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Legally speaking with Bob Mionske: Off-road trails, crosswalks and right of way

Dear Bob,Here in Massachusetts, we have several off-road trails that cross roadways in mid-block using crosswalks. The trail has a regular stop sign facing the path, only smaller, and the crosswalk has the usual street markings. The roadway doesn't have a stop or yield sign, but it does have a yellow warning sign. Some cars stop, some don't. Who really has the right-of-way, a cyclist or a motorist? Is the stop sign legitimate, or just advisory?E & C Dear E & C,This is a good question, and it's becoming a hot topic among off-road trail planners. Many motorists think that they only have an

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By Bob Mionske

Dear Bob,
Here in Massachusetts, we have several off-road trails that cross roadways in mid-block using crosswalks. The trail has a regular stop sign facing the path, only smaller, and the crosswalk has the usual street markings. The roadway doesn’t have a stop or yield sign, but it does have a yellow warning sign. Some cars stop, some don’t. Who really has the right-of-way, a cyclist or a motorist? Is the stop sign legitimate, or just advisory?
E & C

Dear E & C,
This is a good question, and it’s becoming a hot topic among off-road trail planners. Many motorists think that they only have an obligation to yield to pedestrians when they are in a crosswalk. Not true! In general, motorists have traditionally had a legal duty to exercise reasonable care to avoid pedestrians crossing the roadway, even when no specific provision was made for them. The lack of a crosswalk simply means that the motorist has less reason to anticipate that a pedestrian will appear. On the other hand, common law has generally held that a pedestrian should have a reasonable expectation that a motorist will yield to her when she is within a crosswalk, and motorist who enters a crosswalk when a pedestrian is present is presumed to be negligent.

But who’s protected – all crosswalk users, or only those actually walking across the street? A New Jersey court had to decide this in Eichinger v. Krouse, a 1929 case in which a boy wheeling himself down the sidewalk on a scooter entered a crosswalk and was struck by a truck. The truck driver argued that state law required him to stop only for pedestrians in the crosswalk, and that New Jersey defined pedestrians as “those who go about on their feet.” The court held that the boy should be considered a pedestrian:

“While it is understood [that a pedestrian] is one who travels on foot, nevertheless the mere circumstance that he or she has attached to his or her feet roller skates, or ice skates, or walks on stilts, or uses crutches, or is without feet and propels himself or herself along by means of a chair or some other mechanical device, does not clothe him or her with any other character than that of a pedestrian.”

Not everyone agreed with this interpretation, however, and in 1930 an Ohio judge held that a boy crossing a crosswalk in a coaster wagon (yes, red) was not a pedestrian:

“We believe that under the ordinance that was in effect at the time of this accident young Hattie should be considered the operator of a vehicle. It will be noted that the city code included as a vehicle everything on wheels except streetcars and baby carriages and we should therefore find that the same would include a coaster wagon which was being operated by Hattie for his own transportation.”

Most courts sided with New Jersey, not Ohio, and by World War II the general consensus among states was that any human-powered conveyance moving at a speed significantly less than that of motor vehicles should be considered a pedestrian when in a crosswalk. As one California judge put it in a 1952 case, Jermane v. Forfar:

“The purpose of the law is to safeguard human life, and it should not be construed so as to make it applicable only to persons walking heels-and-toe. We cannot escape the conviction that the term ‘walking in the highway’ was intended to be inclusive of all persons in the street, standing or moving therein, when using their legs and feet.”

After the war, every state replaced its common-law traffic ordinances with a uniform vehicle code. In your state, Massachusetts, the applicable section is Chapter 89, Section 11:

“When traffic controls are not in place . . . a driver shall yield the right of way, slowing down or stopping if need be, to a pedestrian crossing the roadway within a crosswalk marked in accordance with standards established by the department of highways.”

Unfortunately, Massachusetts law (like that in most states) is no model of clarity when it comes to defining what is or is not a pedestrian. In fact, the vehicle code doesn’t even contain a general definition of “pedestrian,” and there is no published case law, so it’s impossible to say with certainty what the law is. However, it is clear that there is no need for a stop or yield sign. If there is a “heels-and-toe” pedestrian in a crosswalk, the motorist must stop.

Likewise, Massachusetts law makes it clear that the stop sign on the trail is applicable to cyclists. Chapter 85, Section 11B makes all traffic control devices applicable to cyclists on “ways,” including both trails and roads.

Going back to the “who is a pedestrian” issue, a 1999 case, Pudmaroff v. Allen, in Washington state, is getting a lot of attention, and several other states have recently cited it. Pudmaroff was a cyclist on the Interurban Trail, a heavily used off-road path. It crossed a moderately busy street at a marked crosswalk. Cyclists had a stop sign on the trail; motorists a yellow warning sign. Pudmaroff stopped, then entered the crosswalk, where he was hit by a motorist, Allen. Allen argued that she was not required to stop for the cyclist because Washington’s vehicle code specifically said that bicycles were not pedestrians, but were vehicles, and that motorists were only required to yield to pedestrians in crosswalks. Because Pudmaroff was a vehicle, he should have treated the trail crossing like a roadway intersection, and, facing a stop sign, he had the duty to wait until all cross traffic had cleared before proceeding, regardless of the crosswalk.

The court rejected the intersection analogy, calling it “absurd,” adding;

“Equally absurd would be [the] practical application of Allen’s proposed interpretation: several groups cross on the Interurban Trail, some on foot, others on skateboards, Rollerblades, and bicycles, and wait for a clear opportunity to cross, and like Pudmaroff, they proceed only after they have properly checked for oncoming traffic. If such a group were hit in the crosswalk, under Allen’s interpretation, the vehicle driver would be liable to all those except those on bicycles. Such interpretation makes no sense.”

Although the court was interpreting Washington state law, this was a very well-written case, and could be helpful almost everywhere.

In a footnote to Pudmaroff, the Washington Supreme Court issued a polite warning to the state legislature, one that many states (including yours) with muddled non-motorized travel laws would do well to heed:

“Bicyclists enjoy an anomalous place in traffic-safety law. Cyclists are generally not pedestrians, nor are they always considered vehicles. Statutes variously treat bicycles and bike paths in a recreational context, and at other times the statutes treat them as part of the transport system. These statutes indicate that legislatures have viewed bicycles on paths on a case-by-case basis without any continuity. Plainly our legislature could usefully consider and clarify the state’s traffic-safety policy for bicycles and bicycle paths.”

Good luck,
Bob

(Research and drafting provided by Bruce Epperson, J.D.)


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 theSaturn Professional Cycling team for one year before heading off to lawschool. 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.