Advocates for motoring sometimes call for elimination of bicyclists or pedestrians from roadways, or for increased regulatory burdens to be placed on bicyclists (ostensibly to equal the expense of motoring regulations). Their argument often begins with the motoring-centric assumption that roads are for cars, and that because motoring on roadways is regulated as a privilege, then any use of roadways is also a privilege, and not a true right. Historically and legally speaking, however, this claim is inaccurate. Recognition of an individual’s basic right to travel on shared roads dates back thousands of years.
Roads evolved from unimproved footpaths and trails over five thousand years ago. Some roads were constructed and maintained by private landowners, and others by governments. The earliest challenges to public travel over these routes came from landowners or other local inhabitants who might extort money from travelers or block travel by force or physical obstruction. Public use of roads was compelling for access to water, food, and trade, for transport of goods and materials, and for military purposes. Across the world, laws evolved to define the rights and responsibilities of travelers and landowners.
Some of the first written descriptions of travel rights are found in second century BC Roman property laws that established a hierarchy of easements that prioritized pedestrian access over wagon passage. The Romans were prolific road builders, creating a network of durable paved highways that spanned most of Europe including England. While of strategic military importance to the Roman government, these roads were public ways permitted to all. Any act to block or hinder travel upon public roads was prohibited by Roman law. Within the city of Rome, traffic congestion became such a nuisance that Julius Caesar banned wheeled traffic in the city during most of the daytime.
The tradition of public passage, however, survived even in the dark ages. In the twelfth century, the seminal English law text Tractatus of Glanvil written for Henry II declared the legal status of the king’s highway and the public right to travel upon it.
The concept of right of way originated in English law at this time with a dual meaning: First, the right of the king to establish public roads across private properties, and second, the public’s right of passage on such ways. The common-law right to travel on public ways followed the colonists to North America.
In the late 1800s controversy erupted over a new type of vehicle that was speeding along rural roads and urban streets, occasionally frightening horses and pedestrians: the bicycle. Considered a nuisance by some non-bicyclists, cities and states enacted numerous bans on bicycle travel (for instance, Kentucky banned bicycles from most major roads). Numerous court cases involving bicyclists’ road rights resulted in inconsistent outcomes. In cases involving collisions, English and American courts eventually concluded that the rules of the road for carriages should apply equally to bicyclists. These rules prohibited speeding or otherwise operating in a manner dangerous to others.
Eventually the higher courts in the states would reach conclusions protecting the right to travel by bicycle on public roads. In Swift vs City of Topeka (1890) the Kansas Supreme Court stated:
“Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle . . . . This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen.”
In the case of the self-propelled automobile, however, the Kansas Supreme Court spoke too soon. In the 1890s, automobile travel was primarily a novelty for the wealthy, but motor traffic volumes and speeds grew quickly on public roads over the next thirty years. With popularization of motoring came a staggering epidemic of crash fatalities and injuries for pedestrians and vehicle operators. In response, cities across the country enacted new regulations on motoring ranging from licensing requirements to outright bans. Automobile organizations challenged the regulations in court based on right-to-travel grounds, and won many of the early cases. But as motoring’s death toll continued to increase each year, and government regulators made a stronger case that improper motoring violated the travel rights of others, the courts relented. By 1920, no court found the right to travel to be sufficient grounds to strike down a driver license requirement for motor vehicle use. For instance, in the federal case Hendrick v. Maryland 235 US 610 (1915):
“The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves . . . In the absence of national legislation covering the subject a State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — those moving in interstate commerce as well as others. And to this end it may require the registration of such vehicles and the licensing of their drivers . . . This is but an exercise of the police power uniformly recognized as belonging to the States and essential to the preservation of the health, safety and comfort of their citizens.”
Drivers who were charged with driving a motor vehicle without a license would continue to attempt a defense based on the right to travel, but to no avail. For instance, in State v. Davis (Missouri 1988):
“The state of Missouri, by making the licensing requirements in question, is not prohibiting Davis from expressing or practicing his religious beliefs or from traveling throughout this land. If he wishes, he may walk, ride a bicycle or horse…. He cannot, however, operate a motor vehicle on the public highways without … a valid operator’s license.”
The State v. Davis decision calls out the importance of walking and bicycling in supporting the right to travel. If driving a motor vehicle is an issued and revocable privilege, then it stands to reason that some other modes must remain in order to preserve the right to travel. Otherwise, only the privileged could continue to travel independently on the essential trips that people have been making for thousands of years.
Bicycle registration programs are often proposed and sometimes implemented to combat bicycle theft and to raise revenue. Most government-operated bicycle registration programs in the US fail due to high implementation costs, low participation and revenue, complications for bicyclists traveling between jurisdictions, and increased friction between police and low-income populations. Today, Hawaii is the only US state with a mandatory bicycle registration requirement, which succeeds primarily because it is implemented as an excise tax on new bikes at the point of sale, and also because out-of-state bicyclists cannot ride across the state’s border.
As a note, property taxes have historically been the revenue method for paying for roadways. The high costs of the construction and maintenance of roads due to motoring, compared to traditional human and animal powered means, led to the institution of a fuel tax. Although the first gas tax was instituted around 1932, dedication to highways and the Highway Trust Fund wasn’t in place until 1956. According to a 2015 report done by the US PIRG, the fuel tax today covers less than half the costs of maintaining and expanding roadways. The resulting shortfall is made up from other sources of tax revenue at the state and local levels, and is generated by drivers and non-drivers alike. Most communities elect to promote the public benefits of bicycling and walking rather than deter these activities by applying a usage tax.
Many US residents do not drive motor vehicles due to limitations of age, health, or economics, or simply by choice. Worldwide, motorists are a clear minority; people outnumber motor vehicles 7 to 1. In much of the world, the bicycle is the most popular vehicle choice for travel, essential for the mobility of people with modest incomes or in areas with a scarcity of space that can be dedicated for motoring (or even for parking). Promotion of motoring at the expense of bicycling and walking would repurpose our roads from public rights of way open to all users into specialized facilities reserved for the privileged.
The only roads legally prohibited to bicyclists and pedestrians in North Carolina are fully controlled access highways, aka freeways. Prohibition from such highways is acceptable only because the full control of access prohibits driveway access between the highways and the adjacent land; the adjacent properties are accessible by other roads that are not fully controlled access and therefore open to bicyclists. The prohibition from fully controlled access highways does not prevent pedestrians and bicyclists from reaching their destinations, but may sometimes require longer routes.
According to the Complete Streets policy adopted by the North Carolina Board of Transportation in July 2009, “[t]he North Carolina Department of Transportation, in its role as steward over the transportation infrastructure, is committed to providing an efficient multi-modal transportation network in North Carolina such that the access, mobility, and safety needs of motorists, transit users, bicyclists, and pedestrians of all ages and abilities are safely accommodated.” The NCDOT Roadway Design Manual says “It is the responsibility of the Section Engineers and Project Engineers to be assured that all plans, specifications, and estimates (PS&E’s) for federal-aid projects conform to the design criteria in the “A Policy on Geometric Design of Highways and Streets” (2011).” That document, also known as the AASHTO Green Book, states: “The bicycle should also be considered a design vehicle where bicycle use is allowed.” It should be clear that bicyclists are intended users of all roadways in North Carolina except fully controlled access highways (freeways), and that it is our government’s job to facilitate this travel, not deter it.
In addition to the important provision that allows vehicles to cross the solid center line to pass slower moving vehicles (a big win for the BWNC and the NC bicycling community), House Bill 959: DOT Proposed Legislative Changes modifies other bicycle safety laws. These new laws will become effective today, October 1st, 2016:
- Allowing vehicles to pass slower-moving bicycles and mopeds in a no-passing zone when all safety requirements are met (and with a very good four foot distance specified- read more here)
- Legalizing the commonly-used right-hand turn signal for right turns (read here)
- Extending motorcyclists’ legal protection as vulnerable road users to bicyclists (read here)
- Updating requirements for a rear light or reflective gear on bicyclists at night (we recommend a rear light – read here for BWNC specific recommendations and here for new rear light requirement)
- Revising the definitions of autocycles and mopeds, and including a new definition for electric assisted bicycles (read here)
Viewers can read the full version of the bill here. BWNC supports the bike safety modifications in the bill and believes that implementation will add to the safety of bicyclists and motorists on public roadways. Thank you all for your comments last December 2015 on NCDOT’s report on the House Bill 232 Bike Safety Law Study report. We believe that the legislature included only the non-controversial parts of NCDOT’s recommendations because all of you spoke up and helped BWNC communicate our position and concerns. NCDOT received about 1,000 comments and the legislature received 1,000s of comments on the HB44 anti-Road Diet Bill last session, so together, we heard reference to a “bicycle movement.”
BWNC was disappointed that the final version removed the provision directing NCDOT to develop a safety education program for motorists and bicyclists. The removal likely happened because the timelines were too tight and there was no new funding. However NCDOT has committed to working with BWNC to develop a comprehensive motorist and bicyclist education program. The education program could help both motorists and bicyclists understand the rules of the road, thereby reducing conflicts.
BWNC is also thankful for NCDOT’s assistance in adding a definition of electric assisted bicycles to the bill so that e-bikes would not be classified under motorcycle laws. BWNC worked closely with NCDOT’s Division of Motor Vehicles and with House and Senate Transportation Leaders – Representatives Torbett, Iler and Shepard and with Senators Rabon and McKissick. Without the electric assisted bicycle definition and exemption from motorcycle laws, “e-bikes” would have been categorized as motorcycles and subject to all those rules and requirements. We believe that without this definition and exemption, “e-bikes” would not be able to be used on our roads, as they could not meet all the specifications of motorcycles. People for Bikes provided expertise from a national perspective and helped answer many questions about this still evolving technology.
Ann Groninger of Bike Law North Carolina provides her insights into the value of uninsured and underinsured motorist coverage for bicyclists.
PLEASE DO THIS RIGHT NOW – 100% MUST HAVE INSURANCE COVERAGE FOR BICYCLISTS
Guest Post by Ann Groninger
For at least the past ten years, in group talks, blogs and social media posts, I have been talking about uninsured and underinsured (UM/UIM) coverage for North Carolina bicyclists. Recently Bike Law published this very well laid out article written by Bike Law’s Maine attorney, again urging all bicyclists to increase UM and UIM coverage: https://www.bikelaw.com/2016/06/does-auto-insurance-cover-bicycle-accidents/
Yet we don’t seem to be reaching everyone. At least a few times a month we see cases where the driver who caused the crash does not have enough insurance to cover our client’s damages and our client does not have enough underinsured coverage to make up the difference. If the injuries are serious, the financial consequences can be tragic.
Hopefully posting this information on others’ sites will help spread the word. PLEASE TAKE THESE STEPS BEFORE YOU RIDE AGAIN:
- Find your auto insurance declarations page. It should be attached to the front of your policy. If you can’t find it, call your agent to send you a copy;
- Look for UM/UIM coverage. If it says 50/100, that means you have $50,000 to cover you in the event of an injury, $100,000 if more than one covered person is injured in the same crash. However, in North Carolina, you must subtract the at-fault driver’s coverage. So if the driver has the minimum limits of $30,000 and you have $50,000, that gives you an additional $20,000
- Ask yourself, “if I am in a crash and suffer a serious injury (think brain injury, spinal cord injury, anything requiring multiple days of hospitalization and weeks or months out of work) will the amount of MY coverage be enough to cover my damages?” If you think, “well I have health insurance to cover medicals and the driver’s insurance will cover pain and suffering,” think again! Your health insurance may be able to take that $30,000 right out of your pocket.
- Call your insurance agent and tell him/her that you want to increase your UM/UIM coverage to $1,000,000. It will likely cost you an additional $20.00 per month. You do not need to increase your collision coverage (unless you yourself have minimum limits) in order to purchase more UM/UIM. If your insurance agent tells you it can’t be done, switch your insurance company. Most of them will sell you that coverage.
- Read the Maine Bike Law article to find out what other coverage you may need.
- Spread the word to all of your cyclist friends and pester them until they do it!
Attorney Lauri Boxer-Macomber from Maine writes:
While health and disability insurance are important, they are often not enough to comprehensively and fully address all of a person’s or a family’s post-crash losses—which often include lost wages, lost opportunities, permanent impairment, emotional distress, years of pain and suffering, a loss of consortium and other damages. This is why bicyclists may want to think more carefully about their insurance coverage, including their automobile insurance coverage.
As in Maine, what a North Carolina bicyclist may be entitled to in the way of UM/UIM Coverage can often be very complicated and requires interpretation of a combination of your insurance contract, the UM/UIM statute and case law. Further, there are requirements that must be satisfied before you can reach your coverage. Therefore, working with an attorney who not only understands bicycle and personal injury law, but insurance law, is key.
The final word from all of us with Bike Law: “Don’t wait until disaster strikes to do your insurance tune up. Just as you wouldn’t ride with worn-out brakes or thin tires, don’t ride without sufficient UM/UIM. Make sure you and your families have the necessary coverage in the event that anything happens to you. Then, after you take care of all of this paperwork, go back to riding safely and joyfully on the road with the energetic passion of a five-year-old on a big wheel and the wisdom of your collective years, knowledge and experiences.”
Ann Groninger is an attorney based in Charlotte who specializes in bicycling cases. She is also an avid cyclist and cycling advocate.
Motor vehicle drivers pass bicyclists safely countless times every day. When done improperly, however, the results can be tragic. Some drivers say that they are unsure of what to do when they encounter bicyclists on the road ahead. It’s therefore important to increase public awareness of how to pass a bicyclist safely.
Safe passing of a bicyclist on ordinary roads requires following three simple steps:
1. Slow Down.
2. Look and Wait until Safe.
3. Change Lanes to Pass.
Let’s look at each step in detail:
1. Slow Down
Your first responsibility as a driver is to not hit other people who are already in front of you. This means always being prepared to match their speed or stop as required. Slowing down ensures that you’ll have the time you need to fully assess the road and traffic conditions prior to executing a safe pass. Lower speed also gives you more time to react should conditions change, and greatly reduces the danger you pose to the bicyclist should a collision occur.
If you’re traveling too fast to slow down in time, that means you’re violating the basic speed law. You must always limit your speed so that you can stop within the distance that you can see ahead. This principle is known as assured clear distance ahead. Always choose a safe speed for conditions, and keep your eyes on the road.
Don’t pass bicyclists at high speed; high speed is associated with most sideswipe collisions involving motorists passing bicyclists. Slower speed gives everyone on the road more time to see, think and respond to one another.
2. Look and Wait until Safe
Don’t try to squeeze between a bicyclist and other traffic in the adjacent lane. On the vast majority of roads, travel lanes aren’t wide enough for this to be safe. Attempting to squeeze past a bicyclist in the same lane is the most common cause of car-overtaking-bicycle collisions. You’ll need space in the next lane in order to pass, so look for a safe gap in that traffic and wait as required. If the adjacent lane is for opposite-direction traffic, wait until you have sufficient sight distance to ensure that no traffic will arrive before you can complete the pass.
Some bicyclists will hug the right edge of a narrow travel lane in an effort to stay as far away from other traffic as they can manage. Don’t misinterpret this as an invitation to pass within the same narrow lane; these bicyclists report lots of unsafe same-lane passing of the type that most often results in collisions. Knowledgeable bicyclists will often ride near the center of a narrow lane, or ride two abreast, in order to deter motorists from making the mistake of trying to squeeze by. These cyclists aren’t being rude; they are just driving defensively.
Make sure you can see an adequate distance ahead to ensure oncoming traffic won’t arrive before you finish your pass. State law requires waiting until you have adequate clear sight distance before you pass. The longer the group, the greater distance you’ll need.
(a) The driver of a vehicle shall not drive to the left side of the center of a highway, in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.
(b) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of 500 feet. ….
Lastly, don’t pass at an intersection where traffic may enter or cross the passing lane, and don’t attempt to pass a bicyclist immediately before turning right. You may underestimate the bicyclist’s speed and cut the bicyclist off or hit them during your turn. Instead, slow down and merge to the right behind the bicyclist as you approach the turn. It’s better to follow for a few extra seconds than to risk a collision.
3. Change Lanes to Pass
Once you have an adequate gap in traffic in the next lane, move completely into that lane. This will give the bicyclist a safe buffer and the room they need to maneuver for maintaining balance and avoiding surface hazards.
You may ask: “What if there is a solid line indicating a no passing zone?” Passing a bicyclist in a no-passing zone is legal in North Carolina when done safely with no oncoming traffic and adequate sight distance, passing at a distance of at least four feet or moving completely into the next lane. See § 20-150. Limitations on privilege of overtaking and passing.
You may ask: “What if I start to pass and I realize that I’ve misjudged oncoming traffic?” Simple: Press your brake pedal, and slip back behind the bicyclist(s). No harm, no foul. Worst case: Stop completely, and let everybody sort it out. Stopped vehicles don’t hurt people.
Here’s a video from the Austin (Texas) Police Department that discusses safe passing:
These three steps don’t take much time and effort. In many cases there is no net delay to the motorist; in the worst cases, the delay is rarely longer than that of waiting for a traffic signal. If you experience delays that are longer in North Carolina, we’d like to know about it, so we can better understand the effects of road design and bicycle traffic on your convenience, and consequently support desirable road improvements and/or have an informed discussion about where and when bicyclists may be able to help you pass sooner. Send email to firstname.lastname@example.org to send us the North Carolina road location, time and date of where you first encountered a long delay, and where on the road the delay ended, and we’ll share your information with NCDOT as well.
For more information about safe passing, see the following:
- Safe Passing Principles, Laws, and Recommendations by BikeWalk NC
- Recommendation to allow passing bicycles on North Carolina Highways by Kevin Lacy, State Traffic Engineer, NCDOT (also here)
- Safe Passing and Solid Centerlines by BikeWalk NC
- Crossing a Double Yellow Line by Eli Damon, I Am Traffic
- Sharing the Road, North Carolina Driver Handbook, Chapter 6, pages 81-82