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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