Friday, June 14, 2013

It Is Crystal Clear, Chicago Cyclists May Pass Slower Traffic On The Right Thanks To New City Ordinance

It is now crystal clear that in Chicago bicyclists may pass slowed or standing motor vehicles on the right.  A section of the 2013 Bicycle Safety Ordinance proposed by Mayor Rahm Emanuel on May 8th and passed by the City Council on June 5th clarifies the matter.  It will become law when signed by the Mayor, which is expected to happen soon.

The section states:
Any bicyclist upon a roadway is permitted to pass on the right side of a slower-moving or standing vehicle or bicycle, but must exercise due care when doing so.
9-52-040(d)

This amendment to the Code clears up some confusion over whether a section of the Illinois Motor Vehicle Code, allowing for right-sided passing only when eight feet of space was available in which to do so, applied to bicyclists.  Some Chicago police officers were ticketing cyclists for passing cars and trucks on the right in the absence of eight feet of space, rarely available in our congested city streets.  I noted in a previous blog post that the state vehicle code's eight foot rule only applied to two-wheeled motor vehicles such as motorcycles and scooters.  Nevertheless, confusion persisted until the Mayor's office, with assistance from the Active Transportation Alliance, stepped in to offer more definition to the law.

Though the eight foot rule is a controversy no more, it is important to note that cyclists do not have carte blanche to pass vehicles on the right.  They must, "exercise due care when doing so."  This is legalese for, you can do it only when it is safe.  Just because you have the ends of your handlebars shaved down to nubs to thread the tightest spaces between cars does not mean that you may do so legally.  Also, Chicago bicyclists must yield to pedestrians who have exited vehicles which have not pulled to the curb.  The second sentence of 9-52-040(d) states:
When approaching a vehicle which has discharged passengers from its right side, a bicyclist must either yield to those pedestrians or pass on the left.
In order to understand what a cyclist's responsibility is when a vehicle discharges a passenger from the vehicle's right side it is important to know how the language passed by the City Council came to be.  When the Mayor's office originally proposed the amendment, section 9-52-040(d) stated:
Any bicyclist upon a roadway is permitted to pass on the right side of a slower-moving or standing vehicle or bicycle, but must exercise due care when doing so.  When approaching a vehicle discharging passengers from its right side, a bicyclist must either yield to the pedestrians or pass on the left.
(emphasis added).

Apparently, the intent of the second sentence was to offer protection to bus passengers forced to alight from a bus that was not able to pull fully to the curb.  When the ordinance was proposed by the Mayor's office, the Active Transportation Alliance was nice enough to provide us with a copy.  When I read the second sentence I was concerned that, notwithstanding the drafters' reasonable intentions, the section could be used unfairly against a bicyclist doored from the left.  In particular, I imagined a taxi cab company, whose driver chose to discharge a passenger without pulling to the curb (required in Chicago), using the section to defend against a dooring claim brought by an injured bicyclist.  Those sorts of incidents happen a lot in Chicago.  One such incident happened to a client of ours whose story was told in a recent post on Streetsblog Chicago.  Once a passenger opens a car door, no matter how suddenly, the bicyclist must yield or swing around to the vehicle's left was how I imagined the ordinance would be interpreted.

When I expressed my concerns to Ron Burke, executive director of the Active Transportation Alliance, he was very responsive.  He wisely set up a meeting between CDOT, Active Trans and the City's law department to discuss the matter.  My law partner, Jim Freeman, and I were invited to the meeting and attended.  We proposed elimination of the second sentence altogether.  Stating that bicyclists had to pass with "due care" seemed like enough.  The City pressed for greater clarity, however, in a desire to make sure that pedestrians exiting a vehicle were protected from cyclists under the law.  Fair.  We proposed that the duty of the bicyclist to yield kick in not when the passenger is being discharged, but rather once the passenger had been discharged.  What's the difference?  An important one:  Under our proposal the bicyclist has the duty to yield once the passenger has completely exited the vehicle; not simply when the door was opened.  We felt this created a sharper line.  For the passenger to have completely exited the vehicle the door would have been opened for a long enough period of time for an approaching bicyclist to see and avoid it and the exiting passenger.  To be clear, drivers and passengers owe a duty to bicyclists to look before opening a door on the vehicle's the left and right.

I would like to express our very sincere thanks to CDOT, the City of Chicago and the Active Transportation Alliance for so thoughtfully addressing our concerns and for their commitment to protecting cyclists in our city.

Efforts are underway to clarify the Illinois Motor Vehicle Code itself with changes like those being initiated in Chicago expected soon.  More on that in a later post.  Stay tuned...

5 comments:

  1. Imaged should be imagined*

    Thank you for the background story. I'm going to link/excerpt this in my MBAC part 2 post next week.

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  2. I have a follow up question: so, if it's legal for cyclists to pass on the right, and traffic laws allow for passing on the left, does that mean weaving through stopped traffic when the vehicles are staggered to prevent safe passage on one side or another is now legal?

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  3. All road users, drivers and cyclists alike, have a duty to act reasonably under the circumstances. Sometimes that will mean passing on the right. Sometimes passing on the left will be the more appropriate, safer approach to a given situation. "Weaving" is an evocative word. To me it suggests playing a sort of game with stopped or slowed cars though I recognize that may not have been your intent. But you are not required under the law to deal with traffic robotically. What is legal and safe will change. Your approach in dealing with the circumstances hurled at you should always be the safest one available.

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