A Tale of Two Bicycles
In Search of the Law

     It was a beautiful day along the Columbia River in late January, about a year ago. Blue skies, cool temperatures, and even the stiff breeze coming out of the gorge couldn’t change the fact that it was a good day for a bike ride. Two friends from northeast Portland decided to take their first ride of the season, going north on 33rd Avenue towards Marine Drive, then east on the paved path that starts under 33rd, heads east, crosses Marine Drive, and then meanders along the Columbia River towards the I-205 bridge.

     Meanwhile, a bike club from Washington was headed in the other direction, having crossed the I-205 bridge, planning to go west to the I-5 bridge, completing a loop back to Vancouver. All cyclists were having a fun, invigorating ride. “It was the best of times,” (with apologies to Dickens).

     Suddenly, disaster struck. One of the Washington riders was passing a fellow club member with the tailwind at his back, and collided head-on with one of the Portland riders headed east in a horrendous crash. Both bikers went down with significant injuries, and both headed to the hospital in an ambulance. So suddenly, “it was the worst of times.”

     Flash forward to April of this year, and this bike accident case goes to trial before the Honorable Judge Bearden, with each cyclist claiming to have given the other more than enough room to pass. Believe it or not, then the major issue at trial that the court and counsel struggled with was “What law applies on this beautiful paved path?” On behalf of the defense, I thought the issue was clear.

ORS 814.400 states:

1. Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways, vehicle equipment and abandoned vehicles, except:
   1. Those provisions which by their very nature can have no application.
   2. When otherwise specifically provided under the vehicle code.
2. Subject to the provisions of subsection (1) of this section:
   1. A bicycle is a vehicle for purposes of the vehicle code: and
   2. When the term “vehicle” is used it shall be deemed applicable to bicycles.
3. The provisions of the vehicle code relating to the operation of bicycles do not relieve bicyclists or motorists from the duty to exercise due care.

     The question then became “what exactly is a public way?” There does not appear to be a separate definition of “public way” in the Oregon Revised Statutes, but the phrase is used in several statutes including ORS 801.160. That statute says ‘“Bike Path’ means a public way, not part of a highway, that is designated by official signs or marking for use by persons riding bicycles except as otherwise specifically provided for by law.” Given that there were lots of official bike signs and nothing providing otherwise, I argued the path was, by definition, a “Bike Path”.

     It would also appear that the bike pathway would not be considered a sidewalk which is basically defined in ORS 801.485 as an area adjacent to a Highway, and this path clearly is not.

     Since a bike path is a “public way,” ORS. 814.400 makes the vehicular code applicable. Thus, ORS 811.300 (failure to drive to the right of an approaching vehicle), ORS 811.100 (the basic speed rule), and most of the rest of the vehicular code were applicable as well, I argued. This would then provide the basis for favorable instructions about not passing when there is not room to do so, the clear requirement to keep to the right, etc.

     Plaintiff’s counsel took the position that this is essentially a sidewalk, and while everyone has common law duties, the rules of the road don’t apply. He pointed out there are pedestrians, skateboarders, roller skaters, fishermen, and all kinds of others which use this multi-use path. He also quoted from the well known bicycle advocate, and very good Oregon trial lawyer, Ray Thomas, who appeared to be the only person who had written on this issue. His writing suggested that this area was a multi-use path and that the rules that apply to a bicycle path are the same rules that apply to a sidewalk. See Ray Thomas’s article “Multi-Use Paths and the Rights of Bicycle Riders.”

     There is a certain amount of irony here because both sides attempted to hire Ray Thomas as an expert, and neither side was successful.

     After protracted arguments on both sides, the judge indicated that he was troubled that the law had not stayed current with development of multi-use paths. In fact, he noted that there is no definition in the statutes of a multi-use path. The judge himself had experienced the multi-use nature of this path, having bicycled on the path and seen the walkers, fisherman, etc. I tried to point out to the court that, as confusing as the law might be for a multi-use path, if a pedestrian, or a skateboarder, or a roller skater was somehow involved in the accident, it should not prevent the rules of the road from applying in this case, because no pedestrians were involved; it was a straight bicyclist on bicyclist accident, both of whom, I argued, were subject to the rules of the road.

     Ultimately, relying on Ray Thomas, instead of the more normal modes of statutory construction analysis, the court decided that the rules of the road did not apply and only gave common law instructions on lookout and control, and allowed each side to argue pretty much anything they wanted in terms of where people were supposed to be.

      In the end, the jury decided in my client’s favor, but the legal issue of what law applies on a multi-use path needs to be resolved. Not only for bicyclists, for whom I continue to believe the law is clear, but for the myriad of other users for which the law is muddy at best. Must a fisherman crossing the path yield to the skateboarder or a bike? At this point no one knows for sure.

     By way of footnote, Ray Thomas did call me after this case. When I walked him through my statutory analysis, he indicated I may well be right and he would be taking a closer look at that and decide whether or not to correct his prior writings. More importantly, we both agreed that the legislature needs to do something specific about what rules apply on multi-use paths.

     If you have any questions, please feel free to contact the author, Rudy R. Lachenmeier by phone at (503) 768-9600, or by email at rudy@lerlaw.com.

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