Wednesday, August 12, 2009

Land of the Free...

Recently, a group of folk back in my old stomping grounds in Iowa started a petition to ban cyclist from the nearly 30,000+ miles of 'farm to market' roads. I'm not the first nor the last to respond to this petition, and this is not the first time a group in the U.S. has tried to ban cyclists from the road [previously in Colorado]. Like many, I can not stress the amount of frustration I have towards those who are proposing such a ban. I've spent the last few days reading up on how this might play out and how the law reads in matters concerning right to the road. The main source has been the book Bicycling and the Law by Bob Mionske and much of what I will be stating comes from what he has written. I can not stress how appreciative I have been to have this book as a resource and believe it is a must for anyone spending any time riding on the road.

Let's start this by hearing what the Citizens for Safety Coalition of Iowa [CSCI] are petitioning, that is: 'to have the Iowa Legislature support a ballot initiative for the November 2010 election which will prohibit bicyclists from using state and county defined farm-to-market roads.' Stating specifically that 'Over the past ten years the number of bicyclists using these farm-to-market roads for recreational purposes has increased dramatically as have the number of preventable accidents and fatalities. Rural commerce and citizens are significantly impacted when forced to share the farm-to-market roadways with bicyclists. Because of the growth of today's commerce and agricultural business, shared roadways are no longer safe or practical in today's society.'

The absurdity of this petition baffles me. The CSCI is claiming and taking the approach that they are looking out for the best interests and safety of both the rural citizen and cyclist by pushing for this ban. The reality is that such a ban could become a battle of constitutional right, because 'the U.S. Constitution guarantees the ancient right of liberty, including the right to travel. [...] All courts agree that there is a constitutional right to interstate travel; some courts, and virtually all constitutional scholars, have held that there is a corresponding right to intrastate travel.' [Mionske, 110] Moionske goes further to stress that unlike freedom of speech, the right to travel is a fundamental right [Freedom of speech is restricted as observed by Justice Oliver Wendell Holmes 'the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic'] and in restricting such travel strict scrutiny of such laws must take place [108,112].

Sure, I might be jumping and going further with this more than most in arguing that banning cycling is an attack on the liberties assured to us by the Constitution. The CSCI states that there has been a 'number of preventable accidents and fatalities' due to the increased number of cyclists on these roads. Granted the internet is not always the best place to gather reliable statistics, I struggled to find any statistic showing increased fatalities on farm to market roads; most are still typically found in towns, on paved surfaces rather than the roads in the petition.

As I pointed out earlier, the CSCI is 'taking the approach that they are looking out for the best interests and safety of both the rural citizen and cyclist'. Which then opens the door to state vehicle codes or moreover the same guideline from state to state handed down by the federal government called Uniform Traffic Laws. Because the CSCI is using what Mionske calls 'Assumption of Risk' found on page 25 where he writes:

"The law does not require a person to surrender the lawful exercise of a valuable right [use of a public street] or assume the risk of injury merely because someone else's conduct or failure to exercise due care threatens harm."
Bell v. Chawkins, 460 S.W.2d 850 (Tenn. 1970)

Suppose somebody who owes you a duty of care breaches that duty, and you're injured as a result of that person's negligence. Now that person needs a good defense. "Assumption of risk" is one such defense - it's the negligent person's way of saying, "Whether I was negligent or not, you knew the risk, and you took it anyway, so I shouldn't be held liable for your injuries."

Assumption of risk is a powerful defense in negligence cases. Even if the person who injured you is held liable for your injuries, your "assumption of the risk" may reduce the amount of compensation that you would otherwise be entitled to.

Think for a moment about how problematic this defense would be, however, if it were applied to negligence in an auto accident: You get into your car, you drive to work, somebody negligently causes an accident, and then blames you f or being on the road in the first place.

Would this argument make any sense to you? Hopefully not, and yet that is exactly what is being claimed when the assumption-of-risk defense is used in the context of auto/bike collisions. [...] [B]aring a few exceptions, courts have universally agreed that it is not a legitimate defense outside of the sporting context.

He then goes into what he calls the 'Proper Lookout' which applies to both automobiles and cyclists in that we both share the same rights to the road. He quotes from a case in Idaho Supreme Court, Drury v. Palmer [25-26]:

It is the obligation of an operator of a motor vehicle to keep proper lookout. The whole theory of motor vehicle law is based on the requirement that the operator keep his vehicle under control at all times, considering actual and potential hazards, which of necessity contemplates proper lookout by the operator. It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is plainly visible or obviously apparent, and a failure on his part in his regard, without proper justification or reason, makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care.

In the end, rural citizens must take responsibility for their own driving, accidents happen for a number of reasons and it is just as much of a jump to simply blame the cyclist riding on these roads as the cause. All cyclist regardless of where we are riding we MUST obey traffic laws, because if we don't and ride as though we are free to claim which ever best suit us and our time schedule or training plan, we don't deserve a right to the road.

We will always be climbing uphill in this struggle for our right to the road and we will always encounter those who don't believe we should be on the road. But let's do what we can to take the ammunition away from them.

Ride right.
Ride safe.

1 comment:

bluecolnago said...

i've never had any issues with farmers out on the county roads and gravel. it's the idiots that have moved to the smaller towns from the city or the small town residents that work in the city that seem to have such a dislike for cyclists. they can't be expected to talk on their cell phone, smoke their cigarettes and drink their coffee while driving and still be expected to watch out for cyclists. i dunno, buddy. it's crazy. got buzzed twice within a mile yesterday on center street just south of janesville. you have to wonder what some folks use for brains.