Page 12 - May June 2022 CBA Report

DON’T MISS Bike Law 101: Tips for Handling “Bike” Cases in Ohio and Kentucky
May 10 | 11 a.m. – 1 p.m.
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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 Regu- lations 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 para- mount 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 excep- tions. 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 unhin- dered 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 over- taking 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 rear- view 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% contribu-
torily 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 regu- lation 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.
Carville joined the CBA in 1997. Chris has combined a passion for cycling with a passion for legal advocacy. He is licensed in both Kentucky and Ohio and can be found at KentuckyBikeLawyer.com.
Magas, Ohio’s BikeLawyer, has been a trial lawyer since 1982 and has handled 1000s of injury & death cases, along with nearly 500 “bike” cases throughout the state. He writes about bicycles & the law and has given his BIKE LAW 101 CLE classes several times throughout the state.
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THE REPORT | May/June 2022 | CincyBar.org