the hot topic this week on bikeportland.org is this story about a traffic court judge dismissing a ticket for failure to yield to a bike in a bike lane.
classic right hook at the intersection of SE Hawthorne and 10th. motorist makes an abrupt right turn, taking out the cyclist who is right beside her, in the striped bike lane . . . except there is no striped lane through the intersection itself, so the judge pretty much had to dismiss the ticket. coulda maybe hit her with failure to signal her turn or failure to keep a proper lookout, but these were not charged.
some disagreement in the testimony whether the motorist threw a signal. certainly not a hundred feet before the intersection, as she admits she made the decision to turn at the last moment, and she also admits she didn't make a head check, so it should not be impossible for the cyclist to make a negligence claim, though a jury might find some contributory negligence in riding right alongside a moving car that just might -- you never know -- turn right or whatever (and would the cyclist have seen a signal anyway?)
a number of people posting comments are angry with the judge, but his decision is technically correct, and it has no bearing at all on whether the cyclist can recover damages from the motorist in a civil action.
what did he decide? the statute under which the motorist was charged -- and we are talking here about a class B traffic violation, maximum fine three sixty -- is ORS 811.050, failure to yield to a cyclist in a bike lane. the judge ruled that since the lane is not striped through the intersection, the cyclist was not in a bike lane when she was struck. literally correct.
the facts here would have supported failing to signal a turn (maybe) and failing to keep a proper lookout (which the motorist admitted), and these should have been charged. then you would have seen the same memo from the judge explaining why the third charge, failing to yield to a cyclist in a bike lane, would not stick, but you would have had a conviction on one or both of the other charges. the failure here is on the part of the prosecutor.
but what about the citizen initiated complaint statute, ORS 153.058. couldn't the cyclist have pressed these other charges independently? nope. if the prosecutor charges one thing and you think some other or additional offense should be charged, 153.058 will not help you. the court will dismiss your complaint under subsection (6) if the prosecutor has charged something arising from the same conduct. so in effect, the prosecutor ran out the clock on this one. thanks large.
the real issue is this:
1. the city has striped these lanes in a way that tells bicyclists to ride inside the right hook.
2. the stripes give bicyclists and motorists wrong information about where bicyclists should be.
3. this misinformation is given the force of law by the far to right and mandatory sidepath statutes.
when approaching an intersection, a bicyclist should never be inside the right hook, regardless whether the motorist has indicated a turn. if the cyclist asserts the travel lane, this is not an issue.
a bike lane should not be striped solid up to the intersection, and a motorist turning right should be permitted to merge across, rather than waiting to make a hook at the intersection itself.
the facilities people talk about how engineering and design can shape behavior, and this is certainly true, but this particular facility, which is common throughout the city, shapes exactly the behavior we see here: the bicyclist inside the right hook and the motorist turning across. yes, the motorist should have signaled (though if you are riding alongside, you will not see the signal), and yes she should have done a head check, etc., and her failure to do these things are what she should have been ticketed for.
but the situation was created by the poor design of the facility.
Sunday, December 20, 2009
Saturday, December 12, 2009
an e-mail message
From: "rawillis3@juno.com"
Date: Wed, 1 Jul 2009 20:22:10 GMT
To: mionskelaw@hotmail.com
Cc: markjginsberg@yahoo.com
Subject: uninsured/underinsured
Mr. Mionske,
I was the caller on this morning's Bike Show on KBOO who talked about how people who do not own cars cannot get insurance protection from uninsured and underinsured motorists.
You suggested that some people will buy a clunker to sit in the driveway so they can have access to a liability policy that includes an uninsured/underinsured feature. Until I donated my car to BTA last year -- not by any means a clunker, but very much unused --, this is in effect what I did. But my response to you this morning was that not everyone can do this, and in any event it is unfair to impose on me the cost of insuring against a risk someone else is creating.
You suggested that a motorist who pays for uninsured/ underinsured motorist coverage is also paying for a risk created by someone else, and my reply was that this is not really true, as every motorist participates in creating what I called a "global" risk. Accidents will happen, as they say, but if I do not operate a car, I am entirely on the receiving end.
In any event. Those two hundred words were just to remind you of our conversation and to introduce my actual subject.
Last year I sat down with Karl Rohde, when he was still at BTA, to volunteer my time and energies to his legislative and advocacy efforts, and I mentioned to him my idea that there "ought to be" a fund against which nonmotorists could claim if they were
injured by an uninsured or underinsured motorist. My thought was that the fund might be supplied from court costs and fines from traffic cases, and possibly from premiums on liability policies sold to higher risk drivers.
In the course of doing some background research on this, I stumbled across the a New York statute, copy attached, that has been in place for fifty years, that creates just such a fund, and derives the money entirely from insurance companies as a price of selling liability coverage in the state, period. This might be a bit much to put past the insurance lobby, but maybe in combination with the court costs and fines, etc. it could be saleable. There might also be a market for insurance companies to sell uninsured/underinsured coverage to nonmotorists, to cover situations in which the recovery limits from the fund might be too low. I have not really studied the caselaw arising under the New York statute, or any commentary as to its possible flaws in actual operation.
Turns out New Jersey has a similar law, copy also attached, actually dating back a few years before the New York enactment. Apparently there are similar statutes in Maryland and Michigan, though I have not yet tracked those down.
At the time, I included Mark Ginsburg in my e-mail correspondence with Karl, because he and I had each contributed comments to a thread on the shift2bikes listserv on the subject, and it occurred to me that as I began to try to draft a legislative proposal he might want to have some input. I am again copying him in on this message. Since Karl left BTA, I do not have an e-mail address for him, though I have lately picked him up on Twitter.
I did a bit of drafting on a bill to create a fund to cover people injured or killed by uninsured/underinsured motorists, working from the New Jersey statute, which apparently was the model for the New York statute. But I found finding myself sidetracked in the existing levels of required coverage, penalties for noncompliance, etc. My thinking was we do not want to do this in isolation, but instead convey an across the board message that we are through fooling around. Thus, while the New York and New Jersey statutes use money from liability insurers to create the fund, I am thinking of also adding in money from fees assessed in traffic cases and maybe from driver's license fees, maybe a surcharge on premiums on liability policies sold to higher risk drivers.
Also attached are some data indicating how serious the problem is, in case anyone is not looking. No monetary figures yet, unfortunately, but reasonably good statistical measures showing that about 14 pct. of all motorists out there are uninsured. Apply that figure to the number of injury events, and you are talking real money.
Sincerely,
attachments included
http://ircweb.org/news/20060628.pdf
and
http://www.insurance.ca.gov/0400-news/0200-studies-reports/0600-research-studies/auto-policy-studies/upload/Estimating-the-Uninsured-Vehicle-Rate-from-the-Uninsured-Motorist-Bodily-Injury-Ratio.pdf
Date: Wed, 1 Jul 2009 20:22:10 GMT
To: mionskelaw@hotmail.com
Cc: markjginsberg@yahoo.com
Subject: uninsured/underinsured
Mr. Mionske,
I was the caller on this morning's Bike Show on KBOO who talked about how people who do not own cars cannot get insurance protection from uninsured and underinsured motorists.
You suggested that some people will buy a clunker to sit in the driveway so they can have access to a liability policy that includes an uninsured/underinsured feature. Until I donated my car to BTA last year -- not by any means a clunker, but very much unused --, this is in effect what I did. But my response to you this morning was that not everyone can do this, and in any event it is unfair to impose on me the cost of insuring against a risk someone else is creating.
You suggested that a motorist who pays for uninsured/ underinsured motorist coverage is also paying for a risk created by someone else, and my reply was that this is not really true, as every motorist participates in creating what I called a "global" risk. Accidents will happen, as they say, but if I do not operate a car, I am entirely on the receiving end.
In any event. Those two hundred words were just to remind you of our conversation and to introduce my actual subject.
Last year I sat down with Karl Rohde, when he was still at BTA, to volunteer my time and energies to his legislative and advocacy efforts, and I mentioned to him my idea that there "ought to be" a fund against which nonmotorists could claim if they were
injured by an uninsured or underinsured motorist. My thought was that the fund might be supplied from court costs and fines from traffic cases, and possibly from premiums on liability policies sold to higher risk drivers.
In the course of doing some background research on this, I stumbled across the a New York statute, copy attached, that has been in place for fifty years, that creates just such a fund, and derives the money entirely from insurance companies as a price of selling liability coverage in the state, period. This might be a bit much to put past the insurance lobby, but maybe in combination with the court costs and fines, etc. it could be saleable. There might also be a market for insurance companies to sell uninsured/underinsured coverage to nonmotorists, to cover situations in which the recovery limits from the fund might be too low. I have not really studied the caselaw arising under the New York statute, or any commentary as to its possible flaws in actual operation.
Turns out New Jersey has a similar law, copy also attached, actually dating back a few years before the New York enactment. Apparently there are similar statutes in Maryland and Michigan, though I have not yet tracked those down.
At the time, I included Mark Ginsburg in my e-mail correspondence with Karl, because he and I had each contributed comments to a thread on the shift2bikes listserv on the subject, and it occurred to me that as I began to try to draft a legislative proposal he might want to have some input. I am again copying him in on this message. Since Karl left BTA, I do not have an e-mail address for him, though I have lately picked him up on Twitter.
I did a bit of drafting on a bill to create a fund to cover people injured or killed by uninsured/underinsured motorists, working from the New Jersey statute, which apparently was the model for the New York statute. But I found finding myself sidetracked in the existing levels of required coverage, penalties for noncompliance, etc. My thinking was we do not want to do this in isolation, but instead convey an across the board message that we are through fooling around. Thus, while the New York and New Jersey statutes use money from liability insurers to create the fund, I am thinking of also adding in money from fees assessed in traffic cases and maybe from driver's license fees, maybe a surcharge on premiums on liability policies sold to higher risk drivers.
Also attached are some data indicating how serious the problem is, in case anyone is not looking. No monetary figures yet, unfortunately, but reasonably good statistical measures showing that about 14 pct. of all motorists out there are uninsured. Apply that figure to the number of injury events, and you are talking real money.
Sincerely,
attachments included
http://ircweb.org/news/20060628.pdf
and
http://www.insurance.ca.gov/0400-news/0200-studies-reports/0600-research-studies/auto-policy-studies/upload/Estimating-the-Uninsured-Vehicle-Rate-from-the-Uninsured-Motorist-Bodily-Injury-Ratio.pdf
Thursday, December 10, 2009
whose agenda?
the other day i posted something to jonathan maus' blog to the effect that bikes belong and the sram cycling fund are "focused on recreational cycling."
the context was that these two groups are funding something called cities for cycling, which is a project of the national association of city transportation officials, which in turn is a project of the rudin center for transportation policy and management at nyu. got all that?
jonathan called me out on the assertion, "focused on recreational cycling," saying that bikes belong is "the major supporter of the national safe routes to school effort." so i did a little research, admittedly after the fact.
and let me first say that i think safe routes to schools is at least potentially a good program. how to normalize transportational cycling twenty years out is to indoctrinate kids today. no disagreement there.
however.
the national center for safe routes to school is a program of the federal highway administration. so presumably this in itself is not the effort bikes belong is funding.
something called the safe routes to school national partnership is a coalition of nonprofits, government agencies, etc. which is "hosted" by bikes belong. unclear how much money is involved, as the "partnership" does not file a separate form 990. individual contributions are to be made to the bikes belong foundation, which showed zero income on its short form 990 for 2006.
http://tfcny.fdncenter.org/990_pdf_archive/204/204306888/204306888_200612_990EZ.pdf
other funding sources for the "partnership" include the robert wood johnson foundation, the sram cycling fund, and kaiser permanente. apparently robert wood johnson gave about 1.5 mil. this year, and sram gave a couple hundred thousand. again, unclear what bikes belong's monetary contribution was, but let's imagine it was huge, albeit not transparent.
the bikes belong coalition is an organization of suppliers and retailers that makes grants primarily to offroad trail and other sidepath projects. they say so right in their grants brochure
http://www.bikesbelong.org/files/GrantsBrochure2009.pdf
their grant history for 2005 and 2006 is shown in the form 990 returns filed for those years
http://tfcny.fdncenter.org/990_pdf_archive/391/391946697/391946697_200509_990O.pdf
http://tfcny.fdncenter.org/990_pdf_archive/391/391946697/391946697_200512_990O.pdf
http://tfcny.fdncenter.org/990_pdf_archive/391/391946697/391946697_200612_990O.pdf
no mention of safe routes. some of these grants are for "advocacy," but this includes stuff like the chicago bike fed's sunday parkways.
far and away the largest amount, a couple hundred thousand, half of their total grant money, went to the league of american bicyclists, which in recent years has turned its back on vehicular cyclists. nearly fifteen pct. of lab's total budget, incidentally.
so, yeah, i will stand by the statement that bikes belong is focused on recreational cycling.
sram is just getting started, but they have given 200k to the safe routes partnership, another 200k to bikes belong (circular reasoning), and 400k to be somehow split between lab and the thunderhead alliance, or used by them in some joint effort. they say, to build local advocacy groups. thunderhead has a good history, but as i say, LAB seems to have fallen in with the facilities people.
the context was that these two groups are funding something called cities for cycling, which is a project of the national association of city transportation officials, which in turn is a project of the rudin center for transportation policy and management at nyu. got all that?
jonathan called me out on the assertion, "focused on recreational cycling," saying that bikes belong is "the major supporter of the national safe routes to school effort." so i did a little research, admittedly after the fact.
and let me first say that i think safe routes to schools is at least potentially a good program. how to normalize transportational cycling twenty years out is to indoctrinate kids today. no disagreement there.
however.
the national center for safe routes to school is a program of the federal highway administration. so presumably this in itself is not the effort bikes belong is funding.
something called the safe routes to school national partnership is a coalition of nonprofits, government agencies, etc. which is "hosted" by bikes belong. unclear how much money is involved, as the "partnership" does not file a separate form 990. individual contributions are to be made to the bikes belong foundation, which showed zero income on its short form 990 for 2006.
http://tfcny.fdncenter.org/990_pdf_archive/204/204306888/204306888_200612_990EZ.pdf
other funding sources for the "partnership" include the robert wood johnson foundation, the sram cycling fund, and kaiser permanente. apparently robert wood johnson gave about 1.5 mil. this year, and sram gave a couple hundred thousand. again, unclear what bikes belong's monetary contribution was, but let's imagine it was huge, albeit not transparent.
the bikes belong coalition is an organization of suppliers and retailers that makes grants primarily to offroad trail and other sidepath projects. they say so right in their grants brochure
http://www.bikesbelong.org/files/GrantsBrochure2009.pdf
their grant history for 2005 and 2006 is shown in the form 990 returns filed for those years
http://tfcny.fdncenter.org/990_pdf_archive/391/391946697/391946697_200509_990O.pdf
http://tfcny.fdncenter.org/990_pdf_archive/391/391946697/391946697_200512_990O.pdf
http://tfcny.fdncenter.org/990_pdf_archive/391/391946697/391946697_200612_990O.pdf
no mention of safe routes. some of these grants are for "advocacy," but this includes stuff like the chicago bike fed's sunday parkways.
far and away the largest amount, a couple hundred thousand, half of their total grant money, went to the league of american bicyclists, which in recent years has turned its back on vehicular cyclists. nearly fifteen pct. of lab's total budget, incidentally.
so, yeah, i will stand by the statement that bikes belong is focused on recreational cycling.
sram is just getting started, but they have given 200k to the safe routes partnership, another 200k to bikes belong (circular reasoning), and 400k to be somehow split between lab and the thunderhead alliance, or used by them in some joint effort. they say, to build local advocacy groups. thunderhead has a good history, but as i say, LAB seems to have fallen in with the facilities people.
Tuesday, December 8, 2009
manifesto
so here we are in portland, oregon, a platinum bike-friendly city.
and we do have transportational bicyclists on staff at PBoT, and we have striped bike lanes and green bike boxes and bike boulevards with at least a little traffic calming, and a plan to increase the mode share to 25 pct. over the next twenty years.
but we also have a far to the right law, ORS 814.430, and a mandatory sidepath law, 814.420, each of which has the usual exceptions for avoiding hazards or preparing to make a left turn, but neither of which has an express exception for lane control -- taking the lane in order to prevent an overtaking motorist from passing unsafely. there is a safe passing distance law, but it applies only on roads where the overtaking motorist is going 35 mph or better, and it specifically does not apply where the bicyclist who is being overtaken is in a striped bike lane.
and we have no local control over speed limits.
years ago, the police effectively shut down critical mass in portland, and we now have a reasonably credible statewide advocacy organization, jackets and ties, and in fairness we do have BTA to thank for pushing through the exceptions to the far to the right and mandatory sidepath laws, such as they are, and the safe passing distance law, such as it is.
but BTA has become the complacent two- or three-hundred pound gorilla, shutting out other voices, whether intentionally or not. frankly, maybe the biking "community" in portland has become complacent as well.
okay, so politics is the art of compromise, and what BTA has achieved is an improvement over the way things were. but the purpose of compromise in politics is to consolidate your gains and continue to work for incremental change, not to just sit back and accept half a loaf.
it took more than fifty years for motorists to achieve a position of dominance on our roads (and of course it took marketing and consumerist capitalism), and it may take awhile to unwind all that. but we need eventually to get to a place where motorists are continually aware that they are operating dangerous machinery and they need to watch the hell out for people they might hurt or kill. we need to get to a place where motorists are the secondary, not the primary, users of public space. BTA is not going to get us there, because they do not see that as the goal. and of course PBoT is not going to get us there unless there is pressure from the grassroots.
so what is needed is an edgier, angrier voice for bicyclists and pedestrians, a bad cop to BTA's good cop. the agenda might include not only getting rid of the far to the right and mandatory sidepath laws, but also getting local control of speed limits (and then leaning on the city to implement some lower limits), and maybe creating a fund from which pedestrians and cyclists can recover when they are struck by uninsured or underinsured motorists.
and we do have transportational bicyclists on staff at PBoT, and we have striped bike lanes and green bike boxes and bike boulevards with at least a little traffic calming, and a plan to increase the mode share to 25 pct. over the next twenty years.
but we also have a far to the right law, ORS 814.430, and a mandatory sidepath law, 814.420, each of which has the usual exceptions for avoiding hazards or preparing to make a left turn, but neither of which has an express exception for lane control -- taking the lane in order to prevent an overtaking motorist from passing unsafely. there is a safe passing distance law, but it applies only on roads where the overtaking motorist is going 35 mph or better, and it specifically does not apply where the bicyclist who is being overtaken is in a striped bike lane.
and we have no local control over speed limits.
years ago, the police effectively shut down critical mass in portland, and we now have a reasonably credible statewide advocacy organization, jackets and ties, and in fairness we do have BTA to thank for pushing through the exceptions to the far to the right and mandatory sidepath laws, such as they are, and the safe passing distance law, such as it is.
but BTA has become the complacent two- or three-hundred pound gorilla, shutting out other voices, whether intentionally or not. frankly, maybe the biking "community" in portland has become complacent as well.
okay, so politics is the art of compromise, and what BTA has achieved is an improvement over the way things were. but the purpose of compromise in politics is to consolidate your gains and continue to work for incremental change, not to just sit back and accept half a loaf.
it took more than fifty years for motorists to achieve a position of dominance on our roads (and of course it took marketing and consumerist capitalism), and it may take awhile to unwind all that. but we need eventually to get to a place where motorists are continually aware that they are operating dangerous machinery and they need to watch the hell out for people they might hurt or kill. we need to get to a place where motorists are the secondary, not the primary, users of public space. BTA is not going to get us there, because they do not see that as the goal. and of course PBoT is not going to get us there unless there is pressure from the grassroots.
so what is needed is an edgier, angrier voice for bicyclists and pedestrians, a bad cop to BTA's good cop. the agenda might include not only getting rid of the far to the right and mandatory sidepath laws, but also getting local control of speed limits (and then leaning on the city to implement some lower limits), and maybe creating a fund from which pedestrians and cyclists can recover when they are struck by uninsured or underinsured motorists.
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