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Legally Speaking - with Bob Mionske: Law of the land

Published: Dec. 15, 2005

Dear Bob,
I've Googled, and I’ve searched the Kentucky Legislature site, butthe only Kentucky "laws" I can find dealing with bikes on the road areabout lights, reflectors, etc. I can't find anything about cars havingto pass bikes with 3 feet of clearance (which appears to be the "universalstandard"). I've looked through both the Kentucky Revised Statutes andthe Kentucky Administrative Rules, and there's nothing other than"Wear a helmet" and "use a reflector.”I’ve tried asking cops. A local cop didn't know of any bike-specificlaws. I talked with a state cop. He had no idea of any bike specific laws,other than "No riding on sidewalks or on the interstate."I made some phone calls. When I called two of the offices of legislatorson the Kentucky Bicycle Commission they didn't even know what I was talkingabout until I reminded them that they're on the commission. I calledthe local city police chief: "I'm not aware of any regulations for bicyclesin Kentucky, other than the requirement for a helmet." I called the CountySheriff's office: "There are no laws on the books dealing with bicycles."I called the State Police office: "Aside from it being illegal to rideon the interstate, the only laws I know of require you to wear a helmet,and have reflectors. We recommend you have a horn or bell of some kind,but that's optional."So... How in the blue blazes can I find a list of the bicycle laws forKentucky? Or aren't there any? Any further ideas?
MC,
Newport, Kentucky
 Dear MC,
You are truly blessed to hail from home of the NewportAquarium- which boasts a submerged Santa… in a shark tank, no less!Anyway, Kentucky has a Bicycle Commission? That sounds like a great idea.If only the Commissioners actually knew they were on the BicyclingCommission, imagine what they could accomplish...So, it sounds like you’re kind of asking two questions here. One is,“What laws does Kentucky have regarding bicycles (and where can I findthem)?” and the other is “Are cars required to observe the “universal standard”of three feet of clearance when passing a bicycle?” For the first question,I turned to the Kentucky Revised Statutes, or KRS, just to see if theretruly is nothing in there regarding bicycles. To tell you the truth, itseemed hard to believe that there would be nothing on the books. The reasonis because of something called the Uniform Traffic Laws.Uniform Traffic Laws
You know, living in a country with 50 states means we have 50 separatestate legislatures each writing their own separate traffic codes. So there must be 50 completely different traffic codes in effect across the UnitedStates, right?Well, yes…and no. Consider the following statutes on bicycles:West Virginia—West Virginia Code Section 17C-11-2: “Every person riding a bicycle upon a roadway shall be granted all of the rights andshall be subject to all of the duties applicable to the driver of a vehicle…”Virginia—Code Of Virginia Section 46.2-800: “Every person ridinga bicycle…on a highway shall be subject to the provisions of this chapterand shall have all of the rights and duties applicable to the driver ofa vehicle…”Tennessee—Official Tennessee Code Section 55-8-172: “Every personriding a bicycle upon a roadway is granted all of the rights and is subjectto all of the duties applicable to the driver of a vehicle…”Missouri—Missouri Revised Statutes Section 307.188: “Every personriding a bicycle or motorized bicycle upon a street or highway shall begranted all of the rights and shall be subject to all of the duties applicableto the driver of a vehicle…”Illinois—Illinois Compiled Statutes Chapter 625 Section 5/11-1502:“Traffic laws apply to persons riding bicycles. Every person ridinga bicycle upon a highway shall be granted all of the rights and shall besubject to all of the duties applicable to the driver of a vehicle…”Indiana—Indiana Statutes Annotated Section 9-21-11-2: “Everyperson riding a bicycle upon a roadway has all of the rights and dutiesthat are applicable to a person who drives a vehicle…”Ohio—Ohio Revised Code Section 4511.52: “Ohio Revised Code Operationof Motor Vehicle Sections] which are applicable to bicycles apply whenevera bicycle is operated upon any highway or upon any path set aside for theexclusive use of bicycles.”Isn’t it remarkable how those seven states—Kentucky’s neighbors—each havenearly identical statutory language regarding bicycles? How did that happen?Well, in 1924, Herbert Hoover, then Secretary of Commerce of the UnitedStates, organized a meeting of a National Conference on Street and HighwaySafety, to “devise and recommend measures which would reduce the trafficaccidents in the country.” Meanwhile, in 1923, the National Conferenceof Commissioners on Uniform State Laws decided that there was a need foruniform traffic laws in the states. Out of these beginnings, a UniformTraffic Law was developed for adoption by the various states. The workof developing uniform traffic laws continues today through the NationalCommittee on Uniform Traffic Laws and Ordinances. This private, non-profitorganization drafts uniform traffic laws that all of the states are encouraged,but not required, to adopt. States are free to adopt all of a proposedtraffic law, some of the law, or to reject the proposed law. Typically,because the uniform traffic laws are vetted thoroughly by experts beforethey are released to the states, they tend to be adopted by the states.And that’s why you see seven different states with nearly identicallanguage concerning bicycles. But what about your state?Kentucky Bicycle Laws
Then there’s Kentucky. Unique among the surrounding states, Kentuckydoes not appear to have a comparable statutory section on bicycles; Kentuckyappears to be one of those states that has not adopted that section ofthe Uniform Traffic Law. However, that is not to say that there are nostatutes dealing with bicycles. If you take a look at KRS 189.010(19)(a),you will see that “‘Vehicle’ includes:1. All agencies for transportation of persons or property over or uponthe public highways of the commonwealth; and 2. All vehicles passing overor upon the highways.”Under that definition, a bicycle is a vehicle. Now, some states havestatutory language at the beginning of their traffic code that says thetraffic code applies to all vehicles. Not Kentucky. No, Kentucky just kindof assumes that you understand that the traffic code applies to all vehicles.Maybe they just have more common sense in Kentucky—who knows? Anyway, inKentucky, a bicycle is a vehicle, and therefore, any law that applies tovehicles—generally, Chapter 189—would apply to bicycles. In fact, whenthe Kentucky Legislature wants to be clear that it is talking about motorvehicles, and not just any kind of vehicles, it uses the word “motor vehicle”instead of “vehicle.” And that is the key to understanding how the KentuckyRevised Statutes regulate bicycles.Now, there are also some specific mentions of bicycles in the KentuckyRevised Statutes. The most prominent mention of bicycles is in Section189.287, which authorizes the Transportation Cabinet to promulgatebicycle safety regulations and standards. The bicycle safety regulationsare found at the Kentucky Administrative Regulations, or KAR.The two main regulations are 601 KAR 14:020 (Bicycle safety standards)and 603 KAR 5:025 (Fully-controlled access highways). Although bicyclesare mentioned in eight other KAR sections, these two are the mainones you would likely be concerned with, and I encourage you to read them.There’s more. Remember that State Police office that said that hornsare recommended, but optional? They might want to take a look at KRS189.080, which states “every motor vehicle and bicycle, when in useon a highway shall be equipped with a horn or other device capable of makingan abrupt sound sufficiently loud to be heard under all ordinary trafficconditions.” 601 KAR 14:020 further specifies that “a bicycle maybe equipped with a bell, horn, or other device capable of making an abruptsound,” and that “every person operating a bicycle shall shout or soundthe bell, horn, or other device whenever necessary as a warning…but shallnot sound the horn or sound device unnecessarily.” However, “a bicycleshall not be equipped with a siren or whistle.” And what about that lawthat requires you to wear a helmet? It’s not in the KRS, or theKARfor that matter. Now, there may be a local ordinance somewhere in Kentuckythat requires wearing a helmet, so you’ll want to check on that, but thisreally seems like a case of law enforcement not knowing what the law requires.Which brings me to another point—municipal and county governments mayhave their own ordinances regulating traffic, and these may be applicableto bicycles as well, so in addition to knowing Kentucky statutes, you mayneed to be familiar with local ordinances.As a final note, in addition to the statutes discussed above, you willalso want to take a look at KRS 189.040 (Required lights), KRS174.120 (Statewide bicycle and bikeways program), KRS 174.125(Bicycle Commission), KRS 148.775 (Coordination of efforts to developbicycling opportunities), and KRS 411.190 (Obligations of ownerto persons using land for recreation).Passing Clearance
Now, what about that “universal standard” of three feet clearance forpassing vehicles? In Kentucky, KRS 189.340 deals with vehicles overtakingother vehicles. Generally, this section of the statute requires vehiclesto pass on the left, except under certain conditions; however, it doesnot require 3 feet of clearance for passing any vehicle. The Court of Appealsof Kentucky addressed the question of safe clearance for passing—sort of—ina 1965 case called Railway Express Agency, Inc. v. Warfield. Inthat case, a passenger vehicle passing a delivery truck on a two lane roadcollided with the delivery truck as it was passing; the court addressedthe question of whether the driver of the passenger vehicle was negligentby attempting to pass while partially in the same lane the truck was in.The court refused to find negligence, stating that the statute “does notnecessarily mean that the overtaking vehicle must in any and all eventsbe entirely across the center line while in the act of passing. Ordinarycare in that respect depends to a degree on the width of the road and thesize of the vehicles.” So, applying that standard to a motor vehicle passinga bicycle, the vehicle must take into account the width of the road andthe size of the two vehicles. Although the statute itself doesn’t describea safe clearance for passing, it is clear from this ruling that a vehiclethat passes too close—one that doesn’t take the width of the road and thesize of the vehicles into account—would be considered negligent in theevent of a collision.Now, this ruling is still in effect today, but it’s interesting to notethat the underlying statute has changed over the years. This ruling wasbased in part upon a statutory requirement that “the vehicle being overtaken[must] ‘give way to the right.’” That section of the statute is no longerin effect, so it is unclear whether the Court would continue to use thisstandard, or adopt a different standard, in another case involving thisstatute. There is a section of this statute requires that “the operatorof a motor vehicle shall not follow another vehicle more closely than isreasonable and prudent, having regard for the speed of the vehicle andthe traffic upon and condition of the highway.” Based on that, and theruling in Railway Express Agency, Inc. v. Warfield, my best guessis that a Court would rule that “ordinary care” means to not pass moreclosely than is reasonable and prudent, and depends upon the width of theroad and the size of the vehicles.Now, that’s my guess as to the standard for negligence, but it doesn’ttell us what the standard is when there is no accident involved. For that,we need to look to another section of the KRS. Section 189.290 requiresthat

“[t]the operator of any vehicle upon a highway shall operatethe vehicle in a careful manner, with regard for the safety and convenienceof pedestrians and other vehicles upon the highway.”

While that doesn’t spell out a three-foot clearance for passing a bicycle,both this section and the section on overtaking vehicles are written broadlyenough to give any police officer authority to cite drivers if the officerfeels that the driver is passing too closely to your bicycle.But what about that “universal standard” of three feet? Well, it’s abig country, so I only checked statutes for a few states—again, the sevenstates surrounding Kentucky. Here’s what I came up with:West Virginia—West Virginia Code Section 17C-7-3: “The driverof a vehicle overtaking another vehicle proceeding in the same directionshall give an audible signal and pass to the left thereof at a safe distanceand shall not again drive to the right side of the roadway until safelyclear of the overtaken vehicle…”Virginia—Code Of Virginia Section 46.2-838: “The driver of anyvehicle overtaking another vehicle proceeding in the same direction shallpass at least two feet to the left of the overtaken vehicle and shall notagain drive to the right side of the highway until safely clear of suchovertaken vehicle…”Tennessee—Official Tennessee Code Section 55-8-117: “The driverof a vehicle overtaking another vehicle proceeding in the same directionshall pass to the left thereof at a safe distance and shall not again driveto the right side of the roadway until safely clear of the overtaken vehicle…”Missouri—Missouri Revised Statutes Section 304.016: “The driverof a vehicle overtaking another vehicle proceeding in the same directionshall pass to the left thereof at a safe distance and shall not again driveto the right side of the roadway until safely clear of the overtaken vehicle…”Illinois—Illinois Compiled Statutes Chapter 625 Section 5/11-703: “The driver of a vehicle overtaking another vehicle proceeding inthe same direction shall pass to the left thereof at a safe distance andshall not again drive to the right side of the roadway until safely clearof the overtaken vehicle…”Indiana—Indiana Statutes Annotated Section 9-21-8-5: “A personwho drives a vehicle overtaking another vehicle proceeding in the samedirection shall pass to the left of the other vehicle at a safe distanceand may not again drive to the right side of the roadway until safely clearof the overtaken vehicle…”Ohio—Ohio Revised Code Section 4511.27: “The operator of a vehicle…shall…signalto the vehicle…to be overtaken, shall pass to the left thereof at a safedistance, and shall not again drive to the right side of the roadway untilsafely clear of the overtaken vehicle…”As you can see, the vast majority of these states require a “safe distance,”but do not specify a minimum distance. The exception is Virginia, whichrequires a minimum distance of two feet. Now, without checking all fiftystates, my guess is that you would find a similar result in a nationwidesearch of traffic laws. Based on this limited search, the “universal standard”appears to be a “safe distance.”Regardless of whether your own state’s bicycle statutes are easy ordifficult to find, here’s a homework assignment for everybody. Ask yourlocal bicycling advocacy organization if they have a handbook of stateand local bicycle laws. If they do have a handbook, ask them for a copyand study it. If they don’t have a handbook, ask them to consider publishingone, and volunteer to take the lead on that project. These little handbooksare great, because they put all the state’s bicycle-related laws into oneresource, which makes it easy for us to know the law, even when the policeand general public don’t know the law.Good luck,
Bob
(Research and drafting provided by Rick Bernardi- law student-Lewisand Clark Law School)
 

Now read the fine print:

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.