. He was going straight. The truck was turning right into a relatively narrow, and more than 90 degree turn, so was likely going less than 5 mph. So, there could have been as much as a 15-20 mph speed difference.

Chris I
Guest
Chris I

I guess I’ll just have to start merging into the vehicle lane every time I go through an intersection now. Just to be safe.

Al
Guest
Al

I agree that the ruling is not consistent with reality. However, treating the bike lane like another vehicle lane, to make a right hand turn a driver would need to “change lanes” to occupy the bicycle lane prior to the intersection in order to turn. Otherwise, it would be like making a right hand turn from a left hand lane in a two lanes going straight situation. Note that lane changes are not permitted within intersections. Is this what we want drivers to do?

Personally, and I just had this happen Tuesday, if a vehicle is making a right turn in front of me and I’m still behind the end of the vehicle then I immediately take the lane behind them and pass them on the left rather than risk getting right hooked. This sometimes confuses the driver as they wait for me to proceed ahead on the right but I’d rather not be in the turning danger zone. Drivers who never even acknowledge my presence don’t know the difference and it’s way better than slamming on the brakes and then having a “No, you go first” contest with the driver.

There have been several instances where the driver turning wasn’t far enough ahead for me to do this and I had to follow their turn right in order to avoid a collision.

Finally, in heavy traffic, passing a right turning vehicle on the left may not be possible due to the vehicle behind being too close so it’s very much up to situational awareness at that point.

Gary B
Guest
Gary B

Was that the only offense the driver was charged with? That failure to yield charge is a Class B traffic violation.

Honestly, it seems like barking up the wrong tree. A right hook seems to be surefire “vehicular assault” (ORS 811.060), a Class A misdemeanor. The elements of that crime are recklessness, contact (ped/bicycle/motorcycle), and injury. Reckless means “a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur.” In a right hook the driver passed the bicycle rider and then turned in front, and thus is necessarily aware of and disregards a substantial risk by making the turn–ipso facto reckless.

I’m aware of the difficulty in such prosecutions due to a tilted “standard of care” for drivers. But that’s my point–rather than fixing the failure to yield law, how about we (prosecutors, the legislature) focus on fixing the real legal shortcoming. Save failure to yield for non-injuries.

Chris
Guest
Chris

Among many awful things about this is the Bend Bulletin including the following details about the person riding, and failing to mention that none are legal requirements for an adult riding in broad daylight: “He was not wearing a helmet or reflective clothing or a light.”

Tom
Guest
Tom

What if they dashed the bike lane through the intersection. Would it still not count, or would it need to be a solid line? Don’t the Dutch use dashed bike lines through intersections?

9watts
Subscriber

All of you who champion protected bike lanes here, I’m curious for you to explain to us how intersections, and specifically this legal matter, would be handled in that situation?

younggods
Guest
younggods

Why not enormous signs at every intersection that say “motorists yield to bicyclists” or something of the sort?

JeffS
Guest
JeffS

We already had laws that could have dealt with this. Instead, someone decided to create a new one and lowered the standard of protection.

Bike advocates sell riders out every time they advocate for a bike lane. Increasing overall ridership at the expense of us all. If they cared about cyclists, they never would have put them to the right of potentially right-turning cars going into an intersection.

Ben Hubbird
Guest
Ben Hubbird

That stretch of 12th / Sandy is a fucking nightmare of trucks parked in the bike lane, aggressive driving, freight companies blocking multiple traffic lanes (and associated frustrated auto users). Really bummed that the repaving & restriping of Sandy west of 12th seems to have very little, if any, separation in most places for the bike lane, and forces bikes to swerve around traffic and parking rather than making the auto lane veer & slow traffic accordingly.

Tom
Guest
Tom

If bike lanes don’t exist in an intersection, then going through the intersection at the same time as a car would be lane sharing, which is illegal. So in many cases using a bike lane through an intersection would be illegal, not just unprotected. The only legal way would be for the 2nd vehicle to merge behind the first.

TAJ
Subscriber
TAJ

“Given what just happened in Bend, it’s time for the law to be cleaned up.”

I couldn’t agree more. What do we do?

oregonbicyclelawyer
Guest

This just isn’t correct under the law. Bike lanes aren’t striped through intersections because the state of Oregon says not to. See the 2011 Bicycle & Pedestrian Design Guide page 6-1: https://www.oregon.gov/ODOT/Engineering/Documents_RoadwayEng/HDM_L-Bike-Ped-Guide.pdf

q
Guest
q

If you read the laws and definitions strictly, I wouldn’t be surprised if nobody is in a lane. Their tires are, but the driver, pedestrians, vehicles, etc. might technically be above the lane. But if so, that doesn’t mean judges should make rulings based on that.

GlowBoy
Guest
GlowBoy

So when is this activist judge up for reelection?

TAJ
Subscriber
TAJ

“His speed carried him outside the protection of the bike lane,” Adler (the judge) said.

Bullshit. The fact that he had to get across the street carried him into the intersection.

Andrew Kreps
Guest
Andrew Kreps

So, here’s the question I have- who do we sue to make the law better before more people die this way?

The list of right hook deaths is deafening. I fear there will be one at the east end of the burnside bridge before the construction is complete.

soren
Guest
soren

Our legal system and laws are hopelessly biased against vulnerable road users. And when the courts illustrate this sad reality, the response of bike advocates/enthusiasts is to quixotically insist that the law is still on their side.

Mark smith
Guest
Mark smith

It’s open season on cyclists now. Right hooks are perfectly fine.

stephan
Guest
stephan

Do you send these clips to the police? Just curious.

stephan
Guest
stephan

One thing we do not discuss here is that these intersections with bike Lanes would need to be configured completely different. Even if there was a law saying that the bike lane goes through the intersection, right hooks are bound to happen with the current design. I think one solution that exists in Copenhagen or Amsterdam is to guide the bike lane not directly through the intersection, but curved outward. This way, the person driving is more likely to see the person biking when making a right turn. Of course, we will never implement such an expensive infrastructure design here consistently, so that makes bike lanes dangerous at the most dangerous spot, crossings.

matchupancakes
Guest
matchupancakes

This will have to be appealed up to the state for review. Additionally, Portland *is* treating bike lanes at higher risk intersections with dashed green thermoplastic due to this issue of articulating where the bike lane “continues” through intersections. Change is coming but not soon enough!

Charley
Guest
Charley

This has got to stop. This judge is either not competent, or clearly biased. We can’t have this kind of nonsense endangering our lives.

HJ
Guest
HJ

The big problem here as I see it is that we keep giving drivers that right hook people a free pass. Bike lane continuity issue aside whatever happened to the whole “it’s the turning party’s responsibility to make sure it’s safe before proceeding” thing? This has become a cultural epidemic with drivers, particularly of late. Twice now (in about rhe last 2 months) I’ve had hair-thin near misses with cars turning left in front of me at Cedar Mill Elementary, as I’m coming down the hill at roughly the 40mph speed limit. Scary to say the least.
Frankly I think we need to take a hard look at driver education. Licensing requirements need to be much stricter. Including testing every few years. Because clearly drivers don’t seem to understand the rules of the road any more.

Chris I
Guest
Chris I

Kudos to you for calling out that A-hole. You’re fighting the good fight.

Glenn
Guest
Glenn

My citizenship persists in and through the intersection.

J_R
Guest
J_R

I think the judge has opened the door to the intersection free-for-all.

We know that vehicle operators are supposed to use a left turn lane when making a left turn, correct? It’s specified in ORS 811.345 as follows:

2017 ORS 811.345¹ Failure to use special left turn lane
• penalty

(1) A person commits the offense of failure to use a special left turn lane if the person is operating a vehicle where a special lane for making left turns by drivers proceeding in opposite directions has been indicated by traffic control devices and the person turns the vehicle left from any other lane.

(2) The offense described in this section, failure to use special left turn lane, is a Class B traffic violation. [1983 c.338 §625; 1995 c.383 §61]

Since, according to the judge, there are no bike lanes in an intersection, there must not be any lanes in an intersection. Thus, a vehicle operator can’t be guilty of failing to make a left turn from anywhere once you are in the intersection.

This judge’s ruling is truly bizarre.

Johnny Bye Carter
Subscriber
Johnny Bye Carter

Mistrial. Attorney not looking out for the best interests of their client.

Andrew Steiner, you’re fired.

You argued that “The cyclist did not appear to be exceeding the speed limit.”

But then you stated that “In this case, the cyclist arguably did not exercise due care when he approached the tractor-trailer quickly from behind as the tractor-trailer approached the intersection.”

This is illogical. You’re blaming your own client for not exercising due care by proceeding legally at the legal speed in a legal lane.

You should not be representing cyclists.

Johnny Bye Carter
Subscriber
Johnny Bye Carter

The Bend, OR Bicycle and Pedestrian System Plan (TSP) shows that the bicycle lanes all continue through that intersection. There is no gap on their map.

https://www.bendoregon.gov/services/mapping-services/map-library

ann
Guest
ann

Chris I
I guess I’ll just have to start merging into the vehicle lane every time I go through an intersection now. Just to be safe.Recommended 30

I was thinking the same thing, but then we may be found to be in violation of ORS 814.420 by failing to use the bike lane without an explicit exception to do so. In which case, do we have any legal protections if we are involved in a collision when it’s determined that we are in violation of that statute? I think it appears to me that legally we are damned if we do, damned if we don’t. That does ignore the obvious fact that right hooks are significantly less likely to occur when cyclists do control the travel lane.

serious question
Guest
serious question

so, last night going NB on Naito, a fedex truck had decided to occupy the squinchy little bikelane provided to us alongside the McCormick Pier Condos by the city, so i felt obligated to move out into the lane to continue on my transit home.
a vehicle that had been driving a far distance behind me proceeded to wail on their horn in protest.

so, am i expected to stop prior to the blockage created by the truck, look behind me and wait for when the road is clear of any and all other traffic before i can proceed?
am i not allowed, in this instance, to “take the lane” for the sake of saving those motorists a precious few seconds of their rush to stop at the red light awaiting them at next intersection?

please, i really would prefer to follow proper traffic laws!
thanks so much for any help!

El Biciclero
Guest
El Biciclero

I’m curious to know what The Judge would think if I were hit in the WB bike lane on Cornell between Barnes and Murray which becomes completely de-striped annually due to drivers driving on the line. It literally disappears to the point that there are not even paint chips left and stays that way for a few months until it can get re-striped. Does the bike lane cease to exist then?

Mark smith
Guest
Mark smith

Yes, that’s exactly the case. You aren’t the only one who reads articles. People with bad intentions and then they go to the bar in their f350’s and tell their friends ” hey Bob, you hear that truck driver got over for killing a bicylist?!, Turns out, biken lanes don’t exist in intersections”.

(Basic Bros slap eachothers back)

It’s exactly that ugly and that straight line.

Hello, Kitty
You say that as if all those people looking for their chance to right hook a cyclists have finally got their shot.Nothing has changed. The sky is still up.Recommended 1

q
Guest
q

This whole thing has me wondering–aren’t the “markings” that designate a bike lane bicycle symbols on the pavement, and not just the white stripes? If so, will someone right-hooking a bike between intersections be able to claim the bike lane didn’t exist because there were no “signs or markings” anywhere in sight?

Many bike lanes don’t have signs or pavement symbols closer than several hundred feet apart, so there are countless places where a vehicle could, say, turn right onto a street with a bike lane, driver several hundred feet, then turn right into a driveway, without ever seeing a sign or pavement symbol.

Where this issue has come up before is in articles about people parking in bike lanes, especially new ones. While the stripes alone should make it clear, people parking either are clueless, or else they park with the idea that if ticketed, they can claim there were no signs saying it was a bike lane, and/or that the lack of those meant it legally is not a bike lane. Certainly someone will eventually use that argument if facing charges for running someone over. It’s a less extreme argument than”bike lanes don’t exist in intersections”.

Blackcatprowl
Guest
Blackcatprowl

This is why the new “green lanes” should be treated as a yield situation / proper lane. It, also, points out that cyclists need to be both assertive and cautious in their riding.

Assertiveness in taking the lane to show that they intend to keep going through the intersection, as well as cautious in realizing that in a car(truck)/bike, the car will win, that sometimes a cyclist has to abandon the cyclist’s intention, abort and protect oneself.

It brings up the faulty infrastructure offered. In such a situation, an out should be given to cyclists, where, usually, the infrastructure forces one to not be able to get off the road, endangering the cyclist just as much.

It is time for a serious revision in road design and regulations to better accommodate cyclists on the road and in the offering of alternates to the road. Present efforts have, generally, only increased the dangers to cyclists, while limiting access.