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NYBC Bike Lawyer Responds to death of Cyclist

Below is an op-ed written by NYBC Board Member Jim Reed, Esq. of Elmira, NY.

Jim and I co-author a monthly column for the New York Bicycle Coalition.

Jim is an avid cyclist and bike advocate who represents bike crash victims in NY.

Jim wrote this op-ed in response to the death of Fulton County resident Ed Lakata,

who was killed on June 25 in a collision with a motor vehicle while riding his bike.

New York Bicycling Coalition believes strongly that there are options for updating NY’s vehicle and traffic laws to include provisions that would be more effective at preventing motor vehicle-bicycle collisions; more easily enforced by police; and more easily understood by the general public.

Bicyclists in New York State are given the same rights and responsibilities as vehicle drivers, and yet too many people are being seriously injured or killed while bicycling on our roadways.

While NYBC will always work hard to encourage cyclists of all ages and abilities to Share the Road by riding lawfully and responsibly, we also recognize the role of our state government to enact good laws that protect all road users, and the role of law enforcement in reinforcing good bicyclist and motorist behavior through education and respectful enforcement of those laws. ~Josh Wilson, Executive Director

By Jim Reed

The recent death of a bicyclist in Fulton County is a tragic reminder of how New York state needs to sharpen its safe passing distance law to better protect bicyclists.

As an avid bicyclist and an attorney who has represented hundreds of bicycle collision victims and their families, I was saddened when I learned that a county sheriff misunderstood state law in reaching the wrong conclusion in the accident.

Fulton County musician Ed Lakata was riding his bicycle on June 25 when he was struck from behind by a pickup truck driven by 48-year-old John Damphier, according to the Schenectady Daily Gazette. Lakata was killed instantly. He was 55.

Damphier, who was not charged, told police that Lakata was struggling to ride his bicycle up a steep incline, and Lakata’s bicycle “wobbled right into the side of the truck,” Fulton County Sheriff Thomas Lorey told the Daily Gazette.

“It was an collision in the truest sense of the word,” Lorey said.

Lorey also said the white line between the shoulder and driving lane, called the fog line, is used to determine fault in bicycle accidents. “The collision happened very near the white line, but we couldn’t gather proof that anyone crossed over,” he said.

The sheriff is wrong in two ways about a white line analysis of fault in New York state cycling cases:

First, state law does not determine fault based solely upon which side of the fog line a collision occurs.

Second, because state law treats a bicyclist like any other vehicle, there are many occasions when a cyclist has a legal right to be to the left of the fog line, and is not at fault for being in the travel lane, if they need to use it for their own safety.

In addition, state law is clear that any motorist approaching a cyclist from behind may only pass that cyclist when there is a safe distance to pass that cyclist. Vehicle and Traffic Law Sec. 1122-a says, “The operator of a vehicle overtaking, from behind, a bicycle proceeding on the same side of a roadway shall pass to the left of such bicycle at a safe distance until safely clear.”

Motorists are required to slow or stop behind a cyclist if there is not a reasonably safe distance to pass a cyclist.

Even though the state law providing for a safe passing distance was a great first step for cycling safety when it was passed in 2010, I believe that New York would be better served by a law adopted in many other states that mandates a specific passing distance – usually three feet, but four feet in some states, rather than the more abstract “safe passing distance” standard applied in New York.

As a member of the board of directors of the New York Bicycling Coalition, I am urging the coalition to advocate for an amended passing law in New York.

James Reed is managing partner of the Ziff Law Firm in Elmira.

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