Evolution of Three-Foot Laws for Passing Cyclists

Ohio’s Three-Foot Law:  R.C. 4511.27

Ohio enacted its Three-Foot Law in 2017. Prior to 2017, Ohio was in the “safe distance” passing law category.  Today, Ohio’s Three-Foot Law can be found in Revised Code 4511.27 entitled “Rules Governing Overtaking and Passing of Vehicles.”

The statute’s safe passing standard states: “When a [motorist] overtakes and passes a bicycle or electric bicycle, three feet or greater is considered a safe passing distance.” Contrast this statutory language with the United States’ first Three-Foot Law in Wisconsin: “Exercise due care, leaving a safe distance, but in no case less than three (3) feet clearance when passing the bicycle and maintain clearance until safely past the overtaken bicycle.” Wis. Stat. § 346.075. Wisconsin’s three-foot law contains a clear and mandatory minimum. Ohio’s three-foot law invites debate over situations where less than three feet could be “considered” safe.

In fact, the language first submitted by the Ohio Bicycle Federation was tougher, stating that a “safe distance shall not be less than three feet.” However, one legislator held up the passage of the Three-Foot bill until the language was amended to its present state. Current Ohio law states [perhaps less clearly] that a three-foot passing clearance is the minimum distance to be deemed “safe.”

A cyclist always “loses” in a crash with a passing motorist.  Absent evidence of a dramatic and sudden swerve or change in direction of the cyclist, the fact that the crash occurred as a car was trying to pass a cyclist is damning evidence that the motorist violated R.C. 4511.27 and there is tremendous value in that. The statute sets up a per se safety standard of a three-foot buffer for passing a cyclist. If a cyclist can reach out and touch any part of a passing vehicle, the vehicle is clearly too close.

Although not explicitly stated, there is also a subtle burden shifting to the motorist to prove his or her pass was made at a safe distance when less than three feet was afforded the cyclist. What we typically find is a suggestion by the motorist that she/he was passing “lawfully” at three feet or more when the cyclist “suddenly swerved” into the side or path of the car.  These “suicide swerve” suggestions can often be proved, or disproved, through the testimony of an expert in bicycle crash reconstruction. 

Tension Between R.C. 4511.27 and 4511.55

AFRAP is short for “As Far Right As Practicable” and is a universal Bike Law term in the United States. Every state has some version of an AFRAP law. Ohio’s Three-Foot Law must be read in conjunction with Ohio’s AFRAP Law for Cyclists, which is found in R.C. 4511.55. Subsection (A) requires that “Every person operating a bicycle or electric bicycle upon a roadway shall ride as near to the right side of the roadway as practicable[.]” 

Subsection (C) qualifies the practicability language above:

This section does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane.

One should note that the word “practicable” is used over 400 times in the Ohio Revised Code — and is undefined throughout. The 2006 amendments added R.C. 4511.55(C) as an exception to the AFRAP Rule. The last sentence of R.C. 4511.55(C) bears special attention. It is, frankly, the exception that swallowed the Rule.

Keri Cafferty, a Florida graphic artist and bicycle advocate, created the graphic to the right which shows how a truck and bicycle cannot safely share a fourteen-foot-wide lane. Virtually EVERY lane of every road on which cyclists ride in Ohio is less than fourteen feet wide.  The safety-valve of Subsection (C) offers a bit of definitional depth to what is “practicable” by allowing a cyclist to ignore the “AFRAP” law in most situations.

The “too narrow” provision of Subsection (C) is a secret weapon. Certainly, a fourteen-foot lane does not allow “sharing.” Subsection (C) allows the cyclist to “Take The Lane” — a phrase used in teaching “transportation” cycling, which means to choose a lane position that is adequately into the lane, and away from the edge, so as to make the cyclist more conspicuous to all traffic. Since virtually every lane in Ohio is “too narrow” to be shared, then virtually every lane in Ohio is a lane in which the cyclist can choose a safer lane position without being in violation of the AFRAP law.

Kentucky’s Three Foot Law: KRS 189.340

Subsection (2) of KRS 189.340 was amended in 2018 to include bicycles and further amended in 2019 to include electric low-speed scooters.  

Unlike Ohio’s Revised Code 4511.27, Kentucky’s Three-Foot Law includes a very clear prohibition on overtaking or passing a cyclist: “Vehicles overtaking a bicycle…proceeding in the same direction shall: … If there is only one lane for traffic proceeding in the same direction, pass to the left of the bicycle…at a distance of not less than three feet between any portion of the vehicle and the bicycle…and maintain that distance until safely past the overtaken bicycle[.]” KRS 189.340(2)(a).

Unlike Ohio, Kentucky does not have an AFRAP statute specifically addressing cyclists. Rather, KRS 189.300 broadly states that “any vehicle when upon a highway shall travel upon the right side of the highway whenever possible[.]” As discussed below, the “keep right rule” is set forth in 601 KAR 14:020 Section 7(3)(a) through (i). The Administrative Regulations do not regulate “practicability” as seen in R.C. 4511.55. 

So, the question of where the cyclist is riding on a Kentucky highway is of paramount importance. A strict reading of KRS 189.340(2)(a) would require a three-foot buffer under all conditions when passing or overtaking a cyclist. Although untested, there is an argument that if the cyclist did not have a right to be on the roadway in the first instance, then KRS 189.340(2)(a) might not apply. For example, a cyclist is prohibited from riding in a roadway where there is a “designated bike lane” in Kentucky. This is a strict prohibition found in 601 KAR 14:020, which is subject to six exceptions. Similarly, a cyclist is prohibited from riding within the right-of-way of a “fully controlled access highway” (603 KAR 5:025 Section 4) which is, in laymen’s terms, a highway that provides an unhindered flow of through traffic, with no traffic signals. The definition of a “fully controlled access highway” can be found in 601 KAR 1:019(3).

So long as the foregoing prohibitions (use of available “designated bike lane” and nonuse of right-of-way of a “fully controlled access highway”) are not at issue and the cyclist, at worst, is in the shoulder or berm of a roadway, Kentucky’s protective three-foot buffer would apply.

Even before the KRS 189.340(2)(a) amendments, the Kentucky Supreme Court recognized that a motorist can be guilty of negligence per se when overtaking a cyclist on Kentucky roadways.  In Previs v. Daily (2005), 180 S.W.3d 435, 436 the defendant approached the plaintiff cyclist from behind “driving a pick-up truck with an eight-foot bed and camper top . . . pulling two flatbed wagons, making the total length of the vehicle approximately forty-eight feet.” The Supreme Court noted that defendant admitted that he did not look in his rearview mirror when returning to the right lane as he was passing the plaintiff (id. at 438) and was not sympathetic to his excuse for returning to the right lane to “avoid a potential collision with oncoming traffic” finding “[i]f the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189.340(4).”  Id. at 438.

The Supreme Court reversed the trial court’s failure to grant the plaintiff’s motion for directed verdict against the defendant and the case was remanded for a new trial.  Id. at 439.  However, when the case was retried, the entire focus of the new trial was the conduct of the cyclist with new jury instructions that placed duties of care on plaintiff based on KRS 189.350, entitled “Assistance in passing or overtaking” between vehicles. The second jury found plaintiff to be 50% contributorily negligent under the KRS 189.350 standard. Some cyclists in Kentucky will refer to Previs II, 2006-CA-002243 as giving rise to a cyclist’s “duty to give way” to passing motorists.  

One can now argue that KRS 189.340 (a)(2) controls as the more specific regulation of vehicular passing (between motorist and cyclist) rather than the general regulation of vehicular passing (simply between “vehicles”). “[W]here there is both a specific statute and a general statute seemingly applicable to the same subject [the rule] is that the specific statute controls.” Bevin v. Beshear, 526 S.W.3d 89, 91 n.6 (Ky. 2017) (citations omitted).  This argument is further buttressed by the fact that KRS 189.340 was amended in 2018 as compared to the 1994 amendment of KRS 189.350.