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Legally Speaking - with Bob Mionske: When is a crosswalk not a crosswalk?
Dear Bob,
Your September 7 column on crosswalks (See "CrossingGuard") hit close to home here in Minnesota. Under Minnesota law andas discussed by the MUTCD (Manual on Uniform Traffic Devices}, mid-blockcrossings can (and of course do) exist. The MUTCD explicitly states thatwhen crosswalk paint is applied to the roadway, the crossing is legallydeemed a crosswalk. But what happens if the city decides to remove thecrosswalk striping completely, put up signs that state "This is not a crosswalk,"yet leave in place advance warning signs that announce the trail, and atrail sign right at the crossing that even has the arrow pointing downtowards the crossing?
Due to the trail signs, is this still legally a crosswalk?The MN State Patrol seems to believe this is the case. County, state, andfederal design guidelines all clearly depict such crossings with crosswalkstriping in place, indicating that the authors believe that these mid-blockcrossings must be treated as crosswalks. So far, only 1 city in the entiremetropolitan area has decided to part ways (for now) with all of this.Do we need federal codification to classify these crossings as crosswalks?Do we close down the trails as the city initially threatened? (the trailsin question are high use regional trails, with bicycles representing 85%of the mix) In the preceding 2 years, there have been 0 bicycle accidents,according to state of MN. In 2006, there have been 2 accidents, one beforethe crosswalk paint was removed and one after. These happened while crossingbusy 4 lane 30 mph roads.
Regards,
G.A.
Minnesota
Dear G.A.,
Ah, no sooner do I pose a hypothetical about the dangerous situation where a trail crosses a highway without a designated crosswalk, than somebody writes in to tell me that a city has decided to paint out the crosswalks where a trail crosses the highway. I was just sort of assuming that nobody would be so foolish as to make trail crossings dangerous; here, a city has decided to make a trail crossing more dangerous. So… Is this trail crossing still a crosswalk? And can the city even do this?
Still a crosswalk?
Before we get to the answer to your question, let’s go over some terms. Although you asked about the MUTCD, I’m going to go straight to the Vehicle Code, because that’s State law, whereas the MUTCD is the set of regulatory standards which implement State law. Many of these MUTCD regulatory standards, including most of the crosswalk standards, are merely guidelines, rather than mandatory, and don’t really tell us what we need to know about this situation, so let’s take a look at the Vehicle Code to see what the law is. In Minnesota,A “Bicycle path” means a bicycle facility designed for exclusive or preferential use by persons using bicycles and constructed or developed separately from the roadway or shoulder.A “State trail” means a trail established as a part of the Outdoor Recreation System, and meeting certain recreational criteria, with the objective of providing the “maximum potential for the appreciation, conservation, and enjoyment of significant scenic, historical, natural, or cultural qualities of the areas through which the trail may pass;” A “Bicycle trail” means a bicycle route or bicycle path developed by the commissioner of natural resources. This type of trail utilizes State trails.
Now, I’m guessing that you’re referring to Metropolitan regional trails, rather than the State trail system. Metropolitan trails are governed by the Metropolitan Council, rather than by the state. Nevertheless, because a trail is a “highway” in Minnesota, the Vehicle Code applies; therefore, the State’s Vehicle Code definitions will also apply to the Metropolitan regional trail system, regardless of whether the individual trail section is a State trail, a regional trail, or a local trail.
Now let’s go back to the "Crossing Guard" column for a bit of review. As you may recall, in Arizona a crosswalk is an extension — let’s call it an imaginary extension — of the sidewalk across the roadway at an intersection. That is the law in Minnesota as well. And as in Arizona, in Minnesota a crosswalk does not need to be indicated by markings on the roadway if it’s at an intersection. However, in both Arizona and Minnesota, a crosswalk which is not at an intersection must be “distinctly indicated for pedestrian crossing by lines or other markings on the surface.”
Ok, now let’s get to your first question: Must the trail be “distinctly indicated for pedestrian crossing by lines or other markings on the surface” where it crosses a roadway in order to be a crosswalk? The truth is, there’s no clear answer to that question. Good arguments can be made either way. Nevertheless, I believe that the answer is no, the trail does not need to be painted where it crosses the roadway in order for it to be a crosswalk. Let’s look at the arguments on each side to see why.
The “Letter of the Law” Argument: The trail crossing is not a crosswalk
In Minnesota a bicycle is a vehicle, so a bicycle trail is considered a “highway.” And because a bicycle trail is a highway, the place where the trail and the roadway cross is an intersection. As we saw, a crosswalk is an extension of the sidewalk across the roadway at an intersection. Based on these facts, one could argue thatBecause a bicycle trail is a type of highway “designed for exclusive orpreferential use by persons using bicycles”; andBecause a sidewalk is that portion of a highway between the curb or shoulder and the adjacent property that is “intended for the use of pedestrians”; andBecause there is no portion of the bicycle trail between the trail roadway and the adjacent property “intended for the use of pedestrians,” there is no sidewalk;Therefore, the intersection of the trail and the roadway can not be a crosswalk unless it is “distinctly indicated for pedestrian crossing by lines or other markings on the surface.”Because the intersection is not painted as a crosswalk, it is not a crosswalk.This argument is a “letter of the law” argument that relies on statutory definitions for its strength. So if the statutory definitions tell us that this isn’t a crosswalk, isn’t that the end of it? What’s the argument that it is a crosswalk?
The “Spirit of the Law” Argument: The trail crossing is a crosswalk
The counter to that “letter of the law” argument is that although technically, the definitions in the statute place sidewalks at the margins of the highway, there is no indication that the legislature intended so narrow a construction of the law. Instead, the statute should be interpreted to reflect the intent of the legislature; this is the “spirit of the law.”
Because a sidewalk is that portion of the highway intended for pedestrians, and because the entire width of the trail is intended for pedestrians, even if the trail is “designed for preferential use by persons using bicycles,” the entire trail should be considered the functional equivalent of a sidewalk for pedestrian purposes (and in fact, the Metropolitan Council plans many of the trails primarily for pedestrian use, with bicycling allowed “where it can be safely accommodated with pedestrian traffic.”). Therefore, because the entire trail is the functional equivalent of a sidewalk at the intersection, the crossing is legally a crosswalk, whether or not the crosswalk is indicated with paint. I believe that this argument best reflects the legislature’s intent, and therefore, is the correct interpretation of the statute.
Can the city do this?
Besides the question you asked — are these trail crossings still crosswalks? — the city’s actions raise some other interesting legal questions. If Minnesota bicyclists wanted to challenge the legality of this city’s actions, these are some of the legal questions they’d want to look at:Whether the removal of the paint at the crosswalks is an unconstitutionalexercise of the city’s police power. Generally, government has a broad“police power” to regulate for the public health and safety. However, eventhese broad powers have limitations. In State v. Stallman, the MinnesotaCourt of Appeals agreed with a federal court in Pennsylvania that the regulationof intrastate travel (travel entirely within the state) must be “narrowlytailored to meet significant city objectives.” One constitutional questionraised by the city’s action is whether removing the crosswalk markingsand erecting signs that state it is not a crosswalk is an exercise of itspolice power that is so broad as to be unnecessary to meet the city’s objective.If the city’s action is too broad, it is in violation of the Minnesotaconstitution.Whether the removal of the paint at the crosswalks results in cyclistsbeing treated differently than motorists in a manner that is an unconstitutionalviolation of the equal protection clauses of the Minnesota and United StatesConstitutions.Whether the removal of the paint at the crosswalks is in conflict withstate law. If this trail crossing is in fact still a crosswalk, then placingsigns, as the city did, stating that it is not a crosswalk may be in violationof Minnesota Vehicle Code Section 169.022, which requires the uniform applicationof the Vehicle Code throughout the state, unless a local traffic ordinancemeets one of the six exceptions found in Section 169.04 of the VehicleCode.Whether the city has the authority to carry out its threatened action toclose trail sections that are a part of the regional trail system governedunder authority of the Metropolitan Council.
So what does this mean if you want to cross the street?
The effect of the city’s action will depend on whether the trail crossing remains a crosswalk or not, so let’s look at the two possibilities. First, let’s assume that the city is right, and that this intersection is no longer a crosswalk. In Minnesota, all pedestrians are required to yield the right-of-way to all vehicles upon the roadway unless they are within a marked crosswalk or at an intersection with no marked crosswalk. If the pedestrian is crossing within a marked crosswalk, or at an intersection with an unmarked crosswalk, vehicles are required to yield the right-of-way to the pedestrian. Now, even though the city has removed the paint from the roadway, this intersection remains an intersection, but the question at issue is whether there’s an unmarked crosswalk in place at this intersection. The city maintains that there is no crosswalk, so as far as the city is concerned, pedestrians must yield to vehicles when they cross.
But what about bicycles? In Minnesota, a bicycle is a vehicle, and is thus subject to the rules for vehicles (at least when you’re riding rather than walking across). What the city has unwittingly created at this intersection is a through highway, although the city hasn’t thought of designating it (yet) as a through highway, which means that all bicycles must stop before crossing the through highway, and must yield the right-of-way to vehicles on the through highway
“which have entered the intersection from the through highway or are approaching so closely on the through highway as to constitute an immediate hazard, but the driver having so yielded may proceed, and the drivers of all vehicles approaching the intersection on the through highway shall yield the right-of-way…”
So, to recap, according to the city, pedestrians must yield to all vehicles when crossing at this intersection, while bicyclists must first stop before proceeding across, and must yield to any vehicle that is so close as to constitute an immediate hazard; all other vehicles must yield to the bicyclist. Although this is the law in Minnesota, it seems unlikely, given the city’s attempts to “erase” this crosswalk, that the city understands that bicycles still have this right-of-way. Unfortunately, the fact that bicyclists still enjoy the right-of-way at this intersection is probably not readily apparent to motorists on the roadway, because the city has removed the paint which would have notified motorists to be on the lookout for trail users crossing the roadway.
But what if my interpretation is correct, and this really is still a crosswalk? For pedestrians, the difference would be that the pedestrian would have the right-of-way while in the crosswalk, but would be prohibited from entering the path of a vehicle that is so close that it would be impossible for the driver to yield. Bicyclists, on the other hand, must still stop at the stop sign, but then would have the right-of-way once they have entered the crosswalk. In other words, whether the city’s argument is correct, or my argument is correct, bicyclists must first stop at the stop sign, but then, once they have legally entered the intersection, all other vehicles must yield to the crossing bicyclist. What the city has really accomplished here is making the trail crossing less visible, and therefore, more dangerous.
Your Mileage May Vary…
In response to the Crossing Guard column, several readers wrote about the crosswalk laws in their state. As always, the laws will vary from state to state. In Minnesota, as in Arizona and New Jersey, the statutes don’t explicitly address the status of bicyclists in the crosswalk. In Wyoming, the crosswalk law also addresses pedestrians, rather than bicyclists. However, reader E.E. wrote to inform us that in July of this year, the Wyoming Supreme Court handed down an opinion on bicyclists in the crosswalk. In Nish v. Schaefer, the Court held that
A bicyclist must follow the rules applicable to vehicles when riding on the roadway; however, since a bicyclist may also use sidewalks, he has the same rights as pedestrians to use crosswalks at intersections.
Note that the Wyoming Supreme Court did not say that bicyclists must walk while in the crosswalk; they have the same right in the intersection that they have on the sidewalk, which means that in Wyoming, you have the same right-of-way in the crosswalk that pedestrians enjoy, even if you ride across.
Some states, on the other hand, do explicitly address the status of bicyclists in the crosswalk. Reader J.S. writes that “the law in Illinois is much clearer. Whereas a pedestrian is defined as a person on foot, the law explicitly states that
A person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall have all the rights and duties applicable to a pedestrian under the same circumstances.”
This Illinois traffic regulation applies except “where such use of bicycles is prohibited by official traffic-control devices.”
And from Colorado, reader M. reports that although the Colorado Vehicle Code generally allows cyclists the same rights and duties as a pedestrian, it also states that
A person shall not ride a bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances.
M. observes that “the problem is that it is not feasible when on a bike ride that covers many towns, to know if a local ordinance prohibits using the sidewalk or crosswalk when cycling.” Perhaps Virginia’s approach would help in Colorado. Reader J.R. writes from Virginia that
Your "Crossing Guard" article reminded me of some road crossing problems and discussion we had here in Virginia on our W&OD Trail last year after two cyclists were killed at crossings. One guy actually ran into the "side" of a van. I believe the van probably had the right-of-way at that point. If you’re not familiar, the trail runs from Washington, D.C. out into the Virginia hills, about 50 miles. As you can image there are probably 100 or more road crossings. In Virginia, State code Section 46.2-904, says that a person riding a bicycle in a crosswalk has the same rights and duties as a pedestrian. It's nice that here in Virginia they make that very clear in the law!
Although Virginia law also restricts bicycling on sidewalks and crosswalks where prohibited by “official traffic control devices” and local ordinances, the law requires that “such prohibition shall be conspicuously posted in general areas…”
As you can see, the clarity of the law, as well as what the law actually allows, will vary from state to state. Regardless of what state you ride in, however, there’s no excuse for a city to make a trail crossing more dangerous, and especially so when that trail crossing remains a crosswalk under state law. Maybe it’s time for a little bicycle activism in Minnesota?Good luck,
Bob(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.
