Is Cycling on the Shoulder Illegal?

Friday, October 2 by JerryFoster

Pt Beach Cyclist w Dog wrong way shoulderLet’s re-visit the great war between the executive branch (NJDOT) and the legislative (NJ Title 39) and judiciary (NJ Supreme Court Polzo v Essex County ruling) branches with regard to bicycling on the shoulder. Everybody does it, but is it legal?

NJDOT’s excellent 2011 Bicycling Manual recommends “riding on the right side of the road or on the shoulder.” NJDOT’s circa-1996 Introduction to Bicycle Facilities notes, “Advanced bicyclists are best served by bicycle compatible streets and highways which have been designed to accommodate shared use by bicycles and motor vehicles.” Paved shoulders are considered one form of bicycle compatible roadway.

So NJDOT encourages it, but does that make it legal? NJ Title 39:4-14.1 states: “Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle.”

Wait a minute, isn’t a bicycle a vehicle? Not in NJ – human-powered devices are specifically excluded from the legal definition of vehicle in 39:1-1: “”Vehicle” means every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or motorized bicycles.”

So what, it’s the same thing while riding in the shoulder, right? Not really, as the shoulder is specifically excluded from the “roadway” legal definition in 39:1-1: “”Roadway” means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.” So a cyclist riding in the shoulder would not be granted all the rights and responsibilities as the driver of a vehicle.

Aren’t we nitpicking? Motorists can’t legally drive in the shoulder anyway – cyclists can’t very well have the same rights and responsibilities as the driver of a vehicle while riding in the shoulder, as it would also be illegal.

Exactly! If a cyclist has the same rights/responsibilities to follow the rules of the road, s/he should only ride in the travel lane, not in the shoulder.

NJDOT’s lawyers, presuming to encourage only legal cycling behavior, may well point to the sentence structure of 39:4-14.1. It implies that every person riding a bicycle *outside* the roadway (e.g. on the shoulder) would not have the same rights/responsibilities as the driver of a vehicle, but that doesn’t make it illegal, since it’s not explicitly prohibited, like it is for drivers of a vehicle in 39:4-82.

Under this interpretation, it’s a cyclist’s choice whether to ride in the roadway, and be legally bound to follow all the rules of the road, or live free on the shoulder. Just think, no rules, no responsibilities – bike against traffic, blow the wrong way through stop signs, it’s all legal if you’re a cyclist on the shoulder. Under this interpretation, cyclists have an implicitly legal option to ride on the shoulder that isn’t offered to drivers of vehicles.

So which is it? Illegal or legally available w no rights/responsibilities? According to the NJ Supreme Court in Polzo v Essex County, “Bicyclists do not have special privileges on a roadway’s shoulder. Indeed, a bicycle rider is directed to ride on the furthest right hand side of the roadway, not on the roadway’s shoulder. The Motor Vehicle Code does not designate the roadway’s shoulder as a bicycle lane.”

So, as far as the law with regard to cyclists is concerned, the NJ Supremes ruled that a cyclist “is directed” to the roadway, “not on the roadway’s shoulder.”

The Polzo ruling was in 2012 – why is NJDOT still encouraging cyclists to ride on the shoulder? Shouldn’t shoulders with sufficient space be designated as bike lanes? What ever happened to the Complete Streets policy?

 

 

 

 

 

 

 

 

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Are Cyclists Riding on Shoulders At Their Own Risk?

Friday, August 29 by JerryFoster

OLYMPUS DIGITAL CAMERAThe NJ Supreme Court ruled in 2012 re the county’s potential liability for surface defects on the shoulder that a cyclist was riding on when she crashed and subsequently died (Polzo v Essex County). The ruling generated concern that cyclists riding on the shoulder may be treated differently by the legal system than those in a bike lane, but after reading the ruling carefully, I believe that concern is unfounded.

The court found:

1. The depression caused the tragic fatality.

2. “The Motor Vehicle Code provides that a “roadway” is the portion of highway generally used for vehicular travel; the “shoulder” borders the roadway and is for emergency use; and “vehicles” are not bicycles. Bicyclists are directed to ride as near to the right side of the roadway as practicable. While they may be inclined to ride on the shoulder, they have no special privileges if they do.”

3. “Public entities do not have the ability or resources to remove all dangers specific to bicycles.”

The ruling is clear to this point – cyclists riding on the road or shoulder may not expect a standard of care specific to bicycles. Cyclists may be dismayed by the NJ Motor Vehicle Code, but there is equality between the roadway and shoulder  re the standard of care. “No special privileges” does not mean “at your own risk.”

They then examined if the actual depression was a dangerous condition under the Tort Claim Act, noting “Under the TCA, a dangerous condition means a condition that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

They might have stayed with the logic that cyclists riding on the shoulder have no special privileges, because the law says shoulders are not part of the roadway, and only roadways are generally intended to be used by bicycles under the law (to the extent bicycles are an intended use even though they’re not vehicles).

But no, they said:

4. “Plaintiff offered no evidence that the shoulder was routinely used as a bicycle lane, which might implicate a different standard of care.”

So a shoulder that is “routinely used as a bicycle lane” might be expected to be held to a “different standard of care,” though presumably not to the extent as to “remove all dangers specific to bicycles.”

Since evidence of routine use may determine generally intended purpose and trigger a different standard of care, concern re a distinction between shoulders and bike lanes is unnecessary, in my not-a-lawyer view.

Perhaps the plaintiff’s lawyer should have introduced NJDOT standards for bicycle compatible shoulders as evidence of intended purpose, but in any case Essex County now has a Complete Streets policy that clarifies that bicycling is an intended purpose for county roads.

While cyclists are rightly concerned about the NJ Motor Vehicle Code, the suit was primarily about tort claims, which used the MVC only to determine intended purpose, and even finding none with regard to shoulders, ignored it in favor of a standard of evidence of routine use.

 

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