New Study Looks At Effectiveness Of 3 Foot Passing Laws

A new study on the effectiveness of bicycle safety legislation in many states nationwide reveals that three foot passing laws are viewed by many as a "vital tool to increase bicycle safety."  However, the study also laments difficulties involved in enforcement.

The study, The 3 ft. Law:  Lessons Learned from a National Analysis of State Policies and Expert Interviews, was created by the Rutgers Edward J. Bloustein School of Planning and Public Policy.  It offers a survey of the experiences of 20 states that have 3 foot passing laws in place, and considers the pros and cons of the laws with regard to its contribution to an increase in cycling safety.  These laws mandate that drivers give cyclists on roadways at least 3 feet of space when passing.  In the end, the study is short on data demonstrating the effectiveness of the laws in increasing cycling safety.  It provides a lot of anecdotal "evidence" from bicycle advocates nationwide who tout the provisions as effective tools for educating the motoring public about the rights of cyclists.  It also notes that the laws are part of a growing fabric of policy adding legitimacy to the bicycle as a practical transportation tool.  On the other hand, the study gives a lot of space to the argument that the laws are unenforceable and of little real world consequence.  Here is a link to the full study.

The Rutgers team focuses on how the 3 foot passing statutes are used, and not used, by law enforcement nationwide.  It notes that one jurisdiction briefly set up a sting to catch motorists violating bicyclists' space, but mostly describes police officers as generally unable to consistently enforce the laws.  Sadly, the study completely neglects the role the 3 foot passing laws may pay in the civil justice context.  For our firm, and others focused on representing injured cyclists, the laws are strong, sharp arrows in our quivers to use to go after drivers who harm cyclists.  In negotiating with auto insurance carriers and their attorneys we routinely cite the 3 foot laws to demonstrate a driver's negligence.

Just law week, I represented a client at an arbitration hearing in which I cited Illinois's 3 foot law.  This particular arbitration hearing was, in essence, a mini-trial in which witnesses were called and interrogated and both sides' attorneys provided opening and closing statements.  The case involved a female bicyclist who was struck by the front quarter panel of a vehicle whose driver passed too closely on Wells Street in Chicago's Loop, a notoriously narrow street with menacing pillars on both sides which support elevated train ("El") tracks.  The defense argued that the cyclist was reckless for coming too close to the vehicle.  However, citing the 3 foot passing law, I was able to effectively demonstrate that it was the driver who failed to give the cyclist the space she was entitled too under the law.  The panel found the driver was principally negligent and provided an award in the cyclist's favor.  (They found that the cyclist was, to a small extent, contributorily negligent, but that finding served only to minimally reduce the award, rather than to preclude it altogether.) It was a fair result.

Bicycle advocates often focus only on the criminal side of law enforcement.  In my experience, the the ability of the civil justice system to provide both compensation for the individual cyclist's harms and losses, and advocacy for cycling in general is too often overlooked by bicycling supports.  I can only guess as to why.  I fear that decades of negative media coverage about personal injury lawsuits have cast our civil justice system as merely a crass money making enterprise for greedy lawyers with ruby pinky rings.  This caricature is unfair.  The work we do can, and I believe does, have a positive broad effect.  Suing someone for passing too closely to a cyclist and causing harm, or for dooring a cyclist, can have a wide social effect.  Not only is the driver being sued likely to be more careful in the future, to the extent that driver spreads the word about his or her experience with the civil justice system, the people they know are put on notice to act more carefully around cyclists.

Trucking Company Pays For Violating Illinois' Three Foot Passing Law

I am often asked whether a driver has to actually strike a cyclist to be held liable for injuries caused in a near miss situation.  For example, must a driver compensate a cyclist who successfully evades the motorist's dangerous conduct, whether that be opening a door into the rider's path or passing too closely.  The answer is, yes, the driver may be responsible for the harm caused by his or her negligent driving even if there is no actual contact.  Why should the driver get a free pass just because the bicyclist took effective evasive action, i.e. by swerving or stopping?  However, the lack of contact between car and bicycle can create evidence problems.  When there is no contact it may be more challenging to prove that the driver's conduct actually caused the bicyclist's injury.  Proving a casual connection between the driver's negligent action and the injury sustained by the cyclist is a vital part of every bicycle injury case.  Inevitably the driver will assert that (1) he or she did nothing wrong, and (2) the bicyclist overreacted and crashed on their own.  Furthermore, the burden of proving the casual connection between the driver's conduct and the harm is a burden borne by the injury victim. 

Last week our firm distributed settlement funds that we achieved for a client in a case that highlights the challenges that may arise from a near miss situation.  The following account originally appeared on Jim Freeman's blog:

On September 12, 2009, Mr. Parish and a friend were riding their bicycles through Carlyle, Illinois.  They were participants in a ride organized by the Trenton Police Department.  The route for the ride took Mr. Parish eastbound on Franklin Street through downtown Carlyle.  In the area of the accident Franklin street has one lane of travel in each direction with no shoulder or parking on either side.  As the two approached 7th Street Mr. Parish heard his friend, who was riding in front, yell, "Truck!"  Mr. Parish looked back to see a semi tractor-trailer emblazoned with the familiar "Allied Van Lines" logo bearing down on the two cyclists from behind. 

The semi did not appear to move over at all to allow space while overtaking the cyclists.  Mr. Parish and his fellow cyclist moved as close to the curb as possible.  The Allied truck passed them at about 35 mph within 18 inches, in violation of the Illinois 3 foot passing law.  Somehow, while the two cyclists were attempting to get out of the way of the passing semi, they ran into one another, causing Mr. Parish to fall and break his leg.  Admittedly, there was never any contact between the cyclists and the truck. 

The truck continued eastbound without stopping.  The driver was never identified, and the subject truck was never found.  No witnesses were able to obtain a license plate or identifying number from the truck, although Mr. Parish did notice numbers on the door where the truck's DOT number would have been. 

We brought suit on behalf of Mr. Parish.  We filed our case in DuPage County where Allied Van Lines is headquartered.

After all evidence had been disclosed and all witness statements had been taken, Allied Van Lines brought a motion to dismiss claiming that they were not liable for Mr. Parish's injuries.  In support of their motion Allied pointed out that they did not employ any drivers, nor did they own any trucks.  That was true.  Allied Van Lines is a sort of umbrella corporation.  It contracts with moving companies who own trucks and employ drivers.  When Allied contracts with a company they funnel business to the company and they allow the company to use Allied's logo. 

Illinois law dictates that a commercial truck bearing the logo and US-DOT number of a corporation is operating pursuant to the corporation's authority, and therefore, the corporation is vicariously liable for the driver's negligence. Because of this law, we argued that identification of the driver, ownership of the truck, and actual contact were all irrelevant.  We argued that the only relevant question before the court was whether or not there was a question of material fact as to whether or not the subject truck bore the Allied Van Lines logo and US DOT license number. 

The Court agreed with us and denied Allied's motion.  In order to avoid the danger of trying a hit-and-run case without so much as a single witness to refute Mr. Parish's version of the events, Allied agreed to settle the case for $130,000.00. 

A Bicyclist Anti-Harassment Bill With Some Real Firepower

Bicyclists:  You want a law that protects you that actually has some teeth?  Well, check out what is going on in Washington D.C.  On November 29th, the Assault of Bicyclists Prevention Act made its way through the city council's judiciary committee on its way to the full council for consideration.  The bill was drafted to "create a civil cause of action for a person who while riding a bicycle is the victim of an intentional assault, injury, or harassment or the threat of assault, injury or harassment, and to provide for civil penalties, punitive damages, and attorney's fees."  Specifically, the proposed bill states as follows:

Irrespective of any criminal prosecution or the result of a criminal prosecution, a person who while riding a bicycle is intentionally physically assaulted or otherwise intentionally injured; threatened with physical assault or injury, whether by words, a vehicle, body part of another, or other object; or intentionally distracted, or the attempt thereof, shall have a civil cause of action in a court of competent jurisdiction for appropriate relief, which shall include: 

(1)  An injunction; 

(2)  Actual damages with regard to each such violation, or up to 3 times the amount of the actual damages or $1,000, whichever is greater; 

(3)  Punitive damages in an amount to be determined by a jury or a court sitting without a jury; and 

(4)  Reasonable attorney's fees and costs.

The bill also states that the remedies prescribed "shall be in addition to all other remedies provided by law" which already exist.

This bazooka of a bill was proposed last year after a D.C. area bicyclist recorded himself being harassed by the driver of a pickup truck who knocked him over.  The cyclist and the cycling community at large were frustrated by the lack of any real legal remedy to be pursued against the driver since no serious injuries were sustained due to the assault.

Illinois and the City of Chicago passed bicyclist anti-harassment laws last year enforcing the so-called 3 foot rule.  But those measures are flaccid compared to the proposed D.C. law.  The Illinois statute states,

The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual. 

A person driving a motor vehicle shall not, in a reckless manner, drive the motor vehicle unnecessarily close to, toward, or near a bicyclist, pedestrian, or a person riding a horse or driving an animal drawn vehicle. 

Every person convicted [under] this Section shall be guilty of a Class A misdemeanor if the violation does not result in great bodily harm or permanent disability or disfigurement to another. If the violation results in great bodily harm or permanent disability or disfigurement to another, the person shall be guilty of a Class 3 felony.

625 ILCS 5/11-703 

The Chicago ordinance states,

The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual.

9-36-010 

Any person who violates . . . section 9-36-010 . . . of this Code, shall be subject to (i) a penalty of $150.00 or, (ii) if such violation causes a collision between a motor vehicle and a bicycle, a penalty of $500.00, for each offense.

9-4-025 

The differences are not small.  Imagine you are harassed or assaulted by a driver in Illinois but not seriously injured.  Assuming you can get a police officer's attention, the driver is subject to a small penalty. Moreover, you will be left to your own devices with regard to convincing the local prosecutor to pursue the matter.  If the D.C. bill becomes law, cyclists there will have the ammunition needed to hire a lawyer to pursue the matter aggressively, and really hit the offending driver where it hurts.

Thanks to Washington D.C. attorney Michael Forster who made me aware of the D.C. bill via Twitter.