by Mimy A. Bailey

Feature

Where to Ride — the Road or the Trail?

“The driver failed to look before turning and cut off a cyclist.” “A cyclist takes a Superman dive over their bars at a railroad crossing.” The cyclist always loses in these scenarios. Broken bones, torn tissue, and strained joints don’t heal with a fresh coat of asphalt or a trip to the auto body shop. Keeping cyclists safe is a group effort between the government, cyclists, and drivers. Let us look at how the law encourages government to be a part of this effort.

Safety as a cyclist is paramount. Our safety is ensured by our cautious actions, those of drivers, and proper design of the roadways on which we travel. We must obey traffic laws, pay attention to our surroundings, and assume that drivers do see us. We all hope that drivers are looking for us and respecting our right to be on the road and we rely on government to accommodate our right to be on the road by designing proper bike lanes, bike paths and traffic control devices to minimize the conflict between bicycles and cars.

So is it safer to take the bike trail or the adjacent roadway? Transportation engineers agree that bicycle routes that are separate from vehicle traffic are ideal — think bike trails over sharrows and bike lanes. In Seattle, the Burke-Gilman Trail is the best example of a respite from vehicle traffic. It is a paved multi-use trail that runs north-south for more than 25 miles on the path of old railroad tracks.

Photo by Mimy A. BaileyWhere to ride? The choice is yours - the trail...

Ride the Burke-Gilman and you are less likely to come face-to-face with a bumper or a windshield on your way to work, but what about the surface of the trail? What about its design and especially the intersections with streets and driveways? When you ride on the roadway you can rely on the state, county or city government to provide a reasonably safe road. Bicycles, cars and trucks are all “vehicles” under Washington law. Roads, highways and streets must be kept reasonably safe for ordinary travel. It is the duty of the government to make roadways safe. If the duty is breached and that breach causes injury, the government may be held accountable.

However, the laws in Washington State are vastly different when it comes to recreational land, including bike paths, as opposed to roadways designed primarily for motor vehicle traffic. The latest case, considering the status of a bike path, viewed it as recreational land and therefore applied the Washington statute that immunizes recreational landowners from liability (RCW 4.24.210).

The purpose of the statute is to encourage private and public landowners to open their land for recreational use. To fall under the statute, the landowner must keep the land open primarily for recreational purposes. It strikes a balance between protecting the public and shielding the landowner from liability. Only when there is a known condition that is dangerous, artificial and not obvious to the user will liability potentially exist. If such a condition exists, at a minimum, warning signs must be posted.

It is an exciting time for cyclists as people in the Northwest turn to two-wheeled transportation as a fun, efficient, and green alternative to sitting behind the wheel in frustration. Bike paths are used for both recreation and transportation purposes. In light of the dual use of bike paths, does it make sense for recreational immunity to apply?

... or the road.

The law encourages and discourages conduct. Without a duty to keep bike paths safe for ordinary travel, are paths being properly maintained? Hundreds of cyclists use Seattle area bike trails everyday and most without incident, but without a law that encourages specific conduct in designing and maintaining bike trails, will they be maintained to the same level that we require for highways, roads, and streets?

Laws evolve — sometimes ahead of our social, moral, and political values — and other times behind them. If we consider biking to be a legitimate form of transportation, does it make sense that bike paths should be kept as “reasonably safe” like highways, roads and streets?

Mimy is a personal injury attorney with Stritmatter Kessler Whelan Coluccio in Seattle, Wash. Her practice includes a variety of cases and she takes a special interest in representing injured cyclists. Mimy races for Team Group Health, a Seattle women’s racing team. She can be reached at (206) 448-1777 or visit www.yourbikeattorney.com.