Dear Readers,
Recently, we had a letter from MC in Kentucky (See Law of the Land), who wrote

I've Googled, and I’ve searched the Kentucky Legislature site, but the only Kentucky "laws" I can find dealing with bikes on the road are about lights, reflectors, etc. I can't find anything about cars having to pass bikes with 3 feet of clearance (which appears to be the "universal standard")…I called the local city police chief: "I'm not aware of any regulations for bicycles in Kentucky, other than the requirement for a helmet." I called the County Sheriff's office: "There are no laws on the books dealing with bicycles.”…So... How in the blue blazes can I find a list of the bicycle laws for Kentucky? Or aren't there any? Any further ideas?

As you may remember, MC was really asking two questions here—where he can find the bicycle laws of Kentucky, and what Kentucky requires for passing clearance. The Kentucky statutes are not the easiest to understand at first glance, so I gave him some pointers for finding and understanding the statutes, as well as for figuring out what Kentucky requires for a safe passing clearance.

Well, Mark Twain once said "If you don't like the weather in New England, just wait a few minutes." Sometimes the law is like the New England weather; shortly after that column was written, the Supreme Court of Kentucky handed down a major decision on the rights of cyclists to use the roads. We'll review that decision in this column. Additionally, several readers have offered suggestions for sources for finding the bicycle laws for Kentucky, so this week, we’ll be taking another look at bicycling in the Bluegrass State.

Finding the State Laws
First, let’s review. As in every state, the bicycle laws are found in the state statutes. In Kentucky, those are the Kentucky Revised Statutes, or KRS. Additionally, KRS Section 189.287 authorizes the Transportation Cabinet to promulgate bicycle safety regulations and standards. These bicycle safety regulations and standards are found at the Kentucky Administrative Regulations, or KAR. To make them easy to find, Kentucky has even posted the bicycle laws on its Bicycle and Pedestrian Program website

In addition to the statutes and regulations, Kentucky advises motorists and cyclists on the bicycle laws in its Driver Testing Manual. Kentucky, by the way, is not alone in this field—the driving manuals of most other states also contain information about cycling. Another source for Kentucky’s bicycle laws is found on the University of Kentucky website. So why not just direct MC to one of those sites, instead of to the statutes and regulations? Well, in this instance, MC was asking for more information than either the Driver Testing Manual or the University of Kentucky provide—he wanted to know where he can find the laws, so he could know what the laws are, specifically because he wanted to know what Kentucky requires for a safe clearance when passing a bicyclist.

But wait a minute—is there a difference between reading the Driver Testing Manual and reading the statutes? Well, consider this: suppose a cyclist receives a citation, or is involved in an accident. In those instances, the Driver Testing Manual isn’t going to be helpful. What the cyclist really needs is the source of the law—that is, the statute number—and the wording of the law. Let’s look at an example. Suppose a cyclist is riding along on the road, when a car approaches, passes the cyclist, but doesn’t give enough clearance, and collides with the cyclist. Although the Driver Testing Manual provides useful information to the cyclist before a ride, it is less helpful to the cyclist who has been injured in an accident. Was the driver at fault? Was the cyclist at fault? Recently, the Supreme Court of Kentucky had a case before it asking precisely this question, and the outcome hinged on the wording of the statute.

The Supreme Court of Kentucky Weighs In: Previs v. Dailey
On May 29, 1999, Nollaig Previs was riding on a two lane road in Bourbon County. She was riding uphill at a speed of approximately one or two miles per hour when she was approached from behind by Pete Dailey, who was driving a pick-up truck that was pulling two flatbed wagons; the total length of Dailey’s vehicle was approximately forty-eight feet. At the crest of the hill, Dailey crossed into the left lane to pass Previs, and assuming that he had passed her, he crossed back into the right lane. However, he had not actually completely passed her, and as he merged back into the lane, her handlebars became wedged under the second wagon he was towing. Her bike was pulled under the wagon, and she was thrown into a ditch on the side of the road. Previs filed a personal injury lawsuit against Dailey, and a trial was held on November 8, 2001. The jury returned a verdict in favor of Dailey.

And that would have been the end of Previs v. Dailey, except… After the trial, the jury foreman called the judge and said that he was troubled because the jury had discussed an issue that was not presented at trial. Under oath, the foreman testified that the jury discussed whether a reasonable bicyclist would have pulled off of the side of the road to allow a large vehicle to pass, and that the jury had not discussed whether Dailey had violated his duties as a passing motorist. Based on this testimony, Previs made several motions to change the verdict or to have a new trial. All her motions were denied, and she appealed. Eventually her case was heard by the Supreme Court of Kentucky.

In its analysis of the issues at trial, the Court first addressed Dailey's duties as a passing motorist. Although the jury had not discussed Dailey's duties, the lower Court had in fact instructed the jury on Dailey's duties. The jury instruction provided that:

It was the duty of the defendant, Pete Dailey, upon the occasion about which you have just heard evidence, in driving his automobile to exercise ordinary care for his own safety and for the safety of other persons using the roadway, and this general duty included the following specific duties:1. To keep said automobile under reasonable control;2. To drive and keep his automobile to the right-hand side of the roadway, and not to pass the Plaintiff on her bicycle moving in the same direction ahead of him unless the overtaking and passing could be completed without interfering with the safe operation of the bicycle ridden by the Plaintiff; 3. After passing the Plaintiff to not drive to the right until reasonably clear of her; 4. To maintain a lookout both to the front and to the rear for other vehicles near enough to be affected by the intended movement of his automobile; 5. To exercise ordinary care to avoid collision with other automobiles on the roadway.

Where did the trial court come up with this notion that Dailey had a legal duty to not pass unless he could do so without interfering with the safe operation of Previs’ bicycle? Did the court just make this stuff up, or did the court find it in the law somewhere? Well, it was a little of both. KRS 189.340(1) provides that “Vehicles overtaking other vehicles proceeding in the same direction shall pass to the left of them and shall not again drive to the right until reasonably clear of those vehicles.” Using the statute as the basis for its jury instruction, the court interpreted “reasonably clear” to mean “without interfering with the safe operation of the bicycle ridden by the Plaintiff.” That’s what courts do—they attempt to interpret the legislature’s intent when the meaning of a statute is ambiguous.

So, the jury was instructed to find whether Dailey (the motorist) had violated his legal duties to Previs (the cyclist) when he passed her. According to the testimony presented at trial, Dailey had admitted that he violated his legal duties to Previs when he stated

“If I had looked in my rearview mirror…I wouldn’t have probably seen Nollaig anyhow…”

Notice that he said “If I had looked in my rearview mirror”? In other words, using the language of the statute, what Dailey was saying was that when he passed Previs, he “again drove to the right” without looking in his mirror to see if he was “reasonably clear” of Previs’ bicycle. But Dailey had more to say:

“My thought is, when I pass a grown person, whether it be a lady or a man—I have no thought of trying to protect her…I mean, once I started passing her, I felt it would be her obligation to allow me around her.”

So Dailey passed Previs, and without looking in his mirror to see if he was “reasonably clear” of her, “again drove to the right” because, as the Kentucky Supreme Court observed, he “believed that it was solely Previs’ obligation to make sure he safely passed her.” Referring to the Kentucky statute on which the jury instruction had been based, the Supreme Court concluded

“Clearly that is not the law…The evidence presented at trial was uncontroverted that Dailey had not fully passed Previs at the time he maneuvered his truck back into the right lane. Such is a clear violation of Dailey’s statutory duties and constitutes negligence per se.”

Negligence per se? What does that mean? Normally, the question of negligence—whether a particular act is negligent or not—is submitted to the jury to decide. But sometimes, an act is negligent as a matter of law—meaning the statute itself makes the act negligent—and in those instances, the question of negligence is not submitted to the jury to decide, because the law itself says the act is negligent. When Dailey admitted at trial that he broke the law, the act became negligent as a matter of law, and therefore, according to the Kentucky Supreme Court,

“the trial court erred in submitting the question of Dailey’s negligence to the jury, and we must conclude that the jury’s verdict absolving him of liability was so flagrantly and palpably against the weight of evidence as to indicate that it was reached as a result of passion or prejudice.”

On that basis, the Kentucky Supreme Court sent the case back to the trial court with instructions to grant Previs a “Directed Verdict,” which means that the trial court would enter a judgment finding Dailey negligent, because no other verdict is possible with the evidence presented. However, the Kentucky Supreme Court observed that

“a jury is still entitled to consider Previs’ duties in operating her bicycle, and apportion fault should it find that Previs was negligent as well.

Wait a minute—where did that come from? Remember that after the trial, the foreman testified that the jury discussed an issue not presented at trial—whether a reasonable bicyclist would have pulled off of the side of the road to allow a large vehicle to pass? At trial, Dailey made what the Kentucky Supreme Court described as

“several speculative, self-serving comments…concerning Previs’ inexperience with biking and his “belief” that she must have accelerated as he tried to pass her…”

Nevertheless, despite Dailey’s “speculative, self-serving comments,” the Kentucky Supreme Court instructed the trial court to direct a jury to consider whether Previs was negligent as well. But if Dailey’s contention that “it would be her obligation to allow me around her” was “clearly …not the law,” why would the court instruct the jury to consider Previs’ obligation to Davis?

At trial, the jury received instructions on Dailey’s legal duties to Previs, which I discussed above. But the jury also received instructions on Previs’ legal duties to Dailey. These instructions were only referred to briefly in the Kentucky Supreme Court’s opinion, so we don’t know what the jury was instructed to consider, but we do know that the jury was not instructed to consider whether Previs was obligated to pull off the side of the road to allow a large vehicle to pass. How do we know that this was not in the jury instructions? Because the fact that the jury did discuss this led to the Supreme Court appeal.

What about Dailey’s contention that Previs contributed to the accident by accelerating as he passed her? Is it possible that the jury was instructed to consider whether Previs negligently accelerated her bicycle as Dailey attempted to pass her? I suppose it is possible, although it seems a bit unlikely. As the League of American Bicyclists pointed out in its Friend of the Court brief, Davis’ testimony that he “believed” that Previs must have accelerated her bicycle was not evidence, and therefore could not be considered by the jury. Now there’s an interesting thought—Davis testified as to what he believed had happened, and yet it’s not “evidence.” Why is that? Well, as the League of American Bicyclists noted, Davis admitted that he hadn’t looked in his mirror, and therefore, had admitted that he hadn’t actually seen what happened. Therefore, because he hadn’t actually seen what happened, Davis’ testimony about what he “believed” must have happened is not evidence under Kentucky rules, and the jury could not consider that testimony in its deliberations on Previs’ negligence.

So, back to the question—is it possible that the jury was instructed to consider whether Previs negligently accelerated her bicycle as Dailey attempted to pass her? It seems unlikely. Nevertheless, the Kentucky Supreme Court instructed the trial court to direct a jury to consider the question of Previs’ negligence, in accordance with the instructions the jury received at trial. The only thing we know for sure is that while Davis’ failure to determine whether he was “reasonably clear” of Previs was negligent as a matter of law, there remains the possibility that Previs may also have been negligent.

And that is the current state of the law in Kentucky: Passing a bicyclist in a manner that interferes with the safe operation of a bicycle is negligent, but a cyclist may also be found negligent if the cyclist’s own actions contribute to the failure to pass safely. So what impact does this ruling have? In Kentucky, this ruling is binding, which means all Kentucky courts must follow this ruling. In other states, the ruling is considered “persuasive,” meaning it is not binding, but nevertheless carries some authoritative weight that the courts may consider.

The moral of this story? Know the law, and be careful out there.

Good luck,
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)

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Now read the fine print:
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the "Legally speaking"column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.