Let’s return to our recent post about the National Conference of State Legislatures analysis of safe passing laws across our 50 states (and the District of Columbia). Their survey of legislation showed that nationwide our laws vary considerably to create a patchwork of protections (as reflected in the map). Coming out near bottom is our very own State of California with no 3-foot passing law and only a general ‘due care’ provision on the books. We can do better! Let’s take a look at some of the states that do better as we look ahead to safer streets for cyclists.
The ‘due care’ principle seems straightforward enough: cyclists would ride the public roadways with a reasonable expectation of safety because motorists must take ‘due care.’ But in a collision, that principle yields to sober reality: the 25-pound rider on a human-powered device will not fare well against a two-ton vehicle. Moreover, the ‘due care’ requirement mocks the obvious: motorists simply do not always afford cyclists a wide berth when passing.
Adding insult to injury, we’ve heard many cases where cyclists are unable to secure an investigation or recover damages because the police report was colored by the presumption that accidents happen. Recently Better Bike filed a police report after being broadsided by a speeding SUV in May, but the police report omitted our observation about the excessive speed. Instead it parroted the driver’s narrative: she was driving slowly and carefully and just didn’t see a cyclist. We’ve filed an amended statement but found that it was not actually attached to the original report when we asked for a second copy a month later.
Blogger Ted Rogers highlights the cumulative outcome of treating collisions like ‘accidents’: 45 cyclists have died or been killed on Southern California roads to date this year. While causes range from solo crashes to willful manslaughter, many of these tragic situations arise from simple negligence: the motorist failed to pass the slow-moving cyclist with due care. Safe passing laws try to address that problem with statutory language to guide motorists sometimes an objective standard by which negligence can be demonstrated. But which is more troubling: that we must quantify safe-passing for licensed drivers or that we need to remind drivers to drive responsibly at all?
What the Laws Say
Sadly, when we look at this inventory of safe-passing laws we see little creativity in addressing the causes and consequences of car-bike conflict. What prevails instead is a generic standard of ‘due care’ that sidesteps the issue or a 3-foot minimum that defaults to a low bar as a safety standard. Ten states embrace only the ‘due care’ provision while of the 20 that do identify a required minimum passing distance, the vast majority (18) simply adhere to a boilerplate 3-foot minimum regardless of topography or situation. Have a look at the map:
But boilerplate misses the point, doesn’t it? The 3-feet passing laws merely allow legislators to check off the ‘mission accomplished’ box. Why dig into often-contributing factors like speed or nuance the bill’s language when you can simply call it done?
But two states do tweak that minimum distance: Virginia & New Hampshire. Virginia deserves special mention for low-balling a minimum safe passing distance: alone among the 20 states it sets the distance at only two feet. And it mandates only a “reasonable speed” when passing rather than specify, say, a maximum speed difference at that proximity. For Virginia legislators, two feet at highway speeds is safety cushion enough while ‘reasonable’ leaves much wiggle room for defendants. Perennially a Texas wannabe, Virginia has it’s cake (the law) and eats it too (it’s weak) and cyclists will come out on the losing end.
New Hampshire, by contrast, steps up the minimum required safe passing distance in accordance with the velocity of the passing vehicle. How innovative! The state stands alone in requiring that drivers add one foot (to the baseline 3-foot minimum) for each 10 mph above 30 mph travel speed. So at 40 mph, for example, the driver must allow four feet. At fifty it becomes five feet, etc. (Note that the increase is not pegged to a difference in speed but instead recognizes vehicular speed. It’s the difference between a fuzzy guess on the part of a motorist and a less-subjective glance at the speedometer.)
Oregon also sets a new standard with language that defines safe passing distance as “sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic.” The statute reads:
The driver of a motor vehicle may only pass a person operating a bicycle by driving to the left of the bicycle at a safe distance and returning to the lane of travel once the motor vehicle is safely clear of the overtaken bicycle. For the purposes of this paragraph, a “safe distance” means a distance that is sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic. ORS § 811.065
Alone among all states, Oregon recognizes that conditions vary and that safe passing must acknowledge them. Road width, pavement quality, motorist distraction, and cyclist experience each help establish a safety margin for the cyclist, and Oregon expects drivers to take them all into account precisely because close passing nibbles away at the safety margin. It leaves much less room for error. No shoulders? Then cut the cyclist a wide berth, fella!
For cyclists more than motorists, safe passing is about perception. The feeling of safety in a passing situation is a function of both distance from the vehicle and a difference in velocity. We hear people all the time say, “I want to ride but I don’t feel safe because the cars pass so close.” That’s certainly true here in Beverly Hills. We have few right-hand lanes wide enough to share with motor vehicles. Yet we’re expected to share the road.
That’s where New Hampshire’s law shines: it highlights the relationship between proximity and speed difference that helps to define the safety margin but as important shapes the cyclist’s feeling about sharing the road. The statute reads:
Every driver of a vehicle, when approaching a bicyclist, shall insure the safety and protection of the bicyclist and shall exercise due care by leaving a reasonable and prudent distance between the vehicle and the bicycle. The distance shall be presumed to be reasonable and prudent if it is at least 3 feet when the vehicle is traveling at 30 miles per hour or less, with one additional foot of clearance required for every 10 miles per hour above 30 miles per hour. (265:143-a)
When States Don’t Lift a Finger….
California is one of the ten states that have no bike-specific safe-passing law in place. Instead these states fall back on the ‘due care’ requirement. This past Fall even boilerplate 3-foot minimum bill language proved too draconian for opponents of safe-passing legislation. So Governor Brown responded to CHP and Auto Club lobbying by vetoing a decent bill. This year we’re back with a new bill (SB 1464) and an advocacy campaign spearheaded by the California Bicycle Coalition. Should we not pass this one we’ll remain with at least 19 states in the bottom of the class, so to speak – those without any statutory language about safe passing of cyclists at all.
State reprobates include New Jersey. It stands out as an island in the Northeast for many things, including the spurning of federal assistance for capital improvement projects. More and more, New Jersey is looking like the Mississippi of the Northeast with a political environment out of the sun belt. Back in the day, in NYC we vilified the state as the doormat to the nation. We derided residents bourgeois yokels. But we loved their cheap gas.
Today things look different. We don’t much care for cheap gas anymore, and the craven closed-minded political rhetoric of Trenton finds ominous refrain in the hate-filled corridors of Arizona and Florida statehouses. Instead of belly-aching about congested roads, rising tolls, property taxes and high car insurance rates, our good friends in the Garden State might reconsider two-wheeled travel (if only to save a few bucks). Then maybe they would favor a safe-passing law. But Trenton is probably too dysfunctional to pass it anyway, and in any event Christie would veto it. On a bike he would need his own travel lane anyway, so he’s not in danger of passing vehicles.
What needs to be said about Appalachian states like West Virginia, Kentucky and southeast Ohio that also eschew bike safety? With narrow mountain roads and few services, the cyclist is in particular need of safeguards there, but any populace that cuts off mountaintops to fill streams with mine tailings won’t be likely to placate cyclists. Nor do we expect action from the northern Great Plains or a state like Texas, where the freedom to buzz or harass a cyclist remains a birthright.
We expected more from the Hawaiian islands though. Shame on you! You are nature’s paradise with a democratic statehouse can’t even enact safe-passing protection for cyclists?
The Safe-Passing Agenda in California
Here in Southern California, we need a law that doesn’t stop at a 3-foot standard but instead borrows from the very few good ideas presented by the Conference’s findings especially because cyclists here navigate a variety of conditions from congested streets to broad suburban thoroughfares. How to approach it?
We could begin by stepping up the minimum passing distance with vehicle speed like New Hampshire does. That would address situations like Orange County where streets are made “dangerous by design” (to quote last year’s report) by traffic engineers. We could include language like Oregon’s to remind motorists about the safety margin (or envelope) accorded each rider no matter the skill level, speed or appearance.
And we should put sanctions to drivers who fail to safeguard cyclists’ safety. The risk is disproportionately borne by cyclists themselves so it seems only reasonable to expect that drivers shoulder the penalty – including a DUI-type escalation (including loss of license). And perhaps it is time to take a look at the ‘strict liability’ laws as applied to the transportation context in some Northern European nations. ‘Strict liability’ in that context presumes that a cyclist riding in accord with the law has every right to expect to arrive at her destination safely. When that expectation is breached it is a matter serious enough to assign fault to the driver unless proven otherwise. We take a similar approach to pedestrians in the crosswalk: we don’t ask them to scurry across streets without benefit of stoplights and crosswalks.
Where does the current patchwork of state laws leave us? With fewer than half of safe passing laws identifying a minimum distance we clearly have our work cut out for us. The California Bicycle Coalition is on the job to get even a mediocre law passed. Let’s hope with our support they can finally make safe-passing a reality here too.
It is time that we view cyclists as a protected class with the commensurate infrastructure and laws to communicate to drivers today – and those learning to drive tomorrow – that it’s no longer open season on cyclists. But that’s no small task: few of our legislators are Long Beach’s Alan Lowenthal, the law’s sponsor. He stands in the forefront of those sensitive to cyclist needs in his capacity as California Senator from Long Beach (the bike-friendly community). Where are the others?