Monday, March 19, 2012

Commissioner Simpson hears your demands for restored access to NJ TRANSIT trains

NJDOT Commissioner
James Simpson
On Wednesday March 14th, WalkBikeJersey took a bike and train ride up to Newark to speak before the NJ TRANSIT Board of Directors and Commissioner James Simpson to followup on our email petition that seeks to restore bicycle access to all NJ TRANSIT train stations and has garnered just shy of 300 signatures (see the original August, 2011 story here).  When I got up to speak, I started by quoting a key part of the NJ TRANSIT Bicycle Program Rules as they were published on the NJ TRANSIT website in March, 2009:
Cyclists or Segway users must be able to lift their bicycle or Segway up and down stairs while boarding and detraining rail cars.
I told the Commissioner that the last time I spoke before the board I was told that the policy eliminating access for bicyclists to low-level platform stations was a simple clarification.  I told Simpson and the Board that I took great exception to the notion that this policy was a mere "clarification" as it was exceptionally clear that prior policy gave emphatic permission to bicyclists to board NJ TRANSIT trains at low-level platform stations due to the above policy statement.  As such we at WalkBikeJersey felt that we were given no choice but to start the petition to reverse this policy that has since packed the Commissioner's inbox with nearly 300 messages.

When I apologized for the flood of messages in his mailbox, Simpson was very gracious and told me there was no need.  He was very sympathetic to the situation and even told me that he was committed to seeking a solution to the problem that would be satisfactory to all parties and even offered that I sit on the committee that would look into this and possibly other issues related to bicycle access to NJ TRANSIT.  I assured the Commissioner that I had also given this problems great thought and felt confident that there is a solution that will actually benefit cyclists and eliminate the liability issues that concern NJ TRANSIT.

While we are not yet close to a reversal of this policy it is clear that that we are headed in the right direction. We at WalkBikeJersey could not have gotten this far without the hundreds of you who signed our petition and made it clear how much this policy change at NJ TRANSIT has adversely impacted those bicyclists that signed the petition but also the thousands of others who haven't.

Thank you for supporting our petition.  We couldn't have done it without you.

Friday, March 16, 2012

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 vehicle tires 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.

Tuesday, March 13, 2012

Op-Ed: Polzo vs. Essex County decision - Part 1: The good

Before I say anything I want all to know that we at WalkBikeJersey wish to offer our condolences to Donald Polzo on the loss of his wife to this tragic bike accident ten years ago.   

The other day we reported about about a New Jersey Supreme Court decision (Polzo vs. Essex County) that denied compensation to the widower of a woman who died in a bicycle crash likely caused by a depression in the shoulder of the roadway.

In the Summer of 2001 Mathi Kahn-Polzo crashed after riding over a depression in the shoulder of Parsonage Hill Road while riding within a group of other cyclists while going downhill (Note - group riding can be very  dangerous particularly if the cyclists are riding very close together in an effort to draft off the riders in front).  Tragically, she died from a brain injury 26 days after the crash despite having worn a helmet when the crash happened.

Her widower, Donald Polzo sued the county that was the authority that maintained the road claiming that the county knew about the road defect because the county performed an audit of road surface conditions several weeks prior to the fatal crash.  The appeals court sided with the plaintiff but the Supreme Court reversed the decision this past January based primary on the following reason:

A road condition survey was performed by the county could and that survey could not have reasonably detected the 1 1/4 inch depression in the shoulder surface.  Since the county had also made reasonable attempts to fix roadway defects along the entire 2.6 mile length of Parsonage Hill Road at the time of inspection and that the depression could not have been reasonably determined to be a significant hazard.  Due to the reasonable efforts by the county and reasonable doubt as to whether the depression constituted a "dangerous condition" the county had done its duty to be covered by the provision of the Torts Claim Act.  (I'm paraphrasing.  To see the actual Supreme Court Decision see this link).
While I do not want to trivialize this tragedy, I am relieved that the husband lost this case because if he won, I believe it would have been a major setback in getting our county governments to build on-road bicycle amenities.  Our counties governments in New Jersey are already irrationally skittish to the prospect of providing bicycle amenities on their roads for fear of being sued.  If the plaintiff had won this case I am convinced it would have shut down bicycle improvements in most New Jersey counties for at least a decade.

However the Supreme Court decision also has some bad elements that reaffirm an inferior legal status for bicyclists riding on New Jersey's roadways.  We'll take a look at this in Part 2 tomorrow.

Thursday, March 08, 2012

"Art Cycle" exhibit begins with reception this Saturday in Newark

Our good friends at the Brick City Bike Collective along with the Index Art Center are proud to present:

ART CYCLE! - An exhibition of bicycle inspired art.

IAC is revisiting one of our favorite subjects, and hopefully yours BICYCLES!
Marcel Duchamp created his most famous "Readymade" Bicycle Wheel in 1913. Over the last century the influence of the bicycle on art is as diverse and far reaching as the two wheel machine itself. 

Bikes have been used as kinetic sculptures, muses for painters and photographers, and as a blank canvas for artists and innovators alike. This exhibition, once again, hopes to capture the spirit of the bicycle, and its place in contemporary art.

Rob Barth, Daniel Brophy, Ron Brown, Beatriz Burgos, Lawrence Cappiello, Christine Vidal Da Cruz, Danielle Auriemma D’Amico, Dominique Duroseau, David Dziemian, Sara Friedman, Michael C Gabriele, Andrea Geller, Samantha Katehis, Hannah Kirshner, Kaitilin Knoblick, Arthur Kobin, Kevin Merkel, Marco Munoz, Raisa Nosova, Reginald Perry, James Prez, Amy Puccio, Arthur Really, Tony Rendeiro, Larry Ross, Don Sichler, Kelly Vetter, Vazquez, Sergio Villamizar, Lee Allen Wells, Adrienne Wheeler

Video works by:
Robert Ladislas Derr, Natalie McKeever, Alessandro Perini, Joey Wright

March 10 through April 1, 2012
Reception: Saturday, March 10, 7 to 11pm

Also exhibiting:
Index Reception Room: Lisa Conrad.
27 Mix: Works by Sophia Sobers
After Party at 27 Mix

Gallery hours:
Thur: 6 - 9 pm
Fri: 1 - 4 pm
Sat: 1 - 4 pm
Viewing appointments are welcome

585 Broad Street
Newark, NJ 07102

Monday, March 05, 2012

Two legal actions regarding bicycle crashes could have future ramifications

Recently the NJ Bike Ped News Feed produced by the Voorhees Transportation Center Bike/Ped Resource Center covered a couple legal stories of note in the past months.   While both stories have their origins in tragedy, the actions and decisions by the New Jersey legal systems may have profound implications in the way bicycle crashes and the reckless vehicular operations are handled.

The first story dating back to November 27th of last year is about a serious crash cause by a driver who hit a seriously injured two cyclists.  What makes this story remarkable is that the Bergen County Prosecutor has decided to take the case and that the driver is being charged with two counts of Assault by Auto, Reckless Driving and Failure to Maintain a Lane.  While the crash itself is horrible as all are, it is at least a relief to the justice system taking a serious and appropriate stance in the face of the vehicular violence that will affect these two cyclists the rest of their lives.  Unfortunately, the news stories did not go into detail as to why such a serious charges were  filed or if there were extenuating circumstance that necessitated the charge.

The other story is also tragic and dates back to a crash from 2001 where a woman died after hitting a pothole in the shoulder while riding downhill with at group of other experienced cyclists in Essex County.  The case here hinged upon two issues.   The primary is whether the county is liable for the crash since it was informed of the pothole multiple times prior to the crash.  However it should be noted that the cyclist was riding in a group and that her ability to see the pothole could have been obscured by others she was riding with.  I was concerend that if the plaintiff won the case based on this premise, then Essex County and other county and municipal governments would have a good reason not to build bicycle faculties like bike lanes for fear of being liable in a case just like this one. 

However in the final decision from the State Supreme Court question whether or not a roadway shoulder is even intended for bicycle riding.  The precedent of this secondary issue could prove problematic for cyclist in the future trying to make legal claims when injured or ticket while riding in the shoulder.  This particular conclusion of the NJ Supreme Court is clearly in need of further research and may require legislative action to protect the rights of cyclists.

The unpublished Supreme Court decision can be found here.

Friday, March 02, 2012

What's at stake with the Federal Transport Bill

Congress to America, "Get a car!"

That's the title of this Jay Mallin video that does a superb job of illustrating what is at stake with the transportation debate and ordeal going on in Washington.  Thanks to Streetsblog DC for bringing this video to our attention.

Get a Car from Jay Mallin on Vimeo.