Op-Ed: Polzo vs. Essex County decision - Part 2: The bad. The REALLY bad!!

As I said at the end of Part 1 of this op-ed, there is reasoning in this Supreme Court that reaffirms an inferior legal status for bicyclists based on weak and incomplete language New Jersey's vehicle code also known as Title 39.  If one looks at the language of the unpublished Polzo vs. Essex County decision, the Supreme Court rightly latches on to the fact that Title 39 does not define a bicycle as a vehicle.  Once it come to this conclusion and the fact that Title 39 does not clarify or grant special permission for bicyclists to use the roadway shoulder, it all goes dangerously down hill from there.  Look at the legal reasoning below that I've quoted.  I've added my emphasis in red.  The Court added their emphasis by underlining:  

In deciding that question, we begin with some basic principles of law governing our roadways. The “roadway” is “that portion of a highway . . . ordinarily used for vehicular travel,” whereas the “shoulder” is “that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular travel.” N.J.S.A. 39:1-1 (emphasis added); see also Hochberger v. G.R. Wood, Inc., 124 N.J.L. 518, 520 (E. & A. 1940) (“The shoulder is not designed nor constructed for general traffic uses but is rather for emergency uses such as parking of vehicles disabled or otherwise.”); Sharp v. Cresson, 63 N.J. Super. 215, 221 (App. Div. 1960) (“It is clear that the Legislature did not intend that the shoulder of a road be used for ordinary travel.”). A “vehicle” is defined as “every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or motorized bicycles.” N.J.S.A. 39:1-1(emphasis added). By the Motor Vehicle Code’s plain terms, roadways generally are built and maintained for cars, trucks, and motorcycles -- not bicycles. Even the Pothole Primer -- relied on by plaintiff -- defines a pothole as a “pavement defect” that will “cause significant noticeable impact on vehicletires and vehicle handling.” Pothole Primer, supra, at 6 (emphasis added).

A bicycle rider on a roadway is vested with all the “rights” and “duties applicable to the driver of a vehicle” under Title 39, chapter four of our Motor Vehicle Code. N.J.S.A. 39:4-14.1. Under the Motor Vehicle Code, “[e]very person operating a bicycle upon a roadway [is required to] ride as near to the right side of the roadway as practicable.” N.J.S.A. 39:4-14.2. Bicyclists do not have special privileges on a roadway’s shoulder. Indeed, a bicycle rider is directed to ride on the furthest right hand side of the roadway, not on the roadway’s shoulder. The Motor Vehicle Code does not designate the roadway’s shoulder as a bicycle lane.⁹

We understand that many bicyclists may be inclined to ride on a roadway’s shoulder to stay clear of vehicular traffic and out of concern for their safety. Nevertheless, inherent dangers confront bicyclists who travel on roadways that are not faced by operators of motor vehicles. A tree branch, a stone, and even a pothole or depression might destabilize a bicycle that a car would harmlessly pass over. Public entities do not have the ability or resources to remove all dangers peculiar to bicycles. Roadways cannot possibly be made or maintained completely risk-free for bicyclists.

Roadways generally are intended for and used by operators of vehicles. That is a point addressed by the Illinois Supreme Court in Boub v. Twp. Of Wayne, 702 N.E.2d 535 (Ill. 1998). In that case, the plaintiff sued Wayne Township after he was thrown from his bicycle when the front tire became stuck between two planks on a wooden bridge that was under renovation. Id. at 536. The Illinois Tort Immunity Act has a provision similar to N.J.S.A. 59:4-2. Id. at 537. In affirming the grant of summary judgment in favor of the municipality, the Illinois high court observed that “many road conditions that do not pose hazards to vehicles may represent special dangers to bicycles . . . such as potholes, speed bumps, expansion joints, sewer grates, and rocks and gravel, to name but a few.” Id. at 542-43. The court believed it “appropriate to consider the potentially enormous costs both of imposing liability for road defects that might injure bicycle riders and of upgrading road conditions to meet the special requirements of bicyclists.” Id. at 543. For purposes of the Illinois Tort Immunity Act, it held that although bicycle riders are permissive users of roadways, those riders should not “be considered intended users.” Ibid.

So this is the rundown of the Supreme Courts thinking on this and my take on the problem and what needs to be done:

• Bicycles are NOT vehicles even though a bicycle rider on a roadway is vested with all the “rights” and “duties applicable to the driver of a vehicle."  This is somewhat crazy classification for bicyclists putting us in a legal limbo.  It similar to the idea that civil unions are the same as a marriage even though they aren't.  New Jersey leaves it bicyclists in a precarious legal position by not defining a bicycle as a vehicle.  It's time to ask that the Legislature call bicycles what they are.  Vehicles with special privileges. 


• “It is clear that the Legislature did not intend that the shoulder of a road be used for ordinary travel.”  Quoting an earlier New Jersey case, how much clearer must the Supreme Court make its opinion known?  If the Legislature did not intend that the shoulder be used for ordinary travel then it is time to ask the Legislature for an exception and clarification of the use of roadway shoulders for bicyclists.  NJDOT and many other New Jersey road departments, like counties, declare that shoulders make their roadways "bicycle compatible."   I sorry but they can't have it both ways.


• "By the Motor Vehicle Code’s plain terms, roadways generally are built and maintained for cars, trucks, and motorcycles -- not bicycles."  The New Jersey Supreme Court doesn't even need to quote the 1998 Boub v. Twp. Of Wayne case decided by the Illinois Supreme Court and much maligned by Bob Mionske in his Bicycling and the Law book, but they do so anyway.  It's time again that the Legislature acknowledge that bicyclists are intended users of all roadways that they are legally allowed to ride on.


• "Bicyclists do not have special privileges on a roadway’s shoulder. Indeed, a bicycle rider is directed to ride on the furthest right hand side of the roadway, not on the roadway’s shoulder."  Does this then mean that bicyclists surrender their "rights and duties applicable to the driver of a vehicle"if they decide to ride on the shoulder?  Will a bicyclist always now be at fault in any crash if that crash happened while the bicyclists was riding in the shoulder due to this interpretation?  Will a bicyclists now have no legal recourse against a driver, criminal or civil, if that driver violates a bicyclist's right-of-way if the bicyclist was riding in the shoulder?  Even though I'm not so sure if this opinion is as draconian as I fear it could be, of all the opinions of the Supreme Court, I find this idea most disturbing.  Talk about," Damned if you do.  Damned if you don't!"  It is clear once again that a clarification in Title 39 is needed about the operation of bicycles in roadway shoulders which can only come from the legislature.

Again, this case should come as a major wake-up call to the legal conundrum bicyclists find themselves in due to the poor and incomplete language in New Jersey's Title 39 regarding the legal rights given to bicyclists.  It's time to get the Bicycle and Pedestrian Advisory Council - Legislative Sub-Committee up and running again as it is clear the language in Title 39 regarding the legal status of bicyclists is in need of a major overhaul.  Many other states across the country have recognized the shortcomings in their vehicle codes regarding bicyclists and have done this already.  It's time for New Jersey to catch up.