The impact of the sport of bicycle riding on safety law

American Business Law Journal

Volumn 35, Issue 2, 1998, Pages 185-224

  Petty, Ross D ^a  

^a BABSON COLLEGE   (United States)

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EID: 0032337013     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1998.tb01005.x     Document Type: Article

References (248)

1. JAMES MCGURN, ON YOUR BICYCLE: AN ILLUSTRATED HISTORY OF CYCLING 31 (1987). In 1811, the Director General of Police in Milan, Italy issued an ordinance banning velocipedes from the downtown streets at night. This is the earliest reported law addressing cycling usage, if indeed it addressed two-wheeled rather than three or four wheeled human powered vehicles. YERMO GALBIATI & NINO CIRVEGNA, BICYCLES: LE BICYCETTE 110-11, 123 (1994).
2. JAMES MCGURN, ON YOUR BICYCLE: AN ILLUSTRATED HISTORY OF CYCLING 31 (1987). In 1811, the Director General of Police in Milan, Italy issued an ordinance banning velocipedes from the downtown streets at night. This is the earliest reported law addressing cycling usage, if indeed it addressed two-wheeled rather than three or four wheeled human powered vehicles. YERMO GALBIATI & NINO CIRVEGNA, BICYCLES: LE BICYCETTE 110-11, 123 (1994).
3. PAUL C. WEILER & GARY R. ROBERTS, SPORTS AND THE LAW: CASES, MATERIALS AND PROBLEMS v (1993).
4. Even the chapter on individual sports is about such sports, e.g., tennis and golf, at the professional level. Id. at 651-709.
5. For a discussion of the law concerning individual bicycle riding, see JAMES M. GREEN, ET AL., BICYCLE ACCIDENT RECONSTRUCTION AND LITIGATION 401-644 (4th ed. 1995) (addressing traffic law rather than sports law).
6. U.S. DEP'T OF HEALTH AND HUMAN SERVS., PHYSICAL ACTIVITY AND HEALTH: A REPORT OF THE SURGEON GENERAL (1996)
7. Carol Krucoff, Real-Life Fitness Strategies, WASH. POST, July 16, 1996, at Z10.
8. The Consumer Product Safety Commission estimates that there are about 67 million cyclists in the U.S. U.S. CONSUMER PROD. SAFETY COMM'N., BICYCLE USE AND HAZARD PATTERNS IN THE UNITED STATES 3 (1994). These cyclists make about 1.8 billion bicycle trips annually, averaging about 2 miles per trip. U.S. DEP'T OF TRANSP., THE NATIONAL BICYCLING AND WALKING STUDY: TRANSPORTATION CHOICES FOR A CHANGING AMERICA (1994). One hundred years ago, there were between 1.5 and 4 million cyclists in the U.S. See MCGURN, supra note 1, at 113.
9. The Consumer Product Safety Commission estimates that there are about 67 million cyclists in the U.S. U.S. CONSUMER PROD. SAFETY COMM'N., BICYCLE USE AND HAZARD PATTERNS IN THE UNITED STATES 3 (1994). These cyclists make about 1.8 billion bicycle trips annually, averaging about 2 miles per trip. U.S. DEP'T OF TRANSP., THE NATIONAL BICYCLING AND WALKING STUDY: TRANSPORTATION CHOICES FOR A CHANGING AMERICA (1994). One hundred years ago, there were between 1.5 and 4 million cyclists in the U.S. See MCGURN, supra note 1, at 113.
10. See, e.g., Richard Harmond, Progress and Flight: An Interpretation of the American Cycle Craze of the 1890s, 5 J. SOCIAL HIST. 235, 236 (1971-72).
11. See, e.g., Gary Allan Tobin, The Bicycle Boom of the 1890s: The Development of Private Transportation and the Birth of the Modern Tourist, 7 J. POPULAR CULTURE 838 (1974).
12. See e.g., PETER NYE, HEARTS OF LIONS: THE HISTORY OF AMERICAN BICYCLE RACING 34 (1988).
13. See, e.g., Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641 (1989); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L. J. 1717 (1981).
14. See, e.g., Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641 (1989); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L. J. 1717 (1981).
15. See, e.g., Lawrence M. Friedman, Civil Wrongs: Personal Injury Law in the Late 19th Century, 1987 AM. BAR FOUND. RES. J. 351 (1987); LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973).
16. See, e.g., Lawrence M. Friedman, Civil Wrongs: Personal Injury Law in the Late 19th Century, 1987 AM. BAR FOUND. RES. J. 351 (1987); LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973).
17. See, e.g., PETER W. HUBER, LIABILITY (1990); WALTER K. OLSON, THE LITIGATION EXPLOSION 6-7 (1992).
18. See, e.g., PETER W. HUBER, LIABILITY (1990); WALTER K. OLSON, THE LITIGATION EXPLOSION 6-7 (1992).
19. See, e.g., W. KIP VISCUSI, FATAL TRADEOFFS 248-51 (1992).
20. The latter term is used broadly to include any a priori rule intended to reduce the likelihood or severity of injuries such as statutes enacted by a state or the federal legislature municipal ordinances and, later, rules of regulatory agencies.
21. STEVEN SHAVELL, AN ECONOMIC ANALYSIS OF ACCIDENT LAW 277-290 (1987); Susan Rose-Ackerman, Tort Law in the Regulatory State, in TORT LAW AND THE PUBLIC INTEREST 80 (Peter H. Schuck ed. 1991).
22. STEVEN SHAVELL, AN ECONOMIC ANALYSIS OF ACCIDENT LAW 277-290 (1987); Susan Rose-Ackerman, Tort Law in the Regulatory State, in TORT LAW AND THE PUBLIC INTEREST 80 (Peter H. Schuck ed. 1991).
23. See DAVID BOLLIER & JOAN CLAYBROOK, FREEDOM FROM HARM 163-187 (1986). A recent study used conditional logic techniques to find that the CPSC "over selected" projects in 1977 that involved mandatory product standards. Lacy Glenn Thomas, Revealed Bureaucratic Preference: Priorities of the Consumer Product Safety Commission, 19 RAND J. ECON. 102 (1988 ).
24. See DAVID BOLLIER & JOAN CLAYBROOK, FREEDOM FROM HARM 163-187 (1986). A recent study used conditional logic techniques to find that the CPSC "over selected" projects in 1977 that involved mandatory product standards. Lacy Glenn Thomas, Revealed Bureaucratic Preference: Priorities of the Consumer Product Safety Commission, 19 RAND J. ECON. 102 (1988 ).
25. See, e.g., U.S. CONSUMER PROD. SAFETY COMM'N., ANNUAL REPORT 22 (1982) Other commonplace products related to numerous injuries include stairs, nails, chairs, sofas, tables, and glass.
26. See Teresa M. Schwartz, The Consumer Product Safety Commission: A Flawed Product of the Consumer Decade, 51 GEO. WASH. L. REV. 32, 37 n.24 (1982).
27. For example, in 1977, the CPSC announced that its new bicycle safety standard would address 17% of all bicycle-related injuries. A later study suggests that it actually addresses less than 2% of such injuries. See Ross D. Petty, Regulation vs. the Market: The Case of Bicycle Safety, in 2 RISK: ISSUES IN HEALTH & SAFETY 77, 99, 111 (1991).
28. SHAVELL, supra note 16, at 279.
29. William Haddon, Jr., Advances in the Epidemiology of Injuries as a Basis for Public Policy, 95 PUB. HEALTH REP. 411, 417 (1980).
30. E.g., traffic law.
31. E.g., drivers' licenses.
32. See, e.g., NATIONAL COMM. FOR INJURY PREVENTION AND CONTROL, INJURY PREVENTION: MEETING THE CHALLENGE 8 (1989).
33. Mercer v. Corbin, 20 N.E. 132, 134 (Ind. 1889).
34. Note, Bicycle Law, 47 L.R.A. 289, 295 (1900).
35. See WILLIAM L. PROSSER, LAW OF TORTS 357 (4th ed. 1971); Williams v. City of St. Joseph, 148 S.W. 459, 460 (Mo. Ct. App. 1912) (bicyclist on sidewalk in violation of ordinance deemed a trespasser and prohibited from recovery). Modern cases sometimes do not follow this harsh ruling. See PROSSER, supra, at 361; Acosta v. Los Angeles County, 363 P.2d 473, 476 (Cal. 1961); City of Winchester v. Finchum, 301 S.W.2d 341, 347 (Tenn. 1957). Modern cases also agree that cyclists do not assume the risk of injury merely by riding on the road. See, e.g., Story v. Howes, 344 N.Y.S.2d. 10, 11 (1973) (risk of collision with car); Bell v. Chawkins, 460 S.W.2d. 850, 851 (Tenn. Ct. App. 1970) (risk of injury from dog); Vaughn v. Village of Cortland, No. 2788, 1980 Ohio App. LEXIS 13346, at *1 (Ohio Ct. App. March 24, 1980) (risk of storm sewer grate).
36. See NORMAN L. DUNHAM, THE BICYCLE ERA IN AMERICAN HISTORY 42, 111-112, 142-43 (1956); James Whiteside, It Was a Terror to the Horses: Bicycling in Gilded Age Denver, COLO. HERITAGE, Spring 1991, at 2, 4.
37. See NORMAN L. DUNHAM, THE BICYCLE ERA IN AMERICAN HISTORY 42, 111-112, 142-43 (1956); James Whiteside, It Was a Terror to the Horses: Bicycling in Gilded Age Denver, COLO. HERITAGE, Spring 1991, at 2, 4.
38. DUNHAM, supra note 29, at 271-73. Boneshakers were heavy wooden and iron machines with pedals attached to a heavy front wheel like a modern child's tricycle. The high wheel bicycle had an enlarged front wheel to go faster with each pedal stroke and was constructed from light weight steel tubing with wire-spoked wheels. FRANK ROWLAND WHITT & DAVID GORDON WILSON, BICYCLING SCIENCE 7-15 (1982).
39. In re Wright 29, Hun 357 (1883).
40. DUNHAM supra note 29, at 290, 293. Contrary to Kentucky's early ban, the Kentucky Attorney General recently supported the rights of bicyclists to be free from harassment, saying a cyclist could file a criminal harassment complaint or "bear arms in his own defense as long as he does not conceal them." 1978 Op. Att'y Gen. Ky. 713 (1978). Richard Sopris, Mayor of Denver, broke a tie vote to defeat a ban of bicycles from the streets of Denver. See Whiteside, supra note 29, at 4-5.
41. State v. Yopp, 2 S.E. 458, 460 (N.C. 1887).
42. Twilley v. Perkins, 26 A. 286, 287 (Md. 1893).
43. Taylor v. Goodwin, 4 Q.B.D. 228 (1879). This decision was incorporated into the statutory definition of carriage in 1889. See ANTHONY BIRD, ROADS AND VEHICLES 42 (1969). Roger Street has traced similar decisions back to 1869 when Liverpool magistrates fined a youth for cycling on a footpath contrary to a prohibition of operating carriages upon such a path. See Roger Street, Persecuted and Prosecuted: Victorian Bicycle and Tricycle Law, 13 THE BONESHAKER 18, 19 (1991). In the mid-1870s, the U.S. Department of Justice had decided that the bicycle was a carriage, according to attorney Charles Pratt. CHARLES E. PRATT, THE AMERICAN BICYCLER 121 (1880).
44. Taylor v. Goodwin, 4 Q.B.D. 228 (1879). This decision was incorporated into the statutory definition of carriage in 1889. See ANTHONY BIRD, ROADS AND VEHICLES 42 (1969). Roger Street has traced similar decisions back to 1869 when Liverpool magistrates fined a youth for cycling on a footpath contrary to a prohibition of operating carriages upon such a path. See Roger Street, Persecuted and Prosecuted: Victorian Bicycle and Tricycle Law, 13 THE BONESHAKER 18, 19 (1991). In the mid-1870s, the U.S. Department of Justice had decided that the bicycle was a carriage, according to attorney Charles Pratt. CHARLES E. PRATT, THE AMERICAN BICYCLER 121 (1880).
45. Taylor v. Goodwin, 4 Q.B.D. 228 (1879). This decision was incorporated into the statutory definition of carriage in 1889. See ANTHONY BIRD, ROADS AND VEHICLES 42 (1969). Roger Street has traced similar decisions back to 1869 when Liverpool magistrates fined a youth for cycling on a footpath contrary to a prohibition of operating carriages upon such a path. See Roger Street, Persecuted and Prosecuted: Victorian Bicycle and Tricycle Law, 13 THE BONESHAKER 18, 19 (1991). In the mid-1870s, the U.S. Department of Justice had decided that the bicycle was a carriage, according to attorney Charles Pratt. CHARLES E. PRATT, THE AMERICAN BICYCLER 121 (1880).
46. DUNHAM, supra note 29, at 245-46.
47. State v. Collins, 17 A. 131, 131 (R.I. 1888).
48. See, e.g., Foote v. American Prod. Co., 45 A. 934, 935 (Pa. 1900).
49. Thompson v. Dodge, 60 N.W. 545, 546, (Minn. 1894).
50. Holland v. Bartch, 22 N.E. 83, 86 (Ind. 1889).
51. Mercer v. Corbin, 20 N.E. 132, 134 (Ind. 1889). According to the New York Law Journal, the Justices were prepared to uphold the trial court's determination that bicycling was a form of pedestrianating and could therefore be performed on the sidewalk. However, after dinner, Judges Coffey and Berkshire were struck by a bicyclist on the sidewalk. They therefore changed their unrendered decision and decided that such sidewalk mishaps would constitute assault and battery. Early Court Decision: Bicycles are Vehicles, BICYCLE USA, Oct. 1984, at 22.
52. Mercer v. Corbin, 20 N.E. 132, 134 (Ind. 1889). According to the New York Law Journal, the Justices were prepared to uphold the trial court's determination that bicycling was a form of pedestrianating and could therefore be performed on the sidewalk. However, after dinner, Judges Coffey and Berkshire were struck by a bicyclist on the sidewalk. They therefore changed their unrendered decision and decided that such sidewalk mishaps would constitute assault and battery. Early Court Decision: Bicycles are Vehicles, BICYCLE USA, Oct. 1984, at 22.
53. Swift v. City of Topeka, 23 P. 1075, 1076 (Kan. 1890).
54. Id. Finding a fundamental right to use the roadways is consistent both with views advocated by bicyclists at this time and with later cases allowing automobiles to use the road. See Charles E. Pratt, Legislation as to Bicycles in Highways, 10 OUTING, May 1887, at 158; EDWARD C. FISHER & ROBERT H. REEDER, VEHICLE TRAFFIC LAW 4 (1974). Bicyclist Karl Kron's ardent desire for roadway access led him to coin the term road hog to describe horse riders as the "Great American Hog . . . in whose mind the mere act of purchasing a horse creates the curious hallucination that he simultaneously purchases an exclusive right to the public highways." M.G. LAY, WAYS OF THE WORLD 143 (1992).
55. Id. Finding a fundamental right to use the roadways is consistent both with views advocated by bicyclists at this time and with later cases allowing automobiles to use the road. See Charles E. Pratt, Legislation as to Bicycles in Highways, 10 OUTING, May 1887, at 158; EDWARD C. FISHER & ROBERT H. REEDER, VEHICLE TRAFFIC LAW 4 (1974). Bicyclist Karl Kron's ardent desire for roadway access led him to coin the term road hog to describe horse riders as the "Great American Hog . . . in whose mind the mere act of purchasing a horse creates the curious hallucination that he simultaneously purchases an exclusive right to the public highways." M.G. LAY, WAYS OF THE WORLD 143 (1992).
56. Id. Finding a fundamental right to use the roadways is consistent both with views advocated by bicyclists at this time and with later cases allowing automobiles to use the road. See Charles E. Pratt, Legislation as to Bicycles in Highways, 10 OUTING, May 1887, at 158; EDWARD C. FISHER & ROBERT H. REEDER, VEHICLE TRAFFIC LAW 4 (1974). Bicyclist Karl Kron's ardent desire for roadway access led him to coin the term road hog to describe horse riders as the "Great American Hog . . . in whose mind the mere act of purchasing a horse creates the curious hallucination that he simultaneously purchases an exclusive right to the public highways." M.G. LAY, WAYS OF THE WORLD 143 (1992).
57. See supra note 34 and accompanying text.
58. See, e.g., Douglas v. Whittaker, 86 N.E.2d 916 (Mass. 1949) ("The right to make use of an automobile as a vehicle of travel along the highways of the state is no longer open to question. . . . The owners thereof have the same rights in the roads and streets as drivers of horses or those riding a bicycle.") (emphasis added).
59. See, e.g., Lawson v. Fordyce, 21 N.W.2d 69, 87 (Iowa 1945) (persons leading animals along road have right to use road).
60. The General Highway Law of the State of New York, cited in GEORGE B. CLEMENTSON, THE ROAD RIGHTS AND LIABILITIES OF WHEELMEN 137 (1895).
61. For a listing of some such statutes, see Note, supra note 27, at 290. Pennsylvania's statute, for example, was passed in 1889 and gave human powered vehicles the same rights and obligations as horse drawn carriages. PA. STAT. ANN., tit. 75, § 2201 (1889). This antiquated language remained in effect until 1976. See PA. STAT. ANN., tit. 75, §§ 3501-07 (1976).
62. ROBERT A. SMITH, A SOCIAL HISTORY OF THE BICYCLE 185 (1972). In contrast to the United States, where cycling became legally protected, many roads in Germany were restricted to bicycles - including nearly half of all the roads in Bavaria. See MCGURN, supra note 1, at 94. In England, the Highways and Locomotives Act of 1878 gave local authorities the power to regulate bicycling. This was replaced by a national code in the Local Government Act of 1888. See Street, supra note 35, at 19-21. In Italy, several cities banned bicycles from city centers or restricted them to low speeds and continuously sounding bells. Other boroughs allowed safety bicycles, but not high wheelers. Such bicycle restrictions sometimes led to political protests. Stefano Privato, The Bicycle as a Political Symbol: Italy, 1885-1955, 7 J. INT'L SPORT HIST. 172 (1990).
63. ROBERT A. SMITH, A SOCIAL HISTORY OF THE BICYCLE 185 (1972). In contrast to the United States, where cycling became legally protected, many roads in Germany were restricted to bicycles - including nearly half of all the roads in Bavaria. See MCGURN, supra note 1, at 94. In England, the Highways and Locomotives Act of 1878 gave local authorities the power to regulate bicycling. This was replaced by a national code in the Local Government Act of 1888. See Street, supra note 35, at 19-21. In Italy, several cities banned bicycles from city centers or restricted them to low speeds and continuously sounding bells. Other boroughs allowed safety bicycles, but not high wheelers. Such bicycle restrictions sometimes led to political protests. Stefano Privato, The Bicycle as a Political Symbol: Italy, 1885-1955, 7 J. INT'L SPORT HIST. 172 (1990).
64. SMITH, supra note 49, at 190.
65. PHILIP P. MASON, THE LEAGUE OF AMERICAN WHEELMEN AND THE GOOD ROADS MOVEMENT 61 (1957). DUNHAM, supra note 29, at 478, also notes that Ohio, Maryland, and Chicopee (Massachusetts) enacted similar laws. See also ISAAC B. POTTER, CYCLE PATHS 75-76 (1898) (quoting New Jersey and New York statutes).
66. PHILIP P. MASON, THE LEAGUE OF AMERICAN WHEELMEN AND THE GOOD ROADS MOVEMENT 61 (1957). DUNHAM, supra note 29, at 478, also notes that Ohio, Maryland, and Chicopee (Massachusetts) enacted similar laws. See also ISAAC B. POTTER, CYCLE PATHS 75-76 (1898) (quoting New Jersey and New York statutes).
67. See DUNHAM, supra note 29, at 478; Potter, supra note 51, at 78-79.
68. As noted in note 29, supra, sidewalk bans began in the boneshaker craze of 1869.
69. Commonwealth v. Forrest, 32 A. 652, 654 (Pa. 1895); Mercer v. Corbin, 20 N.E. at 134; State v. Aldrich 47 A. 602 (N.H. 1900). Bicyclists have been denied recovery for injuries because they have been found contributorily negligent as a matter of law for riding on sidewalks in violation of an ordinance. See Hart v. Town of Brookhaven, 25 N.Y.S.2d 428 (App. Div. 1941); Kenney v. Town of Hampton, 58 A. 1046, 1046 (N.H. 1904).
70. Jones v. City of Williamsburg, 34 S.E. 883 (Va. 1900).
71. Lee v. City of Port Huron, 87 N.W. 637, 637-38 (Mich. 1901).
72. SMITH, supra note 49, at 185.
73. Lechner v. Village of Newark, 44 N.Y.S. 556, 560 (Sup. Ct. 1896).
74. Purple v. Inhabitants of Greenfield, 138 Mass. 1, 5 (1884); Lee v. City of Port Huron, 87 N.W. at 638. Cf. Gagnier v. City of Fargo, 88 N.W. 1030, 1031 (N. D. 1902) (ordinance prohibiting vehicles from sidewalk operation held not to include bicycles where bicycle-specific statutes implicitly allowed such use). PRATT, supra note 35, at 122 n. 1, noted in 1879 that an ordinance in the town of Brookline, Massachusetts allowed "the riding of bicycles on the sidewalk [if] done without inconvenience to foot-passers." Roller skates also are not automatically prohibited from the sidewalk. See also Collins v. City of Philadelphia, 75 A. 1028, 1029 (Pa. 1910).
75. See 7 AM. JUR. Bicycles § 518 (1937)
76. See, e.g., Myers v. Hinds, 68 N.W. 156 (Mich. 1896).
77. See SMITH, supra note 49, at 188; Note, supra note 27, at 296. Similar activities were taking place in Germany. See MCGURN, supra note 1, at 94.
78. Fuller v. Redding, 43 N.Y.S. 96, 98 (App. Div. 1897). See also POTTER, supra note 51 at 69-70.
79. LAY, supra note 43, at 144.
80. See DUNHAM, supra note 29, at 481; see also SMITH, supra note 49, at 216; POTTER, supra note 51, at 72-75.
81. See State v. Bradford, 81 N.W. 202, 203 (Minn. 1899).
82. The Uniform Vehicle Code is a model statute drafted by experts for states to use in creating their own laws.
83. JOHN FORESTER, EFFECTIVE CYCLING 525 (6th ed. 1993). See also PAUL F. HILL, BICYCLE LAW AND PRACTICE 89 (1986). For a case upholding the validity of prohibiting bicycles from interstate highways, see Wherrett v. Doyle, 456 F. Supp. 203, 206 (D. Neb. 1978). In Germany, the legal obligation for cyclists to use bike paths was first passed in 1926 and reiterated in 1935. Volker Briese, From the Bicycle Path to the Compulsory Cycle Track, in 7 CYCLE HISTORY: PROCEEDINGS OF THE 5TH INTERNATIONAL CYCLE HISTORY CONFERENCE 123 (1995).
84. JOHN FORESTER, EFFECTIVE CYCLING 525 (6th ed. 1993). See also PAUL F. HILL, BICYCLE LAW AND PRACTICE 89 (1986). For a case upholding the validity of prohibiting bicycles from interstate highways, see Wherrett v. Doyle, 456 F. Supp. 203, 206 (D. Neb. 1978). In Germany, the legal obligation for cyclists to use bike paths was first passed in 1926 and reiterated in 1935. Volker Briese, From the Bicycle Path to the Compulsory Cycle Track, in 7 CYCLE HISTORY: PROCEEDINGS OF THE 5TH INTERNATIONAL CYCLE HISTORY CONFERENCE 123 (1995).
85. JOHN FORESTER, EFFECTIVE CYCLING 525 (6th ed. 1993). See also PAUL F. HILL, BICYCLE LAW AND PRACTICE 89 (1986). For a case upholding the validity of prohibiting bicycles from interstate highways, see Wherrett v. Doyle, 456 F. Supp. 203, 206 (D. Neb. 1978). In Germany, the legal obligation for cyclists to use bike paths was first passed in 1926 and reiterated in 1935. Volker Briese, From the Bicycle Path to the Compulsory Cycle Track, in 7 CYCLE HISTORY: PROCEEDINGS OF THE 5TH INTERNATIONAL CYCLE HISTORY CONFERENCE 123 (1995).
86. FORESTER, supra note 68, at 528-29.
87. See, e.g., Andrew C. Porter, Comment: Toward a Constitutional Analysis of the Right to Intrastate Travel, 86 NW. U. L. REV. 820 (1992). The right to interstate travel was first believed to arise from the Privileges and Immunities Clause, but recently has been resurrected under the Commerce, Due Process, and Equal Protection Clauses. Id.
88. Jon Walker, Contesting Bicycle Bans: Using the "Right to Travel" and Other Legal Strategies, (undated and unpublished manuscript) (on file with author).
89. 519 N.Y.S.2d 506, 510 (Sup. Ct. 1987).
90. 571 N.Y.S.2d 851 (N.Y. City Crim. Ct. 1991). The court described the necessity defense as "fundamentally a balancing test to determine whether a criminal act was committed to prevent a greater harm. The common elements of the defense . . . include the following: (1) the actor has acted to avoid a grave harm, not of his own making; (2) there are not adequate legal means to avoid the harm; and (3) the harm sought to be avoided is greater than that committed." New York also requires that the harm be imminent and the action be reasonably expected to avert the impending danger. Id. at 853-54.
91. Tom Ruta, Alberta Court Quashes Bicycle Ban, 67 ITE J. 16 (1997).
92. Richardson v. Inhabitants of Danvers, 57 N.E. 688 688 (Mass 1900).
93. Id.
94. Id at 689.
95. See, e.g., Fox v. Clarke, 57 A. 305, 306 (R. I. 1903) and the cases cited therein.
96. See, e.g., Hendry v. Town of North Hampton, 56 A. 922, 924 (N.H. 1903); Lee v. City of Port Huron, 87 N.W. at 638 (sidewalk use).
97. See, e.g., Bethel v. City of St. Joseph, 171 S.W. 42, 43-44 (Mo. Ct. App. 1914).
98. Molway v. City of Chicago, 88 N.E. 485, 490 (Ill. 1909).
99. City of Albuquerque v. Redding, 605 P.2d 1156, 1158 (N. M. 1980).
100. See, e.g., City of Winchester v. Finchum, 301 S.W.2d at 346; Le May v. City of Oconto, 281 N.W. 688, 690 (Wis. 1938); Hill v. Reaves, 139 So. 263, 264 (Ala. 1932); Morrison v. City of Syracuse, 65 N.Y.S. 939-940 (App. Div. 1900), aff'd, 67 N.E. 1085 (N.Y. 1903); Wheeler v. Boone, 78 N.W. 909, 910 (Iowa 1899).
101. See e.g., Winchester v. Finchum, 301 S.W.2d at 344-45; Le May v. City of Oconto, 281 N.W. at 690; Lee v. City of Port Huron, 87 N.W. at 638. Accord, Guidi v. Town of Great Barrington, 172 N.E. 916, 916 (Mass. 1930) (2-4 inch difference in the height of sidewalk blocks not so slight as not to constitute a defect as a matter of law).
102. See Tobin, supra note 9, at 843; SMITH, supra note 49, at 221.
103. See LAY, supra note 43, at 189. Similarly, in the United Kingdom, the Bicycle Union started marking hazardous roads in 1883 with a standardized metal sign stating "dangerous road." This effort was joined by the Cyclist Touring Club in 1887 and in 1903, the Motor Car Act authorized county councils to create road signs. SERENA BEELEY, A HISTORY OF BICYCLES : FROM HOBBY HORSE TO MOUNTAIN BIKES 37 (1992). PATRICK ROBERTSON, THE BOOK OF FIRSTS 41 (1982), reports the first Bicycle Union traffic sign was erected in December 1879 followed by the first municipal warning sign (obtained from the Bicycle Union) in October 1881.
104. See LAY, supra note 43, at 189. Similarly, in the United Kingdom, the Bicycle Union started marking hazardous roads in 1883 with a standardized metal sign stating "dangerous road." This effort was joined by the Cyclist Touring Club in 1887 and in 1903, the Motor Car Act authorized county councils to create road signs. SERENA BEELEY, A HISTORY OF BICYCLES : FROM HOBBY HORSE TO MOUNTAIN BIKES 37 (1992). PATRICK ROBERTSON, THE BOOK OF FIRSTS 41 (1982), reports the first Bicycle Union traffic sign was erected in December 1879 followed by the first municipal warning sign (obtained from the Bicycle Union) in October 1881.
105. For a thorough discussion of bicyclists' dominant role in the early Good Roads movement, see MASON, supra note 51. Bicyclists in Great Britain obtained an 85% increase in roadway expenditures between 1890 and 1902. See Bird supra note 35, at 63-64.
106. Demand for the control of cyclist behavior came not only from other roadway users, but also husbands! Husbands soon learned that they could not prevent their wives from purchasing a bicycle with their own money, riding it or even wearing pants when doing so. See Legal Wrinkles for Wheelmen and Wheelwomen, Wives on Wheels, 22 THE HUB 705 (Sept. 30, 1899), cited in SARAH JANE ROTH, THE BICYCLE'S ROLE IN THE WOMEN'S MOVEMENT FOR SOCIAL EQUALITY AND FASHION REFORM IN BRITAIN 1880-1918 (1997) (unpublished M.A. thesis, Washington University) (on file with author).
107. Demand for the control of cyclist behavior came not only from other roadway users, but also husbands! Husbands soon learned that they could not prevent their wives from purchasing a bicycle with their own money, riding it or even wearing pants when doing so. See Legal Wrinkles for Wheelmen and Wheelwomen, Wives on Wheels, 22 THE HUB 705 (Sept. 30, 1899), cited in SARAH JANE ROTH, THE BICYCLE'S ROLE IN THE WOMEN'S MOVEMENT FOR SOCIAL EQUALITY AND FASHION REFORM IN BRITAIN 1880-1918 (1997) (unpublished M.A. thesis, Washington University) (on file with author).
108. For an amusing selection of behavioral rules involving bicycling but only peripherally related to safety, including rules concerning bicycling and eating, drinking, proper dress, and romance, see Robert W. Pelton, The Letter of the Law, BIKE REPORT 8 (July 1987). See also DICK HYMAN, THE TRENTON PICKLE ORDINANCE AND OTHER BONEHEAD LEGISLATION 19 (1976) ("It is illegal for anyone to ride his or her bicycle backwards on the main streets of Forgan, Oklahoma. In Santa Ana, California, it is unlawful to pass a fire truck while riding a bicycle.")
109. For an amusing selection of behavioral rules involving bicycling but only peripherally related to safety, including rules concerning bicycling and eating, drinking, proper dress, and romance, see Robert W. Pelton, The Letter of the Law, BIKE REPORT 8 (July 1987). See also DICK HYMAN, THE TRENTON PICKLE ORDINANCE AND OTHER BONEHEAD LEGISLATION 19 (1976) ("It is illegal for anyone to ride his or her bicycle backwards on the main streets of Forgan, Oklahoma. In Santa Ana, California, it is unlawful to pass a fire truck while riding a bicycle.")
110. Taylor v. Goodwin, 4 Q.B. Div. 228 (1879). The challenge of how to apply a vague speed restriction to cyclists continues to this day. See People v. Fong, 21 Cal. Rptr.2d 907, 908 (Cal. App. Ct. 1993) (cyclist convicted for traveling 49 mph in violation of a statute prohibiting traveling at speeds too fast for conditions).
111. Mercer v. Corbin, 20 N.E. 132, 134 (Ind. 1889).
112. Robertson v. Pennsylvania R.R. Co., 36 A. 403, 403-04 (Pa. 1897). Similarly, when a cyclist was injured by trying to pass a wagon on the left and colliding with an oncoming carriage, the Supreme Court of Rhode Island reversed a lower court decision, finding the cyclist to be negligent and the cause of the accident. Pick v. Thurston, 54 A. 600-602 (R.I. 1903). Tandemists who made a sudden turn in front of a horse drawn street car were denied recovery since they failed to signal their intent to turn. Lurie v. Metropolitan St. Ry. Co., 40 N.Y.S. 1129, 1130-31 (Sup. Ct. 1896).
113. DUNHAM, supra note 29, at 475. In Britain, an 1865 statute, the so-called "Red Flag Act," kept speed limits to the pace of walking (4 mph in the country; 2 mph in the city) and required road locomotives to be accompanied by a person ahead and a person behind carrying red flags. Bicyclists lobbied and persuaded Parliament to raise the speed limit to 20 km/h and not require attendants. LAY, supra note 43, at 194 and BIRD, supra note 35, at 41-42.
114. SMITH, supra note 49, at 202.
115. 54 L.R.A. 640 (1901).
116. Id. at 641.
117. SMITH, supra note 49, at 193.
118. Id. at 200. In 1888, Great Britain required all bicyclists to sound a bell continuously while in motion. BIRD, supra note 35, at 42.
119. DUNHAM, supra note 29, at 475.
120. SMITH, supra note 49, at 202. Cf. FLA. STAT. ch. 316.2065 (1993) (Florida still requires that one hand be placed on the handlebars while cycling).
121. 68 N.W. at 156.
122. Note, supra note 27, at 295.
123. SMITH, supra note 49, at 184.
124. Id. at 11.
125. Id. at 183-84.
126. See e.g., Holland v. Bartch, 22 N.E. at 85 ("[I]t must be supposed that horses of ordinary gentleness become so familiar with [bicycles] as not to scare at and as to be safe when under careful guidance."). One commentator has described such rulings as "something akin to equine contributory fault." Mary C. McNeely, A Footnote on Dangerous Animals, 37 MICH. L. REV. 1181, 1189 (1939). In fact, the courts developed an objective standard of equine behavior comparable to the reasonable man standard in tort law first enunciated in Vaughn v. Menlove, 132 Eng. Rep. 490 (1738). The "horse of ordinary gentleness" standard dates back at least to 1816. See Macomber v. Nichols, 34 Mich. 212 (1816). This "reasonable horse" standard has even been applied by the U.S. Supreme Court. See District of Columbia v. Moulton, 182 U.S. 576, 579 (1901). Treating animals in an anthropomorphic manner dates back to ancient times when animals were actually prosecuted for crimes such as murder that they might commit. See e.g., Frank A. Beach, Beasts Before the Bar, in ANTS,INDIANS AND LITTLE DINOSAURS (Alan Ternes ed. 1950); E. P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS (1906); Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times, 64 U. PA. L. REV. 696 (1916); S. BARING-GOULD, CURIOSITIES OF OLDEN TIMES (1896). Consistent with these ancient cases, some courts appear to actually be chastising the horse in their opinions as if the horse could read. See, e.g., Scribner v. Kelly, 38 Barb. 14 (N.Y. App. Div. 1862) ("The injury which resulted from [the horse's] fright is more fairly attributed to a lack of ordinary courage and discipline in himself than to the fact that the object which he saw was an elephant."). Not all cases involving horses evoke this standard of equine behavior. Some simply rely on the bicyclist's equal right to use the roadway. See, e.g., Thompson v. Dodge, 60 N.W. 545, 546 (Minn. 1894).
127. See e.g., Holland v. Bartch, 22 N.E. at 85 ("[I]t must be supposed that horses of ordinary gentleness become so familiar with [bicycles] as not to scare at and as to be safe when under careful guidance."). One commentator has described such rulings as "something akin to equine contributory fault." Mary C. McNeely, A Footnote on Dangerous Animals, 37 MICH. L. REV. 1181, 1189 (1939). In fact, the courts developed an objective standard of equine behavior comparable to the reasonable man standard in tort law first enunciated in Vaughn v. Menlove, 132 Eng. Rep. 490 (1738). The "horse of ordinary gentleness" standard dates back at least to 1816. See Macomber v. Nichols, 34 Mich. 212 (1816). This "reasonable horse" standard has even been applied by the U.S. Supreme Court. See District of Columbia v. Moulton, 182 U.S. 576, 579 (1901). Treating animals in an anthropomorphic manner dates back to ancient times when animals were actually prosecuted for crimes such as murder that they might commit. See e.g., Frank A. Beach, Beasts Before the Bar, in ANTS,INDIANS AND LITTLE DINOSAURS (Alan Ternes ed. 1950); E. P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS (1906); Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times, 64 U. PA. L. REV. 696 (1916); S. BARING-GOULD, CURIOSITIES OF OLDEN TIMES (1896). Consistent with these ancient cases, some courts appear to actually be chastising the horse in their opinions as if the horse could read. See, e.g., Scribner v. Kelly, 38 Barb. 14 (N.Y. App. Div. 1862) ("The injury which resulted from [the horse's] fright is more fairly attributed to a lack of ordinary courage and discipline in himself than to the fact that the object which he saw was an elephant."). Not all cases involving horses evoke this standard of equine behavior. Some simply rely on the bicyclist's equal right to use the roadway. See, e.g., Thompson v. Dodge, 60 N.W. 545, 546 (Minn. 1894).
128. See e.g., Holland v. Bartch, 22 N.E. at 85 ("[I]t must be supposed that horses of ordinary gentleness become so familiar with [bicycles] as not to scare at and as to be safe when under careful guidance."). One commentator has described such rulings as "something akin to equine contributory fault." Mary C. McNeely, A Footnote on Dangerous Animals, 37 MICH. L. REV. 1181, 1189 (1939). In fact, the courts developed an objective standard of equine behavior comparable to the reasonable man standard in tort law first enunciated in Vaughn v. Menlove, 132 Eng. Rep. 490 (1738). The "horse of ordinary gentleness" standard dates back at least to 1816. See Macomber v. Nichols, 34 Mich. 212 (1816). This "reasonable horse" standard has even been applied by the U.S. Supreme Court. See District of Columbia v. Moulton, 182 U.S. 576, 579 (1901). Treating animals in an anthropomorphic manner dates back to ancient times when animals were actually prosecuted for crimes such as murder that they might commit. See e.g., Frank A. Beach, Beasts Before the Bar, in ANTS,INDIANS AND LITTLE DINOSAURS (Alan Ternes ed. 1950); E. P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS (1906); Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times, 64 U. PA. L. REV. 696 (1916); S. BARING-GOULD, CURIOSITIES OF OLDEN TIMES (1896). Consistent with these ancient cases, some courts appear to actually be chastising the horse in their opinions as if the horse could read. See, e.g., Scribner v. Kelly, 38 Barb. 14 (N.Y. App. Div. 1862) ("The injury which resulted from [the horse's] fright is more fairly attributed to a lack of ordinary courage and discipline in himself than to the fact that the object which he saw was an elephant."). Not all cases involving horses evoke this standard of equine behavior. Some simply rely on the bicyclist's equal right to use the roadway. See, e.g., Thompson v. Dodge, 60 N.W. 545, 546 (Minn. 1894).
129. See e.g., Holland v. Bartch, 22 N.E. at 85 ("[I]t must be supposed that horses of ordinary gentleness become so familiar with [bicycles] as not to scare at and as to be safe when under careful guidance."). One commentator has described such rulings as "something akin to equine contributory fault." Mary C. McNeely, A Footnote on Dangerous Animals, 37 MICH. L. REV. 1181, 1189 (1939). In fact, the courts developed an objective standard of equine behavior comparable to the reasonable man standard in tort law first enunciated in Vaughn v. Menlove, 132 Eng. Rep. 490 (1738). The "horse of ordinary gentleness" standard dates back at least to 1816. See Macomber v. Nichols, 34 Mich. 212 (1816). This "reasonable horse" standard has even been applied by the U.S. Supreme Court. See District of Columbia v. Moulton, 182 U.S. 576, 579 (1901). Treating animals in an anthropomorphic manner dates back to ancient times when animals were actually prosecuted for crimes such as murder that they might commit. See e.g., Frank A. Beach, Beasts Before the Bar, in ANTS,INDIANS AND LITTLE DINOSAURS (Alan Ternes ed. 1950); E. P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS (1906); Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times, 64 U. PA. L. REV. 696 (1916); S. BARING-GOULD, CURIOSITIES OF OLDEN TIMES (1896). Consistent with these ancient cases, some courts appear to actually be chastising the horse in their opinions as if the horse could read. See, e.g., Scribner v. Kelly, 38 Barb. 14 (N.Y. App. Div. 1862) ("The injury which resulted from [the horse's] fright is more fairly attributed to a lack of ordinary courage and discipline in himself than to the fact that the object which he saw was an elephant."). Not all cases involving horses evoke this standard of equine behavior. Some simply rely on the bicyclist's equal right to use the roadway. See, e.g., Thompson v. Dodge, 60 N.W. 545, 546 (Minn. 1894).
130. See e.g., Holland v. Bartch, 22 N.E. at 85 ("[I]t must be supposed that horses of ordinary gentleness become so familiar with [bicycles] as not to scare at and as to be safe when under careful guidance."). One commentator has described such rulings as "something akin to equine contributory fault." Mary C. McNeely, A Footnote on Dangerous Animals, 37 MICH. L. REV. 1181, 1189 (1939). In fact, the courts developed an objective standard of equine behavior comparable to the reasonable man standard in tort law first enunciated in Vaughn v. Menlove, 132 Eng. Rep. 490 (1738). The "horse of ordinary gentleness" standard dates back at least to 1816. See Macomber v. Nichols, 34 Mich. 212 (1816). This "reasonable horse" standard has even been applied by the U.S. Supreme Court. See District of Columbia v. Moulton, 182 U.S. 576, 579 (1901). Treating animals in an anthropomorphic manner dates back to ancient times when animals were actually prosecuted for crimes such as murder that they might commit. See e.g., Frank A. Beach, Beasts Before the Bar, in ANTS,INDIANS AND LITTLE DINOSAURS (Alan Ternes ed. 1950); E. P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT OF ANIMALS (1906); Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times, 64 U. PA. L. REV. 696 (1916); S. BARING-GOULD, CURIOSITIES OF OLDEN TIMES (1896). Consistent with these ancient cases, some courts appear to actually be chastising the horse in their opinions as if the horse could read. See, e.g., Scribner v. Kelly, 38 Barb. 14 (N.Y. App. Div. 1862) ("The injury which resulted from [the horse's] fright is more fairly attributed to a lack of ordinary courage and discipline in himself than to the fact that the object which he saw was an elephant."). Not all cases involving horses evoke this standard of equine behavior. Some simply rely on the bicyclist's equal right to use the roadway. See, e.g., Thompson v. Dodge, 60 N.W. 545, 546 (Minn. 1894).
131. See FISHER & REEDER, supra note 43, at 20. In some German provinces during the 1890s, cyclists under the age of 14 could not ride without a certificate of competence, issued by the police. Cyclists under the age of 18 needed a similar document signed by their employer or a magistrate. See MCGURN, supra note 1, at 94.
132. See SMITH, supra note 49, at 199.
133. Id. at 224-25.
134. See DUNHAM, supra note 29, at 481. In the German province of Lubek, beginning in 1890, cyclists were issued number plates to show they had paid taxes used for cycle path construction. Briese, supra note 68. Similarly, the New York Times reported that as of May 1, 1899, bicycles ridden in France must display a number badge in the front to show the payment of fees and taxes. France's Badge Law, N. Y. TIMES, March 5, 1899 at 9. According to LAY, supra note 43 at 178, a 1901 New York State statute first required automobile "license plates" by mandating that car owners prominently display their initials.
135. Conflicting Laws, RECREATION, July 1898, at 68.
136. Id. (lists West Virginia as the first state with a state-wide bicycle law followed by New York in 1898). DUNHAM, supra note 29, at 475 says Connecticut was first with a state-wide speed limit of 10 mph with West Virginia and New York enacting state-wide laws in 1898 and 1899 respectively. POTTER, supra note 51, at 77, notes that New Jersey's 1886 law allowed, but did not mandate that localities enact specified bicycle regulations such as sidewalk restrictions and light and bell requirements.
137. See Paul F. Hill, Bicycle Traffic Law, in GREEN ET AL., supra note 4, at 419, 442.
138. Id. at 443-444.
139. See Santalucia v. County of Broome, 613 N.Y.S.2d 774, 776 (App. Div. 1994).
140. NYE, supra note 10, at 149-50.
141. Joe Kita, How Cycling Lost Its Piece of the Rock, BICYCLING, July 1986, at 14.
142. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
143. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
144. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
145. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
146. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
147. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
148. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
149. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994)
150. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
151. Randy Swart, Mandatory Helmet Laws: A Summary, in 14 THE HELMET UPDATE, September 1996, at 4. See also CAL. VEH. CODE § 21212 (West 1995) (bicyclists under age 18 must wear helmets); 1993 CONN. ACTS 292 (Reg. Sess.) (bicycle riders under the age of 12 must wear an approved helmet; bicycle rental dealers must rent a helmet to riders 16 and under); GA. CODE ANN. § 40-6-296 (1994) (bicyclists in Georgia below the age of 16 must wear helmets); MASS. ANN. LAWS ch. 85, § 11B (1994) (bicyclists under age 12 must wear helmets); N.J. STAT. ANN. 39:4-10.1 (West 1993) (bicyclists under the age of 14 must wear helmets); N.Y. VEH. & TR. Law § 1238 (McKinney 1994) (bicyclists under age 14 must wear helmets); OR. REV. STAT. § 815.400 (1994) (bicyclists under age 17 must wear helmets); TENN. CODE ANN. § 55-52-104 (1994) (bicyclists below age 12 must wear helmets). Federal encouragement of mandatory child bicycle helmet laws comes from Title II of the Child Safety Protection Act, 103 P.L. 267, 108 Stat. 722 (1994). Title II, Children's Bicycle Helmet Safety, authorizes federal grants for up to 80% of the costs of programs that encourage or require bicycle helmet use by children. It also requires the Consumer Product Safety Commission to enact a safety standard for bicycle helmets that addresses the risks to children and the risk of helmets coming off the heads of bicycle riders. The final rule was issued as this issue went to press. See Consumer Product Safety Commission, CPSC Issues New Safety Standard for Bike Helmets, Release No. 98-062 (Feb. 5, 1998) (to be codified at 16 C.F.R. Part 1203).
152. See E.A. Waters, Should Pedal Cyclists Wear Helmets? A Comparison of Head Injuries Sustained by Pedal Cyclists and Motorcyclists in Road Traffic Accidents, 17 INJURY 372 (1986).
153. Mandatory Helmet Laws Pick Up Speed, THE HELMET UPDATE, June 1993, at 1.
154. D.L. Robinson, Head Injuries and Bicycle Helmet Laws, 28 ACCIDENT ANALYSIS AND PREVENTION 463-64 (1996).
155. Id. at 473-74.
156. 818 P.2d 1190, 1197 (Mont. 1991).
157. 1995 U.S. App. LEXIS 3385, at *1-2 (1st Cir. 1995).
158. Dubicki v. Auster, No. 107712, 1996 Conn. Super. LEXIS 671, at *3-5 (Conn. Super. Ct. March 7, 1996). Courts in other jurisdictions have found unhelmeted riders of mopeds and motorcycles to be negligent. See e.g., the British case of Capps v. Miller, 2 All ER 333 (1989) (compensation reduced 10% for failure by moped rider to wear a helmet), Oldakowski v. Heyen, No. 87-0988, 1988 Wisc. App. LEXIS 572, at *3-4 (Wis. Ct. App. May 19, 1988); Halvorson v. Voeller, 336 N.W.2d 118-119 (N.D. 1983); Clay P. Graham, Helmetless Motorcyclists - Easy Riders Facing Hard Facts: The Rise of the "Motorcyclist Helmet Defense," 41 OHIO ST. L. J. 233 (1980).
159. Carl Bianchi & John Schubert, Controversy in the Great Potato: Idaho's New Rolling Stop Law, BICYCLING, March 1983, at 192. See IDAHO CODE § 49720 (1993).
160. Carl Bianchi & John Schubert, Controversy in the Great Potato: Idaho's New Rolling Stop Law, BICYCLING, March 1983, at 192. See IDAHO CODE § 49720 (1993).
161. See e.g., CAL. VEH. CODE § 27400 (Deering 1994); DEL. CODE ANN. tit. 21, § 41984 (1993); MD. CODE ANN., TRANSP. I. § 21-1210 (1997).
162. See e.g., CAL. VEH. CODE § 27400 (Deering 1994); DEL. CODE ANN. tit. 21, § 41984 (1993); MD. CODE ANN., TRANSP. I. § 21-1210 (1997).
163. See e.g., CAL. VEH. CODE § 27400 (Deering 1994); DEL. CODE ANN. tit. 21, § 41984 (1993); MD. CODE ANN., TRANSP. I. § 21-1210 (1997).
164. See In re Uncle Ben's Inc., 89 F.T.C. 131 (1977) (consent order prohibiting depiction of unsupervised children near active gas stove).
165. See In re Mego Int'l, 92 F.T.C. 186 (1978) (consent order prohibiting depiction of using electric hair dryer to dry doll's hair near water).
166. 86 F.T.C. 831 (1975).
167. 96 F.T.C. 757 (1980).
168. 95 F.T.C. 310 (1980). See also In re Benton & Bowles, Inc., 96 F.T.C. 619 (1980) (consent agreement prohibiting AMF's advertising agency from depicting such dangerous behavior in its advertisements).
169. General Bicycle & Moped Co., Inc., NAD Case Report 22 (July 18, 1988).
170. 553 So.2d 163 (Fla. 1989).
171. Id. at 166-67.
172. Marilyn Sipes, The Mountain Dew Decision is Hard to Swallow: Sakon v. Pepsico, Inc., 11 LOY. ENT. L. J. 159 (1991).
173. WALL ST. J., Feb. 11, 1987, at 29; LEGAL TIMES OF WASHINGTON, Jan. 22, 1987, at 1. See also Gregory Rodgers, The Effectiveness of Helmets in Reducing All-Terrain Vehicle Injuries and Deaths, 22 ACCIDENT ANALYSIS & PREVENTION 47 (1990) (1100 ATV fatalities and 400,000 emergency room-treated injuries since 1982).
174. WALL ST. J., Feb. 11, 1987, at 29; LEGAL TIMES OF WASHINGTON, Jan. 22, 1987, at 1. See also Gregory Rodgers, The Effectiveness of Helmets in Reducing All-Terrain Vehicle Injuries and Deaths, 22 ACCIDENT ANALYSIS & PREVENTION 47 (1990) (1100 ATV fatalities and 400,000 emergency room-treated injuries since 1982).
175. WALL ST. J., Feb. 11, 1987, at 29; LEGAL TIMES OF WASHINGTON, Jan. 22, 1987, at 1. See also Gregory Rodgers, The Effectiveness of Helmets in Reducing All-Terrain Vehicle Injuries and Deaths, 22 ACCIDENT ANALYSIS & PREVENTION 47 (1990) (1100 ATV fatalities and 400,000 emergency room-treated injuries since 1982).
176. The Consumer Product Safety Commission and the Department of Justice announced a settlement of a lawsuit to recall all three wheeled ATVs. The settlement called for a ban of all future sales of three wheeled ATVs but has been criticized as too lenient. NAT'L L. J., May 2, 1988 at 8.
177. Paul F. Hill, Products Liability, in GREEN, ET AL., supra note 4, at 455.
178. Id. at 459-60.
179. 111 N.E. 1050, 1053 (N.Y. 1916).
180. See Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 83 (N.J 1960), and Larsen v. General Motors Corp., 391 F.2d 495, 504-05 (8th Cir. 1968), respectively. The bicycle has played a small role in limiting the doctrine of "crashworthiness" which was applied against a car manufacturer for injuries to a motorcycle rider who collided with the car so that ornamentation on the wheel covers made the injuries more severe. A pedestrian case and later bicyclist case refused to extend this doctrine to collisions with stationary cars. See Note, The Automobile Manufacturer's Liability to Pedestrians for Exterior Design: New Dimensions in "Crashworthiness" 71 MICH. L. REV. 1654, 1663, 1666-69 (1973).
181. Perhaps the earliest such enactment occurred in 1880 when the Aldermen of Brooklyn repealed their ban on bicycles and replaced it with the requirement that bicycles use lights at night. See DUNHAM, supra note 29, at 273. In 1888, a British regulation required that a bell be sounded continuously while a bicycle was in motion. See LAY, supra note 43, at 143.
182. SMITH, supra note 49, at 201. DUNHAM, supra note 29, at 473, notes that as late as 1899, Boston had no light requirement and a Connecticut law only required lights on rubber-tired vehicles because people could not hear their approach. Great Britain passed a statute requiring bells and lights at night in 1888. BIRD, supra note 35, at 42. In June 1898, Tokyo also passed an ordinance requiring bicycles to have bells or horns to be used on streets and vehicles to have lamps when operated at night. The latter requirement led to the origin of well known electric equipment manufacturers. Tsuneyushi Takeruchi, The Formation of the Japanese Bicycle Industry: A Preliminary Analysis of the Infrastructure of the Japanese Machine Industry, UN UNIVERSITY PROJECT IN TECHNOLOGY TRANSFER, TRANSFORMATION, AND DEVELOPMENT: THE JAPANESE EXPERIENCE, Working Paper 16 (1981).
183. DUNHAM, supra note 29, at 200-01.
184. Id. at 201-02.
185. See e.g., City of Des Moines v. Keller, 88 N.W. 827, 828 (Iowa 1902).
186. See Cook v. Fogarty, 72 N.W. 677, 679-80 (Iowa 1897). More recently, a court allowed the jury to determine whether a minor had the mental capacity to understand and comply with a statute requiring an audible signaling device. See Burgbacher v. Lazar, 468 N.Y.S.2d 14, 15 (App. Div. 1983).
187. Compare Chandler v. Nolen, 359 S.W.2d 591, 593 (Tenn. Ct. App. 1961) (fourteen year old cyclist negligent per se for nighttime riding without light in violation of statute) with Karim v. Grover, 369 S.E.2d 185, 187-88 (Va. 1988) (lightless cyclist not barred from recovery unless negligence proximately caused the accident).
188. See, e.g., Chandler v. Nolen, 359 S.W.2d at 595-96; Bechstein v. Sayler, 179 N.E. 581, 582 (Ind. App. 1932). See generally Hill, supra note 112, at 430-37.
189. See, e.g., Burt v. Becker, 497 S.W.2d 411, 414 (Mo. 1973); L'Hoste v. Ciravola, 261 So.2d 238, 240-41 (La. Ct. App. 1972); White v. Employers Liability Assur. Corp., 210 So.2d 580, 584 (La. Ct. App. 1968). Cf. Poppell v. Waters, 190 S.E.2d 815, 817 (Ga. Ct. App. 1972) (manufacturer and dealer not liable for selling bike without light because its unsuitability for riding at night was obvious).
190. SMITH, supra note 49, at 202.
191. Moore v. District of Columbia, 41 L.R.A. 208, 210 (1898).
192. See RALPH NADER, UNSAFE AT ANY SPEED (1965); National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1392 (repealed 1994).
193. Most of this regulation became effective on May 11, 1976. Four subsections became effective on November 13, 1976. On June 1, 1977, a federal court remanded four provisions for reconsideration and those four provisions were subsequently deleted. 16 C.F.R. § 1512 (1985).
194. See FEDERAL HIGHWAY ADMIN., NATIONAL BICYCLING AND WALKING STUDY: CASE STUDY NO. 13 - A SYNTHESIS OF EXISTING BICYCLIST AND PEDESTRIAN RELATED LAWS AND ENFORCEMENT PROGRAMS 30-31 (1993). See also Ross D. Petty, Regulatory Standards, in GREEN ET AL., supra note 4, at 463-473
195. See FEDERAL HIGHWAY ADMIN., NATIONAL BICYCLING AND WALKING STUDY: CASE STUDY NO. 13 - A SYNTHESIS OF EXISTING BICYCLIST AND PEDESTRIAN RELATED LAWS AND ENFORCEMENT PROGRAMS 30-31 (1993). See also Ross D. Petty, Regulatory Standards, in GREEN ET AL., supra note 4, at 463-473
196. MONT. CODE ANN. § 61-8-607 (1993).
197. See Schwartz, supra note 19, at 48-55.
198. U. S. CONSUMER PROD. SAFETY COMM'N., ANNUAL REPORT 22 (1982).
199. U.S. CONSUMER PROD. SAFETY COMM'N., supra note 7, at 19 ($2 million for each death totaling $2 billion annually and about $6 billion annually for medically treated injuries).
200. PRESIDENT'S COMM'N. ON PROD. SAFETY, FINAL REPORT 18-20 (1970).
201. Bicycles, Proposed Classification as Banned Hazardous Substance, 38 Fed. Reg. 12,300 (1973).
202. Id. at 12,300.
203. BUREAU OF PROD. SAFETY, STAFF ANALYSIS OF BICYCLE ACCIDENTS AND INJUIRES (March 24, 1972).
204. See 39 Fed. Reg. 26,100 (1974), 40 Fed. Reg. 25,480 (1975), and 40 Fed. Reg. 52,815 (1975), respectively.
205. See 39 Fed. Reg. 26,100 (1974), 40 Fed. Reg. 25,480 (1975), and 40 Fed. Reg. 52,815 (1975), respectively.
206. See 39 Fed. Reg. 26,100 (1974), 40 Fed. Reg. 25,480 (1975), and 40 Fed. Reg. 52,815 (1975), respectively.
207. Gregory Rodgers, Reducing Bicycle Accidents: A Reevaluation of the Impacts of the CPSC Bicycle Standard and Helmet Use, 11 J. PROD. LIAB. 307, 316 (1988).
208. J. FLORA ET AL., EXTENSION OF THE NEISS DATA ANALYSIS INCLUDING CPSC IN-DEPTH REPORTS OF BICYCLE-ASSOCIATED ACCIDENTS 21 (1977).
209. J. KAPLAN, CHARACTERISTICS OF THE REGULAR ADULT BICYCLE USER 51 (1975). See also VIRGINIA DEP'T OF HIGHWAYS & TRANSP., PLANNING AND DESIGN OF BIKEWAYS (1974). Bicycle defects were contributing factors in less than 3% of all bicycle-motor vehicle accidents and a survey of children bicyclists between April and September 1983 in the Emergency Department of Children's Hospital of Philadelphia found that they reported only 3% of all accidents occurred because of equipment failure. However, the bicycle was known to be in need of repair by the child or caretaker in 24% of the cases. Selbst et al., Bicycle-Related Injuries, 141 AM. J. DISEASE IN CHILDREN 140, 141 (1987).
210. J. KAPLAN, CHARACTERISTICS OF THE REGULAR ADULT BICYCLE USER 51 (1975). See also VIRGINIA DEP'T OF HIGHWAYS & TRANSP., PLANNING AND DESIGN OF BIKEWAYS (1974). Bicycle defects were contributing factors in less than 3% of all bicycle-motor vehicle accidents and a survey of children bicyclists between April and September 1983 in the Emergency Department of Children's Hospital of Philadelphia found that they reported only 3% of all accidents occurred because of equipment failure. However, the bicycle was known to be in need of repair by the child or caretaker in 24% of the cases. Selbst et al., Bicycle-Related Injuries, 141 AM. J. DISEASE IN CHILDREN 140, 141 (1987).
211. J. KAPLAN, CHARACTERISTICS OF THE REGULAR ADULT BICYCLE USER 51 (1975). See also VIRGINIA DEP'T OF HIGHWAYS & TRANSP., PLANNING AND DESIGN OF BIKEWAYS (1974). Bicycle defects were contributing factors in less than 3% of all bicycle-motor vehicle accidents and a survey of children bicyclists between April and September 1983 in the Emergency Department of Children's Hospital of Philadelphia found that they reported only 3% of all accidents occurred because of equipment failure. However, the bicycle was known to be in need of repair by the child or caretaker in 24% of the cases. Selbst et al., Bicycle-Related Injuries, 141 AM. J. DISEASE IN CHILDREN 140, 141 (1987).
212. J. FLORA ET AL., supra note 167, at 21.
213. Kenneth Cross' study of bicycle/motor vehicle accidents found that brakes had the highest frequency of alleged contribution to bicycle/motor vehicle accidents. This problem was reported to be a contributory factor in 6% of the accidents studied. KENNETH CROSS, BICYCLE SAFETY EDUCATION - FACTS AND ISSUES 36-7 (1978).
214. But see Wesley A. Mogat & Michael J. Moore, Consumer Product Safety Regulation in the United States and the United Kingdom: The Case of Bicycles, 27 RAND J. ECON. 148, 161 (1996) (The U. S. Standard decreased the bicycle accident rate by .5% for every 1% increase in compliance with the standard). The C.P.S.C. cites the working paper version of this article as stating that bicycle injury rates would have been 25-30% higher without the standard. See Consumer Prod. Safety Comm'n, C.P.S.C. Mandatory Bicycle Safety Standards Reduce Injuries: Continued Work With Industry to Make Bike Riding Safer (May 5, 1996). However, in the published version of this study, the authors admit that extrapolations to 100% compliance give "an unreasonably large effect," 28 RAND J. ECON. at 161, n. 19. The flaw in this study is that while it notes helmets were not significantly used during its timeframe, the study fails to account for other factors that would reduce bicycle injury rates. An earlier study examining fatality rates found a strong correlation between pedestrian fatality rates and those for cyclists. This factor overwhelmed any effects of the CPSC standard on helmet use. Petty, supra note 20 at 105. Thus efforts that make roadway use safer for pedestrians (e.g., restrictions on drunk driving) during this time period also make roadway use safer for cyclists.
215. But see Wesley A. Mogat & Michael J. Moore, Consumer Product Safety Regulation in the United States and the United Kingdom: The Case of Bicycles, 27 RAND J. ECON. 148, 161 (1996) (The U. S. Standard decreased the bicycle accident rate by .5% for every 1% increase in compliance with the standard). The C.P.S.C. cites the working paper version of this article as stating that bicycle injury rates would have been 25-30% higher without the standard. See Consumer Prod. Safety Comm'n, C.P.S.C. Mandatory Bicycle Safety Standards Reduce Injuries: Continued Work With Industry to Make Bike Riding Safer (May 5, 1996). However, in the published version of this study, the authors admit that extrapolations to 100% compliance give "an unreasonably large effect," 28 RAND J. ECON. at 161, n. 19. The flaw in this study is that while it notes helmets were not significantly used during its timeframe, the study fails to account for other factors that would reduce bicycle injury rates. An earlier study examining fatality rates found a strong correlation between pedestrian fatality rates and those for cyclists. This factor overwhelmed any effects of the CPSC standard on helmet use. Petty, supra note 20 at 105. Thus efforts that make roadway use safer for pedestrians (e.g., restrictions on drunk driving) during this time period also make roadway use safer for cyclists.
216. But see Wesley A. Mogat & Michael J. Moore, Consumer Product Safety Regulation in the United States and the United Kingdom: The Case of Bicycles, 27 RAND J. ECON. 148, 161 (1996) (The U. S. Standard decreased the bicycle accident rate by .5% for every 1% increase in compliance with the standard). The C.P.S.C. cites the working paper version of this article as stating that bicycle injury rates would have been 25-30% higher without the standard. See Consumer Prod. Safety Comm'n, C.P.S.C. Mandatory Bicycle Safety Standards Reduce Injuries: Continued Work With Industry to Make Bike Riding Safer (May 5, 1996). However, in the published version of this study, the authors admit that extrapolations to 100% compliance give "an unreasonably large effect," 28 RAND J. ECON. at 161, n. 19. The flaw in this study is that while it notes helmets were not significantly used during its timeframe, the study fails to account for other factors that would reduce bicycle injury rates. An earlier study examining fatality rates found a strong correlation between pedestrian fatality rates and those for cyclists. This factor overwhelmed any effects of the CPSC standard on helmet use. Petty, supra note 20 at 105. Thus efforts that make roadway use safer for pedestrians (e.g., restrictions on drunk driving) during this time period also make roadway use safer for cyclists.
217. See Forester v. Consumer Prod. Safety Comm'n, 559 F.2d 774 (D.C. Cir. 1977). The other parties who filed for appeal of the CPSC's initial promulgation voluntarily dismissed their suits. Id. at 781 n. 3.
218. Id. at 788.
219. 43 Fed. Reg. 60,034 (1978).
220. See e.g., Nina W. Cornell et al., Safety Regulation, in SETTING NATIONAL PRIORITIES: THE NEXT TEN YEARS 457, 493-4 (Henry Owen & Charles L. Schultze eds. 1976); W. KIP VISCUSI, REGULATING PRODUCT SAFETY 552 (1983); STEPHEN BREYER, REGULATION AND ITS REFORM 115 (1982).
221. See e.g., Nina W. Cornell et al., Safety Regulation, in SETTING NATIONAL PRIORITIES: THE NEXT TEN YEARS 457, 493-4 (Henry Owen & Charles L. Schultze eds. 1976); W. KIP VISCUSI, REGULATING PRODUCT SAFETY 552 (1983); STEPHEN BREYER, REGULATION AND ITS REFORM 115 (1982).
222. See e.g., Nina W. Cornell et al., Safety Regulation, in SETTING NATIONAL PRIORITIES: THE NEXT TEN YEARS 457, 493-4 (Henry Owen & Charles L. Schultze eds. 1976); W. KIP VISCUSI, REGULATING PRODUCT SAFETY 552 (1983); STEPHEN BREYER, REGULATION AND ITS REFORM 115 (1982).
223. See Ross D. Petty, The Consumer Product Safety Commission's Promulgation of a Bicycle Safety Standard, 10 J. PROD. LIAB. 25, 32-38 (1987).
224. See Consumer Product Safety Act Amendments: Before the Subcommittee on Consumer Protection and Findings of the House Committee on Interstate and Foreign Commerce, 94th Cong. 1st Sess. (1975) (Statements of Jay Townley, Schwinn Bicycle Co. and John R.F. Baer, Bicycle Manufacturers Association of America).
225. Even CPSC Economist Rodgers finds no statistically significant relationship between the standard and the injury rate. Rodgers, supra note 166, at 315-16. A recent CPSC review of its rule and bicycling related injuries, found relatively few injuries caused by mechanical problems other than poor maintenance that the rule could not address. See U.S. CONSUMER PROD. SAFETY COMM'N, supra note 7, at 100.
226. See Petty, supra note 20, at 107-08.
227. See JOHN FORESTER, BICYCLE TRANSPORTATION 96 (1983).
228. See, e.g., Walter K. Ezell, Court Case Reveals Lighting Problems, AMERICAN WHEELMEN, Dec. 1979, at 8.
229. 3 Consumer Prod. Safety Guide (CCH) ¶46,671 (1984).
230. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., FATAL ACCIDENT REPORTING SYSTEM ch. 8, at 12 (1987).
231. U.S. CONSUMER PROD. SAFETY COMM'N, supra note 7, at 100.
232. For an expansion of this critique and additional criticism of the CPSC's study, see Ross D. Petty, Currents: Bicycle Safety - A Case Study of Regulatory Review, in 2 REGULATION, 1994, at 22, and Susie Jones, The League's Voice in Consumer Safety, BICYCLE USA July/August 1994, at 29 (disputing study's conclusion that riding on separate bike paths is safer than riding on roadways in part by showing the study's data shows that the average adult bicyclists travels at the average speed of 2 mph).
233. For an expansion of this critique and additional criticism of the CPSC's study, see Ross D. Petty, Currents: Bicycle Safety - A Case Study of Regulatory Review, in 2 REGULATION, 1994, at 22, and Susie Jones, The League's Voice in Consumer Safety, BICYCLE USA July/August 1994, at 29 (disputing study's conclusion that riding on separate bike paths is safer than riding on roadways in part by showing the study's data shows that the average adult bicyclists travels at the average speed of 2 mph).
234. See FORESTER, supra note 68, at 368-9.
235. 1986 BICYCLE USA ALMANAC 28-9 (1986).
236. Capuano v. Almart Stores, Inc., 1 Prod. Liab. L. Rep. 78 (Pa. Northhampton County Court of Common Pleas # C-3849, Aug. 1982). See also Courting Disaster, BICYCLING, March 1994 at 134 (recent case with comparable holding). This holding is contrary to another court's decision prior to the promulgation of the CPSC standard. See Poppell v. Waters, 190 S.E.2d 815, 817 (Ga. Ct. App. 1972) (absence of a headlight is obvious so there is no duty to warn).
237. See supra notes 11-12.
238. SMITH, supra note 49, at 194.
239. See ROBERT A. SILVERMAN, LAW AND URBAN GROWTH: CIVIL LITIGATION IN THE BOSTON TRIAL COURTS, 1880-1900, 106 (1981).
240. See RANDOLPH E. BERGSTROM, COURTING DANGER: INJURY AND LAW IN NEW YORK CITY, 1870-1910, 43 (1992).
241. See Friedman, supra note 12, at 351.
242. In modern times, the judicial system appears relatively unsympathetic toward bicyclists that ride in traffic and are injured by cars. A recent study by the Jury Verdict Research, Inc. found that 67% of car-injured motorcyclists recover an award through litigation, but only 45% of similarly situated bicyclists recover. See Nelson Pena, Double Standard: Why Injured Cyclists Usually Lose in Court, BICYCLING, Dec. 1991, at 24.
243. Safety law is not so broadly defined to include the use of the high wheel bicycle as a punishment device. According to SEAMUS MCGONAGLE, THE BICYCLE IN LIFE, LOVE, WAR, AND LITERATURE 32 (1968), the Shah of Persia bought several high wheelers for personal use but was unable to learn to ride them. After cursing the bicycle as a "contraption of the Evil One," these bicycles were used to punish the ladies of the harem. The enormity of their crimes determined how many times they were placed upon the bicycle and pushed off, coasting until they fell.
244. It is important to note that this article only describes the bicycle's contribution to the development of safety law. The bicycle also has contributed to the development of other areas of law. For example, in United States v. Arnold Schwinn Co., 388 U.S. 365, 376 (1967), the Supreme Court declared a bicycle manufacturer's territorial restrictions of its dealers to be per se illegal under the antitrust laws. This controversial decision was overturned ten years later in Continental T.V. Inc. v. GTE Sylvania Inc., 433 U.S. 36, 59 (1977). Similarly, the Supreme Court recently decided a landmark governmental "takings" case involving a municipality's request for land to be donated to the city and used in part for a bike path in exchange for a permit to allow a business to expand. This case, Dolan v. City of Tigard, 512 U.S. 374 (1994), held for the first time that the government bears the burden of proving that its taking is related both in nature and in extent to the impact of the proposed private development. See, e.g., Nicole M. Lugo, Dolan v. City of Tigard: Paving New Bicycle Paths Through the Thickets of the Fifth Amendment's Takings Clause, 48 ARK. L. REV. 823, 823 (1995).
245. Even at the height of the bicycle boom of the 1890s, New York courts did not consider the bicycle to be a necessity for a minor. Rather minors were allowed to revoke contracts for purchasing bicycles. See When a Bicycle is Not an Article of Necessity, N. Y. TIMES, April 5, 1898, at 12, and Bicycles and Servant Girls, N. Y. TIMES, Nov. 22, 1898, at 1. Was this the origin of the practice of many motor vehicle dealers to sell only to adults?
246. Even at the height of the bicycle boom of the 1890s, New York courts did not consider the bicycle to be a necessity for a minor. Rather minors were allowed to revoke contracts for purchasing bicycles. See When a Bicycle is Not an Article of Necessity, N. Y. TIMES, April 5, 1898, at 12, and Bicycles and Servant Girls, N. Y. TIMES, Nov. 22, 1898, at 1. Was this the origin of the practice of many motor vehicle dealers to sell only to adults?
247. See, e.g., MARCIA D. LOWE, THE BICYCLE: VEHICLE FOR A SMALL PLANET 31-39 (1989). Under Netherlands law, the bicycle already is considered to have preferred status over the automobile. The motorist is 100% responsible for damages in an accident with a cyclist, if the victim is 14 years old or younger. A proposed law would make motorists always 100% responsible for damages in car-bike and car-pedestrian accidents, except in cases of intentional recklessness. See Alan Streater, Dutch Proposal: Motorists Always 100% Responsible (visited April 28, 1997), Coalition for Alternative Transportation Web page, 〈http://www.lehigh.edu〉. In the Netherlands, the sport of bicycle riding truly has had substantial impact on the development of safety law.
248. See, e.g., MARCIA D. LOWE, THE BICYCLE: VEHICLE FOR A SMALL PLANET 31-39 (1989). Under Netherlands law, the bicycle already is considered to have preferred status over the automobile. The motorist is 100% responsible for damages in an accident with a cyclist, if the victim is 14 years old or younger. A proposed law would make motorists always 100% responsible for damages in car-bike and car-pedestrian accidents, except in cases of intentional recklessness. See Alan Streater, Dutch Proposal: Motorists Always 100% Responsible (visited April 28, 1997), Coalition for Alternative Transportation Web page, 〈http://www.lehigh.edu〉. In the Netherlands, the sport of bicycle riding truly has had substantial impact on the development of safety law.