A Partner at my law firm, who we will call “Kenny,” is a motor vehicle enthusiast. He lives in the suburbs and loves his cars. He talks about valves and pistons like cyclists talk about bottom brackets and tire pressure. But Kenny is also a creature of habit, resistant to change, and diametrically opposed to anything that gets in the way of his car and HIS roads, especially bike lanes. (Ed. Note: To be fair, Kenny owns two bicycles and often rides on the rail trails, but never on the road). Every day, without fail, Kenny will stop in my office to report that he did not see any bikes in the Penn Avenue bike lanes during his morning commute. At first I shrugged and laughed his comments off because it was the dead of winter and the Downtown protected bike lane infrastructure was not yet complete.
Spring has finally sprung, and the Allegheny County Public Works crews have started a second phase of protected bike lanes on the Sixth Street/Roberto Clemente Bridge. Mayor Bill Peduto pointed out that the city isn’t currently “counting bicyclists” in the Penn Avenue lane, at least “[n]ot until we get more infrastructure in place.” He explained that “[h]aving one lane isn’t going to all of a sudden make people say, this is the way that I can be able to do it. Having a lane that connects to another that connects to another that allows you to be able to get safely around Downtown….”
Under Pennsylvania Law, every person riding a bike has the same rights and duties as every person driving a car. Matt Dolfi, the Lawyer-Cyclist, does a nice job of discussing some of the intricacies here. It is even well documented (here, here, and here, just to name a few) that protected bike lanes reduce accidents and injuries to drivers, cyclists, and pedestrians, and if cities build bike lanes, people will ride. Now that Pittsburgh has its very own protected bike lanes and cyclists don’t always have to ride on the road (because riding on sidewalks in business districts is prohibited), are cyclists required to use them? What if the bike lane doesn’t take you to where you need to go? What if the bike lane doesn’t provide the most efficient route?
While it seems obvious that cyclists should use the bike lanes and will use the bike lanes, cyclists are not required by law to ride in the bike lanes. The absence of a legal requirement, however, hasn’t stopped some law enforcement officers from writing tickets for failure to do so. Aside from the safety benefits of protected bike lanes, Pennsylvania cyclists would be well advised to use the bike lanes when they are available in order to protect their legal interests in the event of an accident.
Pennsylvania Courts follow the “choice of way” or “choice of path” doctrine. This rule applies where a person has a choice of ways—one of which is perfectly safe and the other of which is subject to risks and danger. If the person chooses the risky way and is injured, then he may be guilty of contributory negligence and prohibited from recovering damages for his injuries. Downing v. Shaffer, 371 A.2d 953, 956 (Pa. Super. 1977). This rule is simply a “formulation of the general rule that a person is contributorily negligent if his conduct falls short of the standard to which a reasonable person should conform in order to protect himself from harm.” Id. The Courts have maintained, however, that this rule should not be construed to impose unreasonable restrictions on travel: “There is no law which requires anybody to follow any particular course in reaching his destination. People have the freedom of movement in this country and they may even follow whim or caprice in attaining their objectives. Even if the alternate course could be determined hypothetically safer but the chosen is still free from hazard and authorized by law,” a wrongdoer cannot escape responsibility for his negligent conduct by claiming that the injured cyclist could have avoided injury by taking an alternative route. Id. In other words, cyclists are not required to go out of their way to find the safest route. Rather, when cyclists are presented with two options, a safe option and a risky option, they probably should choose the safe option (duh!).
For example, in the case of Parnell v. Taylor, 403 A.2d 100, 104 (Pa. Super. 1979), the Pennsylvania Superior Court found that the choice of way doctrine did not apply where the cyclist had a legal right to be on the road and there was no evidence that a safer route existed or that the route chosen was inherently unsafe or a danger could be inferred. While the Courts have not yet been presented with a Penn Avenue bike lane case, it is unlikely that Pittsburgh cyclists will be required to go out of their way to use Penn Avenue and the Roberto Clemente Bridge to go between the North Side and Downtown. But a cyclist who finds himself in the Cultural District should probably make use of the bike lane rather than Penn Avenue or the sidewalk.
Once the Roberto Clemente Bridge bike lane is finished on or about April 10th, the city will have a lane that connects to another that connects to another. Should @billpeduto start counting bicyclists on Monday April 13th? I don’t know if the Mayor’s plans, but I would bet a pair of Zipp 404s that Kenny will be in my office first thing in morning with an update.
By: Rick Holzworth, Attorney at Fox Rothschild and member of the La Prima Espresso Co. Racing Team.