Are Cyclists Riding on Shoulders At Their Own Risk?

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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7 Responses to “Are Cyclists Riding on Shoulders At Their Own Risk?”

  1. Yes, Title 39 needs to be changed to grant bicycles special rights to use the shoulder but that would then allow NJDOT and other agencies to say once again that shoulders are acceptable bike facilities. I don’t want to say that bike lanes are the only way to make roadways bike compatible under Complete Streets policies but unfortunately NJ roadway agencies STILL don’t get designing for bicycles and will just cop-out with shoulders 90% of the time if they can.

  2. Jerry says:

    Thanks Andy,

    We’re stuck in a legal gray area – I view the proper course for advocates as:
    1. change the NJ motor vehicle code
    2. adopt Complete Streets policies for all entities responsible for road maintenance
    3. notify maintaining entities of biycle use on specific shoulders
    4. change the bike facility standards to comply with the law

    Anything else?

  3. (which this ruling reaffirms) Dang old computer!

  4. Oh and considering that bicyclists are not legally allowed to operate in the shoulder (which this ruling, I find it exceptionally disturbing that NJDOT routinely considers shoulders to be bicycle facilities as with the Manahawkin Bay Bridge and numerous other of their projects. But you read all that already in my blog article. Still, thanks again for getting this issue back out in front of the public eye. 🙂

  5. Jerry,

    My concern in the WBJ Blog article I wrote was not about agencies being immune to liability when a cyclist crashes due to the poor condition of the roadways but of cyclists not being granted ROW rights when they operated a bicycle in a shoulder, verses riding in bicycle or motor vehicle lane. Title 39 needs to updated clarifying that right to cyclists and cyclists alone (okay, maybe pedestrians too).

  6. Jerry says:

    Great points – given today’s technology, it should be relatively easy to establish routine use of a shoulder as a bike lane, just upload your route to Strava or some other online data repository, then notify the relevant authorities (municipal, county, state) that you cycle this route regularly and use the shoulder. DVRPC has a phone app at that would do the trick with minimum fuss, though the notice would still presumably have to come from the cyclist. That approach isn’t helpful after a tragedy, of course, unless a lot of others also use it and could be recruited to assist.

  7. SFB says:

    Jerry has persuaded me that the judgment does not specify that a shoulder can be maintained to a different standard of care to a bike lane. But I don’t agree that the judgement says that cyclists riding in a shoulder lane have the same legal protections as cyclists riding in a bike lane.

    The Polzo case was lost because the plaintiff failed to demonstrate that the county was on notice of a dangerous condition arising from the depression that caused the accident. The County had inspected the road 5 weeks previously and filled potholes, but even if they had found the depression, it would not have met their standard for filling. The plaintiff did not demonstrate an alternative standard that specified that a one-and-a-half inch depression could be classified as a dangerous condition. The court upheld the idea that the County could not be held responsible for every minor dip in the pavement.

    The big question is whether the judgement specifies that a shoulder can be held to a different standard of care than the general travel lane or a bike lane. Jerry is right that the case did not really turn on that point. The nature of the depression that caused the accident in this case was such that it would not have been filled even if it had been in the general travel lane. The ruling leaves open the question of whether a shoulder lane can be maintained differently to a general travel lane or bike lane. If the cause of the accident was a larger pothole or loose gravel- neither of which would be acceptable in a travel lane- then that question might have been more relevant, but that is entering the realm of the hypothetical. The main takeaway for cyclists should be: The law specifies that standards for road maintenance are based on use by cars, not bikes. Don’t expect an even road surface. Wherever you are riding, only ride in a way that if you hit a dip, you’ll be able to maintain control of your bicycle.

    The ruling raised the possibility that if the shoulder lane could be demonstrated to be in routine use as a bike lane, the judgment might have been different. But [speculation ahead] it is likely impossible to demonstrate ‘routine use’ of a shoulder lane as a bike lane, because (as the judgement reiterated) a shoulder lane is generally intended for emergency use, not as a travel lane. Shoulders therefore have no place or purpose as a facility for cyclists under ‘Complete Streets’. You can’t call a shoulder a cycle facility, because it isn’t one.

    Setting aside the question about standard of maintenance, which I would argue is not clearly resolved by the Polzo ruling, cyclists riding in shoulders definitely do not have the same legal rights as cyclists riding in bike lanes. If you are riding in a bike lane, you have right of way. That is not the case in a shoulder lane, because you’re not supposed to be riding there. (It’s intended for emergency use.) This seemingly technical difference is very important, because if you get in an accident with a car while riding in a shoulder lane, there is a good chance that you, as the cyclist, will be held at fault. Consider this real-life example:

    In summary, Polzo shouldn’t be the primary basis for deciding whether to stripe shoulders or bike lanes. The question of standard of care for surface defects is debatable, but regardless of that, NJ motor code makes very clear that a shoulder is not for travel purposes.



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