Passing Laws: Is Three Feet Really Good Enough?

The following guest post comes to us from Ray Thomas and Jim Coon, who are founding partners of Swanson, Thomas, Coon & Newton in Oregon. Thomas is also a member of the League’s Legal Affairs Committee.

The bicycle’s narrow width of track allows lawful and safe sharing of the lane with motorists, at least theoretically and if everything goes right.

This right to the road is fundamental and must be defended. This article discusses the current and changing law of motor vehicle passing distance and its implications for legal responsibility.

Passing Law Standards or Non-Standards

Safe motor vehicle passing distance depends initially on the cyclist’s entitlement to part of the road. How much roadway we are entitled to by law is a flexible standard — it ebbs and flows with changing road conditions.

Add a left turn, a pothole or an unleashed dog on the shoulder and we are allowed to take the entire lane. This is because the law in practically every state contains some variation of the Unified Vehicle Code (UVC) provision that, since shortly after World War II, has required bicyclists to ride as “far to the right as practicable” when riding at less than the “normal speed of traffic.”  UVC section 11-1205 (“Position on Roadway”).

When motorists pass bicyclists in the traffic lane, the amount of space they must allow is based on a different UVC standard that is so vague as to be difficult to comply with or to enforce.  UVC Section 11-303(a) requires the motorist to leave a “safe distance” when passing. Bicycle advocates have long complained that this section and its state law derivatives result in the issuance of traffic tickets by police only when an overtaking driver actually hits a bicyclist.  

Bicyclists whose state laws allow passing drivers to define for themselves what a “safe distance” is can expect little enforcement short of a collision, and wide variation in how drivers translate the standard into inches on the roadway.

Bicycle advocates in a number of states have promoted the “three foot rule,” requiring motorists traveling at certain speeds to leave three feet between their vehicles and bicycle riders. Twenty six states and Washington, D.C., have now adopted this standard. However, many riders passed by a large speeding truck with only “three feet to spare” know that this is a woefully inadequate standard when translated into real road conditions.  A three foot standard fails to address the bicyclist’s own need to adjust course while being passed to deal with surface hazards like debris or other road surface irregularities.

The “Fall Over” Distance Legal Standard 

In 2007 the Oregon Legislature added an innovation to the nation’s passing laws when Senator Floyd Prozanski (D-Eugene) reformed Oregon’s UVC-based bicycle passing laws. It proposed a new collection of legal concepts intended to remedy several factors believed responsible for the tragic death of triathlete Jane Higdon on Territorial Road in Eugene, Oregon. Higdon, riding with group, was passed too closely by a truck hauling logs and was killed.

The law, which went into effect on January 1, 2008, defined “safe distance” as “sufficient to prevent contact with the person operating the bicycle if the person were to fall into the driver’s lane of traffic.”

The “fall over’ distance creates a readily identifiable, intuitively sensible space determined by the dimensions of the bicycle

The “fall over’ distance creates a readily identifiable, intuitively sensible space determined by the dimensions of the bicycle and rider and, if followed, creates an adequate margin of safety. It’s easier for motorists and law enforcement officers to visualize on the road and far less subjective than “safe distance.” It’s safer than three feet.  

“Prima Facie Evidence” of Unsafe Passing

For many years bike-savvy visitors to Europe have returned to the U.S. excited about the European legal concept that places the presumption of fault on the drivers of motorized vehicles after collisions with bicyclists and pedestrians. Bicycle advocates have called on legal activists to work toward similar change in the United States.

In the 2007 “fall over” distance Law, Oregon added another provision that makes passing a bicyclist in a no-passing zone “prima facie evidence” of unsafe passing if the cyclist is injured.  ORS 811.065(2).  That means, in a no-passing zone (most of our favorite curvy roads), law enforcement has made its case for unsafe passing against the driver if it shows the driver crossed the center line.  The driver then has the burden to show that he passed safely, which can be difficult when he or she hit and injured the cyclist.

Negligence Per Se in Civil Court 

It is important to note that, in most states, proof of a traffic violation is not admissible in a civil trial for damages.

This means that an injured cyclist cannot use the fact that the driver was convicted in traffic court to prove that the driver was negligent.

However, the civil law in most states also provides that an injured plaintiff can prove that the driver violated the elements of a relevant traffic statute, albeit without introducing proof that there was also a finding of violation in traffic court. This is called “Statutory Negligence” or “Negligence Per Se” and is a standard tool used by plaintiffs’ lawyers in civil cases to establish the fault of the defendant.  

The effect of such proof streamlines the need for further proof of fault. It means that violation of a traffic statute is unreasonable conduct without further proof. Thus, while the fact that a driver was convicted in traffic court of violation of the Safe Passing Law may not be introduced in a civil case, proof that the driver’s conduct violated the elements of the Safe Passing statute will establish the prima facie case of negligence and hold the driver accountable for damages.

While it’s not the European model, the Safe Passing Law’s prima facie proof shifting in traffic court and the ability to use Statutory Negligence in civil court combine to give the injured person important legal tools.

The Safe Passing Law provides a usable and enforceable legal standard for safe passing on the road that is easy for overtaking drivers to follow and for the local police to enforce.

— Ray Thomas and Jim Coon have been law partners in a trial and appellate practice in Portland, Oregon, since 1992, which concentrates in part on representing vulnerable road users. They are also bicycle commuters and fitness riders who believe riding hill climb sprints is great sport though they admit most days they are relegated to the chase group.