Fundamental Change Is Needed To Reduce Driver, Biker Conflict

There is a lot of anger and hostility out there.  I am not referring to the political divisiveness of the nation - although the description applies - but to Illinois's roadways.  Drivers and bicyclists seem perpetually angry at each other, particularly when they meet on congested streets.  Bicyclists become hostile toward drivers for a perceived lack of empathy regarding the dangers faced while riding.  Drivers get steamed at the perceived arrogance and rule flouting by cyclists.  Both often feel that the other is just in the way.  Sadly, each too often view of the other not as a person, but rather as an impediment to their desire to get where they are going.  Why do we too often view our fellow travelers with such suspicion and distain?

The problem is the system, the infrastructure, that the driver and cyclist alike are trying to navigate.  They are each trying to make their way along the same space, yet by very different means and with different expectations.  The motor vehicle is heavy, mechanically powered and slow to maneuver through tight spaces.  The bicycle is light, human powered, quick and easier to maneuver through tight spaces.  In either instance, the operator hopes and expects to travel to their destination without unnecessary hindrance or obstruction.  Place the two in the same space and one or both are bound to have their hopes and expectations dashed, or, worse, see their bodies injured or their property damaged.

A dozen years ago, writer Charles Montgomery wrote an interesting and influential article in Momentum Magazine entitled, Bike Rage.  He wrote,

 “…the driving experience primes car drivers for meltdowns.

They are conditioned by popular culture to see cars as symbols of freedom, yet city driving is a slow-motion trap that subjects drivers to constant restrictions on their movement. Drivers are thwarted from enjoying the promise of motion by traffic lights, by congestion – and yes, by cyclists – and they suffer the natural but impossible desire to escape and move forward…”

He added,

 “…road rage is a symptom of the corrosive effect that modern commuting has on urban culture. Aggressive streets are not just dangerous, they change the way we feel and the way we treat each other, even when we’re not commuting.

… the problem is that city planners have mixed bikes and cars together in ways that offer little certainty about how each should operate, and lots of chances for conflict. Cyclists feel threatened in traffic, just like drivers. Many of us feel hard done by and under attack. I sure do. The average arterial road is an engine of conflict."

This second point resonates strongly with me.  My city, Chicago, has spent quite a lot of money and effort building bicycle lanes.  I use them regularly and I am glad they are there.  However, too many are poorly designed.  When city planners intentionally design streets so that public buses must enter bike lanes to pick up passengers, danger, fear and frustration for the biker and bus driver alike are the natural consequences.  When designated bike lanes on narrow streets are not protected from physical encroachment by motor vehicles with barriers, not just paint, anxiety and injury become too common.  When bicycle infrastructure suddenly ends leaving a confusing and treacherous set of options the bicyclist often feels as if their city does not care about their safety.  When municipal crews fail to survey road construction projects with an eye toward bicycle accommodation, the bicyclist and driver both end up seeing red. 

After years of incremental change to biking infrastructure in the United States there is still far too much regular conflict between drivers and bicyclists.  As a daily city biker and attorney whose practice focuses on representing bicyclists injured on the road, I am in a unique position to observe this phenomenon.  The conflicts between drivers and bicyclists are not going away.  The injuries and deaths continue.  Despite the Vision Zero campaign touted by the City of Chicago, 2020 has so far seen the death of eight bicyclists on our streets, an increase from the average yearly number of deaths between 2012 and 2016 of 5.8, according to Streetsblog.  This is entirely unnecessary.  The City of Chicago's own 2012 Bicycle Crash Analysis states, "with proper street design and behavior change amongst road users, the overwhelming majority of bicycle crashes are preventable."

It has become apparent that fundamental change regarding street design is necessary.   Bike lanes consisting simply of painted lines here and there are not acceptable.  Paint is not protection.  Paint on the street strikes me as a fingers-crossed type of approach to reducing the sometimes deadly conflicts between motor vehicles and bikes.  The era of just hoping that drivers and bicyclists work it out on the road must end, immediately.  2020 has been a year of  profound change.  In aspects of life big and little, many are awakening to the need to fix what has been broken for a long time.  Urban transportation design is one of those broken things.  What drivers and bicyclists need is space.  Specifically, we need bike lanes that are part of real networks that take us places we want or need to go.  Cities should stop designing bikes lanes that just end and instead create safe bike lanes that lead into other safe bike lanes.  We need bike lanes that offer real protection in the form of jersey barriers, planters and the like.  We need streets that belong to bikes only, that are closed to motor vehicles.  Similarly, other streets should be closed to bicycles so that drivers also have places to call there own where they can feel unobstructed by more vulnerable road users like cyclists.  Bicyclists need changes in the law too.  Illinois needs a stop as yield statute that allows people on bikes to yield at stop signs and lights rather than come unnecessarily to a full stop.  This is a year for new thinking about so much.  How we interact with each other on our streets should be on that list.

City of Chicago Fails In Attempt to Immunize Itself From Responsibility For Injuries Caused by Bike Lane Hazards

In a hearing last week in the Circuit Court of Cook County the City of Chicago sought to have all of the bicycle lanes installed throughout the City declared "recreational facilities."  The effect of this creative legal maneuver would have been to immunize the municipality for injuries to bicyclists caused by the City's failure to keep its bike lanes safe for riders.

The matter arose from a lawsuit filed against the City where a Chicago bicyclist was . . . [Read more.]

Illinois Municipalities May Be Held Responsible Where Snow Removal Forces Cyclists and Pedestrians Into The Street

Courtesy TheWashCycle

Illinois municipalities may be held liable for injuries to pedestrians and bicyclists forced into the street by snow piled onto sidewalks and bike lanes by city plows, according to the Illinois Appellate Court.  The ruling in Pattullo-Banks v. The City of Park Ridge, 2104 Ill App (1st) 132852 was issued on September 4th and overturned an order entered by Cook County Judge Lynn Egan dismissing the plaintiff's lawsuit against the city.

In her lawsuit, Lorraine Pattullo-Banks alleged that as she walked on a sidewalk along Touhy Avenue in Park Ridge, Illinois she encountered a pile  of snow and ice that obstructed her path.  Her claim alleged that city snow plows created the pile when they moved snow which had accumulated on the street onto the sidewalk.  In order to reach her destination she had to walk into the street, at a place where there was no crosswalk, and was struck by a car.  Her lawsuit against the city of Park Ridge alleged that in creating the sidewalk obstruction the municipality violated the duty it owed to her and others to maintain its property in a reasonably safe condition.  The municipality sought dismissal of the lawsuit under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act which provides that local municipalities only owe a duty to intended and permitted users to keep its property reasonably safe.  Ms. Pattullo-Banks was struck and injured in the street, outside of a crosswalk, a place that is not intended for use by pedestrians.  It is well established in Illinois that pedestrians are not intended users of the street outside of a crosswalk.  But, Ms. Pattullo-Banks argued, the dangerous condition of which she complained was not in the street but on the sidewalk, certainly a place intended for use by pedestrians.  Given that context Park Ridge should not be able to avail itself of the protections of the Tort Immunity Act.  The appellate court agree with her and reinstated her case.  In so doing the Court stated:

[Ms.] Pattullo-Banks' status as an intended or permitted user -- and whether immunity applies -- must be determined based on the property where [the] alleged breach of duty occurred (the sidewalk), not the property where the injury occurred (the street), and not the mechanism of injury (i.e., whether she was struck by an automobile or tripped on a defect).

It is important to note that the Court did not rule on whether the city of Park Ridge acted negligently in creating the obstruction. It merely held that the plaintiff, Ms. Pattullo-Banks, had a right to have a jury consider that issue.  Park Ridge was not entitled to have the case dismissed before a jury could consider the facts.

The implications of this ruling are significant.  Where a municipality in Illinois clears snow in the street at the expense of sidewalk users, forcing them to face danger by entering the roadway instead, it may be held liable where injury results.  Also, while the Pattullo-Banks case involved a pedestrian, there is no reason to believe that the Court's reasoning would not also apply to a bicyclist. For example, a municipality may be held liable where a cyclist is injured after being forced to exit a bike lane and enter the street due to the piling of snow by city plows clearing way for motor vehicle traffic.  Last winter, a particularly snowy one, the City of Chicago frequently moved snow from Kinzie Street into the bike lane near the Merchandise Mart often forcing cyclists out of the lane and into the street.

Municipalities in Illinois are now on notice that snow removal is not for motor vehicles, but for all people.  If they favor cars and trucks at the expense of pedestrians and cyclists they may be held responsible where harm results. 

An Extreme (and funny) View of Segregated Cycling

So, you want segregated cycling?  Well, here you go;-)

(Borrowed from Quickrelease.tv)

Video Demonstrates Bike Lane Deficiencies

Regular readers of this blog probably recognize that I am a big fan of bike lanes.  Giving bicyclists their own clearly defined space on the road encourages more people to ride.  More people on bikes means more motorists get used to seeing cyclists.  That increased awareness should decrease the number of car vs. bicycle mishaps.  In Chicago, bicyclists do not have to ride in a bike lane.  It is legal to ride with the rest of traffic most of the time.  Still, if you are involved in a crash with a motor vehicle you are probably better off having been in a bike lane.  As sure as the day is long, in a bike accident case the defendant motorist will claim I didn't see him/her, I couldn't see him/her, I never expected him/her, or some variation of the theme that that the cyclist popped up out of nowhere.  However, this defense is a much harder sell to a jury if the incident occurred in a bike lane.  The presence of a clearly marked bike lane makes the presence of bicyclists foreseeable.  A bike lane puts the motorist on notice that caution must be used to look for cyclists in the area.

Notwithstanding the benefits of bike lanes, it is wise to consider their deficiencies.  Riding in a bike lane does not equate to risk free cycling.  Far from it. The video below demonstrates bike lane short comings in a  thoughtful way that the daily urban cyclist can appreciate:



Thanks to Joe TV for bringing this video to my attention over on the Chainlink.

Illinois Municipalities' Overreaction to Liability Concerns Slows Progress On Bicycle Safe Roadways

America's roads were paved for the benefit and at the behest of bicyclists. "The Good Roads Movement was founded in May 1880, when bicycle enthusiasts, riding clubs and manufacturers met . . . to support the burgeoning use of bicycles." The movement is credited with pushing for paved roads before the reign of the automobile. In 1929, one of the founders of the movement, Horatio Earle, stated in his autobiography, "I often hear now-a-days, the automobile instigated good roads; that the automobile is the parent of good roads. Well, the truth is, the bicycle is the father of the good roads movement in this country. . . All these battles were won and the bicyclist was accorded equal rights with other users of highways and streets." Notwithstanding this history, twelve years ago the Illinois Supreme Court declared that streets and roads in our state are for motorized traffic, not bicycles. In its now infamous decision, Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998), the Court held that bicyclists are permitted but not intended users of Illinois roadways, unless the road at issue is specifically designated for bike traffic, e.g. with signs, markings, etc. Unless a roadway is so designated, a local municipality is completely immune from liability for a bicyclist's injuries caused by roadway hazards. The Boub decision is an anomaly. Nowhere else in the United States has a state high court declared that bicyclists are not the intended users of the very paved streets for which their two-wheeling forebearers advocated. The fallout from the Court's decision has gone beyond merely barring individual bicyclists from pursuing justice. It has slowed progressive attempts to bring bicycle safe roads and streets to communities in Illinois. This broadly felt negative impact was predicted by one of the Court's own members. Justice Heiple, in his dissent from the majority holding in Boub, forcefully offered a vision into the future shaped by the misguided ruling of his brethren:

The principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs.

Boub, 183 Ill.2d at 539-540 (J. Heiple dissenting).

Sadly, Justice Heiple was right.

Some suburban municipalities in the Chicagoland area are resistant to creating bicycle lanes in their districts out of fear that doing so could expose them to liability under Boub, according to John O'Neal, Transportation Planner for the Chicago Metropolitan Agency for Planning (CMAP). John is one of the folks at CMAP responsible for developing a comprehensive regional transportation plan to include the counties of Cook, DuPage, Kane, Kendall, Lake, McHenry and Will. Part of the plan is to include roadway bicycle lanes. Though some municipalities in these counties have created designated bike lanes -- Chicago being the most obvious example -- John tells me there has been resistance from others and that the holding in Boub has been cited explicitly. The effect of that decision has been felt in other parts of the state as well. According to Ed Barsotti, Executive Director of the League of Illinois Bicyclists, "While we’ve seen quite a few towns (especially in urbanized areas) moving ahead in recent years, plenty of others are still stalled by the liability disincentive. In rural areas, the vast majority of county highway departments and townships are completely scared by the issue."

How great is the liability threat to a municipality anyway? The short answer is not very. I am a personal injury lawyer who represents accident victims in litigation, so I am not in the business of providing municipalities and their insurers defense strategy guidelines. However, one must face facts: It is awfully difficult for a victim to successfully pursue a claim against a local governmental entity for injuries caused by a roadway hazard even absent complete immunity protection. The obstacles are set forth in section 10/3-102 of the Local Governmental and Governmental Employees Tort Immunity Act. That law creates several substantial hurdles that must be overcome by a bicyclist injured due to a public roadway hazard. When suing a governmental entity the injured bicyclist must prove that:

1. The municipality was put on notice of the dangerous condition. The municipality had to know that a hazard existed within a reasonably adequate period of time for a fix to be implemented. However, if the municipality had a reasonably adequate inspection system in place for detecting bike lane hazards, and used due care in maintaining and operating that system, yet failed to detect the hazard, the municipality will be deemed not to have had notice.
2. The roadway condition that is alleged to have caused the injury was indeed dangerous.
3. The municipality was negligent in maintaining the bike lane.

Additionally, the bicyclist will likely have to defend against the notion that he or she was contributorily negligent in causing his or her injury.

Consider the following hypothetical: Smallville, Illinois has created a marked bike lane along the right side of its main thoroughfare. It has also implemented a program whereby a road crew inspects the entire distance of the bike lane on a monthly basis for hazards such as tree branches, garbage, holes, large cracks and the like. If a hazard is observed it is remedied within a reasonable period of time. One pleasant afternoon Sally Triathlete is riding her bicycle within a section of Smallville's bike lane. She is training for an upcoming competition so she is pushing herself, pedaling at a very high rate of speed. The day before Sally's training run Smallville's road inspection crew inspected the bike lane and saw nothing of note. The crew documented its inspection. That evening a violent storm blew through Smallville knocking a large tree branch into to the bike lane. During Sally's vigorous ride her front wheel struck the branch and she was propelled off her bicycle suffering serious injury. She subsequently hired an attorney wanting to sue the municipality for failing to properly maintain the bicycle lane. Tough case; one in which the prospect of success is low. Given the existence of a reasonable inspection system and the relatively short period of time between the creation of the hazard (the tree branch falling) and the collision between it and Sally's bike, Smallville will likely be found not to have had notice of the danger and likely will not be held liable for Sally's injury. Also, there will likely be serious questions raised about Sally's own negligence, particularly the speed at which she was traveling. I would frankly anticipate Sally having a difficult time finding an attorney willing to take her case.

If a municipality provides a service or amenity to its residents, then it must do so with care to avoid injury. However, both the Illinois legislature and Illinois' courts have consistently recognized the need to protect municipalities from litigation, lest they become financially overwhelmed by insurance premiums and the cost to defend against lawsuits. Attorney's who represent injury victims tend to only have success against local municipalities where injury is caused by the most brazen betrayal of the public trust. Municipalities in Illinois who decline to make their roadways safe for bicycle traffic for fear of liability following Boub are overreacting. Worse, their leaders are failing to protect the most vulnerable users of the roads, children and adults traveling by bicycle.