Right of Way on Paved Shoulder

Question

Nathan asked: If two cyclists are on the shoulder, one with (motorized) traffic and the other against traffic, who has right of way?

Answer

That is an excellent question, but I’m afraid I can’t give you a good answer.

You are correctly implying that the paved shoulder is not part of the roadway.

s. 316.003 – Definitions

(42) Roadway – That portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.

Almost all of the statutes that direct these actions by drivers refer to those in the roadway. This is the only exception that I can find.

s. 316.082Passing Vehicles Proceeding in Opposite Directions

(1) Drivers of vehicles proceeding in opposite directions shall pass each other to the right.

The paved shoulder is not clearly defined nor accounted for in the statutes. It is not the roadway, nor is it the sidewalk. Although bicyclists may use a paved shoulder, they are never required to do so unless it is marked as a bike lane. In some circumstances, bicyclists must use a bike lane.

On most paved shoulders, there is not room for two bicyclists to safely pass when proceeding in opposite directions at speed. Either the bicyclist traveling with other traffic must leave the pavement or the other cyclist must unlawfully enter the roadway. There is no statute that specifically says which is required except that it would not be lawful to do the latter.

In any event, both cyclists have the duty to exercise due care and slow or stop as necessary to avoid a collision.

s. 316.185Special Hazards

…. when special hazards exist or may exist with respect to pedestrians or other traffic …. and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the street in compliance with legal requirements and the duty of all persons to use due care.

Riding against traffic, even on a paved shoulder, is not recommended since it is nearly impossible to do so lawfully for any distance. Remaining on a paved shoulder at an intersection or driveway exposes the rider to many hazards, including turning motorists that do not expect to see a vehicle approaching from the right.

Posted in Ask Geo, Overtaking & Passing, Rights & Duties
8 comments on “Right of Way on Paved Shoulder
  1. fred says:

    I would interpret the question to mean that the bicyclists are approaching each other head-on. This would also mean that the contra-flow cyclist is in violation. Wouldn’t it be correct to consider that such violation also implies lack of right-of-way?

    It’s certainly a less-than-ideal situation in which to be caught. In most circumstances, I would consider to hunker over, brace myself and continually adjust my trajectory in such a manner as to take out the contra-flow rider.

    From a more practical standpoint, the rider traveling with traffic is better equipped to deal with adjacent motorized vehicles by moving out of the lane, controlling the lane, which additionally protects the contra-flow rider from oncoming motor vehicle traffic.

  2. Geo says:

    Fred,

    There is no statute that says the contra-flow cyclist is operating unlawfully since he/she isn’t in the roadway. That’s the point of the question.

    The with-traffic cyclist could leave the paved shoulder and enter the roadway only if it is safe to do so. That would be the safest solution, but is not required. If there is conflicting traffic in the roadway, that would not be possible.

  3. fred says:

    That’s an interesting way of looking at things. I’ve rechecked the statutes and found nothing to contradict your statements. This would imply that one could be cited for contra-flow riding, but if the rider was on the shoulder, he is not in violation. That’s a pedantic yet proper interpretation of the statutes, in my opinion, but as any skilled rider would believe, an unsafe manner of operation.

    If a rider is contra-flow on a shoulder and espies an obstacle, he is in violation by entering the roadway, while a with-traffic rider has the right to enter the roadway in a safe manner and will remain legal.

    In the last legal action, the judge referenced the definition of Highway from the statutes, which is somewhat hidden in the text. When one combines the “exclusive of the shoulder” portion and “within the boundaries” part of the highway definition, it does appear that contra-flow riding is not a violation. I’ll bet an uninformed uniformed law enforcement officer would think otherwise.

  4. Geo says:

    It is confusing.

    The definition of “highway” includes the roadway, a paved or unpaved shoulder and the sidewalk, in addition to any other land out to the boundary of the property.

    s. 316.003 – Definitions
    (53) Street or Highway.
    (a) The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic ….

    Some of the statutes refer to “highway”, such as DUI, and some to “roadway”, usually those pertaining to vehicular operation refer to the latter.

  5. California established a rule on the shoulder-cycling direction question by providing in CVC 21650.1:

    “A bicycle operated on a roadway, or the shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway.”
    http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=21001-22000&file=21650-21664

    This raises the question: on a 2-way roadway, in which direction are vehicles “required to be driven”? It would depend on the side of the roadway–but a shoulder-riding cyclist is not on the “roadway”. Presumably the intended meaning was that a cyclist operating on a shoulder in California must ride in the same direction as vehicles on the adjacent side of the roadway are required to be driven, and this is the way the rule has been interpreted.

  6. Geo says:

    Interesting that CA does not specifically exclude the shoulder from the definition of “roadway” as does FL.

    530. A “roadway” is that portion of a highway improved, designed,
    or ordinarily used for vehicular travel.

    • Although the CVC definition of “roadway” does not include Florida’s explicit “exclusive of the berm or shoulder” clarification, I think it is nevertheless understood to exclude the shoulder.

      If a shoulder were understood to be part of the roadway, there were be no need for s. 21650(g) to provide that the section (which elsewhere requires that “a vehicle shall be driven upon the right half of the roadway”) does not prohibit a bicycle from being operated on the shoulder. Also, highway shoulders are usually not “improved, designed, or ordinarily used for vehicular travel”. They are used for bicycle travel, of course, but the CVC defines “vehicle” (s. 670) to exclude a “device moved exclusively by human power”.

  7. Keithmj says:

    The one going with the flow of traffic has the right of way, the one acting more like a vehicle should. If it was a motorcycle or a car who would have the right of way? The one going the correct way would logically be the correct one.

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