Can pedestrians walk in a Tennessee bike lane, and can drivers use a bike lane to pass on the right?

Subject

Opinion No. 14-13, Pedestrian and Vehicular Use of Marked Bicycle Lanes, January 23, 2014

Plain-English summary

Rep. Gary Odom asked two questions about marked bicycle lanes.

1. Can a pedestrian walk in a bike lane when there's a sidewalk right next to it? No, with two exceptions. Tenn. Code Ann. § 55-8-138(a) makes it unlawful "for any pedestrian to walk or use a wheelchair along and upon an adjacent roadway" where sidewalks are provided. A bicycle lane qualifies as part of the "roadway" because bicycles are "vehicles" under § 55-8-101(77) and the lanes are "improved, designed or ordinarily used for vehicular travel" under § 55-8-101(54). The two exceptions: (a) the adjacent sidewalk is obstructed (§ 55-8-138(b)), or (b) the pedestrian is using a wheelchair and the sidewalk is not wheelchair-accessible (§ 55-8-138(c)). Violation is a Class C misdemeanor (§ 55-8-138(d)). Whether a sidewalk is "obstructed" or "wheelchair-accessible" depends on facts not addressed in the opinion.

2. Can a driver use a bike lane to pass on the right of another vehicle making a left turn? No per se prohibition, but the conditions are narrow. Tenn. Code Ann. § 55-8-118(a) lets a driver pass on the right only when (1) the overtaken vehicle is making or about to make a left turn, and (2) the street has unobstructed pavement, not occupied by parked vehicles, of sufficient width for two or more lines of moving vehicles in each direction (or it's a one-way street meeting similar criteria). § 55-8-118(b) adds that the pass must be "in safety" and cannot be done by driving off the pavement or off the main-traveled portion of the roadway. Other rules apply: § 55-8-123(1) requires the driver to stay in a single lane as much as practicable and confirm any movement is safe; § 55-8-136(b) imposes a general due-care duty to see and avoid bicyclists and pedestrians using bike lanes, sidewalks, shoulders, or berms. Violation is generally a Class C misdemeanor (§§ 55-8-103, 55-8-136(c)). Reckless use is a Class B misdemeanor (§ 55-10-205(a), (d)(1)). The Tennessee Court of Appeals' decisions in Ludwig v. Doe, 914 S.W.2d 522 (Tenn. Ct. App. 1995), and State v. Levitt, 73 S.W.3d 159 (Tenn. Crim. App. 2001), upheld limited use of shoulders or designated pavement to pass on the right under safe and limited circumstances. Whether any specific bike-lane pass satisfies all the statutory requirements turns on the facts.

The doctrinal point: a marked bicycle lane is part of the roadway, not part of the sidewalk. Pedestrians stay on the sidewalk; drivers may legally enter the bike lane to pass on the right only when § 55-8-118's narrow conditions all line up.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Title 55, Chapter 8 (Rules of the Road). Applies to operation of vehicles and movement of pedestrians on Tennessee highways. § 55-8-101 contains the controlling definitions.

Key definitions.

• "Pedestrian" (§ 55-8-101(42)): "any person afoot or using a motorized or nonmotorized wheelchair."
• "Highway" (§ 55-8-101(24)): "the entire width between the boundary lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel."
• "Street" (§ 55-8-101(66)): same kind of "entire width" definition.
• "Roadway" (§ 55-8-101(54)): "that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder."
• "Sidewalk" (§ 55-8-101(58)): "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians."
• "Vehicle" (§ 55-8-101(77)): "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks." Richards v. Domalik, 2001 WL 355568, at *4 (Tenn. Ct. App. Apr. 10, 2001), held that a bicycle is a vehicle.

Bike-lane authority. The Commissioner of Transportation can designate state-highway bike routes (§ 54-5-142); municipalities can do so on city streets (§ 54-5-211); counties on county roads (§ 54-10-111). Because bikes are vehicles, these "routes for the use of bicycles" are part of the roadway. The MUTCD (Manual on Uniform Traffic Control Devices), adopted by TDOT under § 54-5-108(b), calls them a "portion of the roadway for preferential use by bicyclists."

Pedestrian rule, § 55-8-138. Pedestrians must use the sidewalk when one is provided. Two exceptions: the sidewalk is obstructed, or the wheelchair user can't use it because it isn't wheelchair-accessible. Otherwise, walking in the roadway, including in a bike lane, is a Class C misdemeanor.

Right-side-passing rule, § 55-8-118. A driver may overtake and pass on the right only when:

1. The overtaken vehicle is making or about to make a left turn.
2. The street or highway has unobstructed pavement, unoccupied by parked vehicles, of sufficient width for two or more lines of moving vehicles in each direction.
3. Or it is a one-way street/restricted-direction roadway meeting similar criteria.

Subsection (b): the pass must be "in safety," and "in no event shall the movement be made by driving off the pavement or main-traveled portion of the roadway."

Single-lane requirement, § 55-8-123(1). Drivers must stay "as nearly as practicable entirely within a single lane" and may not move from that lane "until the driver has first ascertained that the movement can be made with safety."

Due-care duty, § 55-8-136(b). Driver must operate at a safe speed, maintain a safe lookout, keep the vehicle under proper control, and avoid colliding with any vehicle, person, sign, or object on the roadway or right-of-way "including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or berm."

Penalties. Violations of these provisions are Class C misdemeanors (§§ 55-8-103, 55-8-136(c), 55-8-138(d)). Reckless driving (willful or wanton disregard for safety) is a Class B misdemeanor (§ 55-10-205).

Existing case law. Ludwig v. Doe, 914 S.W.2d 522 (Tenn. Ct. App. 1995): a driver who used the paved parking area to pass on the right did not violate § 55-8-118. The phrase "off the pavement or main-traveled portion of the roadway" is read disjunctively; either staying on the pavement or on the main-traveled portion is enough. State v. Levitt, 73 S.W.3d 159 (Tenn. Crim. App. 2001): a driver who used a paved shoulder to pass a stopped vehicle did not violate § 55-8-118 where the circumstances were safe and limited. Both opinions cite the same disjunctive reading.

Common questions

What about a wheelchair user who can't use the sidewalk because it has steps or curbs?

§ 55-8-138(c) lets wheelchair users use the roadway when the sidewalk isn't wheelchair-accessible. So they can lawfully be in the bike lane in that situation.

Is a runner on the bike lane breaking the law?

If there's an unobstructed sidewalk next to the bike lane, yes, under § 55-8-138. Class C misdemeanor. But factual questions like whether the sidewalk is "obstructed" depend on the situation; the AG declined to opine on those facts.

Can a driver use the bike lane to pass on the right of a car stopped in traffic (not turning)?

§ 55-8-118(a)(1) limits the right-side pass to vehicles "making or about to make a left turn." A stopped car not turning is not covered by that exception. Levitt extends the exception to stopped vehicles, but that's a narrow fact pattern and far from a general rule.

Does using the bike lane while passing on the right increase liability if I hit a cyclist?

Yes, significantly. § 55-8-136(b) imposes a specific due-care duty toward bicyclists in bike lanes. A driver who enters the bike lane to pass on the right has both the right-side-passing rules and the cyclist-safety duty in play.

What about scooters and electric bikes?

The opinion is specifically about bicycles. Other devices may or may not be treated as "vehicles" or "bicycles" depending on their statutory classification. Always check the specific device's classification.

Can a city ordinance change these rules?

Cities can designate bike lanes (§ 54-5-211) but cannot override the Rules of the Road set by the General Assembly. Local rules can add safety measures consistent with state law but cannot contradict it.

Citations

Statutory: Tenn. Code Ann. § 54-5-108(b); § 54-5-142; § 54-5-211; § 54-10-111; § 55-8-101 and subsections; § 55-8-103; § 55-8-118 and subsections; § 55-8-123(1); § 55-8-136(b), (c); § 55-8-138 and subsections; § 55-8-172(a); § 55-10-205(a), (d)(1). Regulations: Tenn. Comp. R. & Regs. 1680-03-01.02 (TDOT adoption of MUTCD). Cases: Richards v. Domalik, 2001 WL 355568 (Tenn. Ct. App. Apr. 10, 2001); Ludwig v. Doe, 914 S.W.2d 522 (Tenn. Ct. App. 1995); State v. Levitt, 73 S.W.3d 159 (Tenn. Crim. App. 2001). Reference: MUTCD § 9C.04.

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-013.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL

January 23, 2014

Opinion No. 14-13

Pedestrian and Vehicular Use of Marked Bicycle Lanes

QUESTIONS

1. May a pedestrian lawfully use a bicycle lane where an adjacent, unobstructed, and wheelchair-accessible sidewalk is provided?

2. If the driver of a motor vehicle otherwise complies with applicable law, may that driver lawfully use a bicycle lane to overtake and pass upon the right of another vehicle that is making or about to make a left turn?

OPINIONS

1. No. A pedestrian who uses any portion of a roadway, including a portion marked as a bicycle lane, where an adjacent, unobstructed, and wheelchair-accessible sidewalk is provided violates Tenn. Code Ann. § 55-8-138 and commits a Class C misdemeanor.

2. State law classifies a bicycle lane as a portion of the roadway. While state law contains no per se prohibition against a driver using any portion of a roadway, including a bicycle lane, to overtake and pass upon the right of another vehicle that is making or about to make a left turn, state law allows such a use only under limited circumstances, including the requirement that passing upon the right is allowed "only under conditions permitting that movement in safety." The illegal use of a bicycle lane could constitute a Class B or Class C misdemeanor, depending on the nature of the offense.

ANALYSIS

1. Chapter 8 of Title 55 of the Tennessee Code Annotated sets out the "Rules of the Road" applicable to the operation of vehicles on Tennessee highways. It also provides for the movement of pedestrians along the State's roadways. See Tenn. Code Ann. §§ 55-8-101 to -201. Tenn. Code Ann. § 55-8-101(42) defines a "pedestrian" as "any person afoot or using a motorized or nonmotorized wheelchair." By statute, "where sidewalks are provided, it is unlawful for any pedestrian to walk or use a wheelchair along and upon an adjacent roadway." Tenn. Code Ann. § 55-8-138(a). There are two exceptions to this general rule: (1) where a sidewalk is provided, but that sidewalk is "obstructed"; and (2) for pedestrians using wheelchairs, where the provided sidewalk is not wheelchair accessible. See id. § 55-8-138(b), (c). A violation of Tenn. Code Ann. § 55-8-138 is a Class C misdemeanor. Id. § 55-8-138(d).

A "highway" is "the entire width between the boundary lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel." Tenn. Code Ann. § 55-8-101(24). Similarly, a "street" is defined as "the entire width between boundary lines of every way when any part thereof is open to the use of public for purposes of vehicular travel." Id. § 55-8-101(66). A "roadway," as used in Tenn. Code Ann. § 55-8-138, is "that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder." Id. § 55-8-101(54). A "sidewalk," as used in Tenn. Code Ann. § 55-8-138, is "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians." Id. § 55-8-101(58). Therefore, a "sidewalk" is a "portion of a street," exclusive of the roadway, i.e., the portion of the highway "improved, designed or ordinarily used for vehicular travel," that is "intended for the use of pedestrians." Id. § 55-8-101(24), (54), (58), (66).

The term "vehicle," as used in the State's Rules of the Road, includes a bicycle. Richards v. Domalik, No. E2000-01882-COA-R3-CV, 2001 WL 355568, at *4 (Tenn. Ct. App. Apr. 10, 2001) (interpreting definition of "vehicle" as codified at the time in Tenn. Code Ann. § 55-8-101(72) (Supp. 2000)). The current definition of "vehicle" is identical to the one interpreted in Richards: "'Vehicle' means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks." Tenn. Code Ann. § 55-8-101(77) (2012); compare with Tenn. Code Ann. § 55-8-101(5) (defining "bicycle"). Generally, bicyclists riding upon roadways are granted all of the rights and are subject to all of the duties applicable to the driver of a vehicle under the Rules of the Road. See Tenn. Code Ann. § 55-8-172(a).

State law allows the Commissioner of the Department of Transportation to "designate and appropriately mark on appropriate state highways, or portions of state highways, routes for the use of bicycles." Tenn. Code Ann. § 54-5-142. The "responsible authority in each municipality" may also exercise this option on municipal streets, see id. § 54-5-211, and the "county legislative body of each county" may so designate and mark on county roads. See id. § 54-10-111.

Because bicycles are "vehicles" for the purposes of the Rules of the Road, the "routes for the use of bicycles" created under the authority of Tenn. Code Ann. §§ 54-5-142, 54-5-211, and 54-10-111, are "portions of a highway improved, designed or ordinarily used for vehicular travel" and, as such, are "roadway" as defined in Tenn. Code Ann. § 55-8-101(54). Therefore, the provisions of Tenn. Code Ann. § 55-8-138 apply to restrict pedestrian usage of these "routes for the use of bicycles" or "bicycle lanes." The Manual on Uniform Traffic Control Devices (MUTCD), 2009 Edition, promulgated by the Federal Highway Administration, refers to "bicycle lanes" as a "portion of the roadway for preferential use by bicyclists." See MUTCD, § 9C.04. The MUTCD has been adopted, with a few inapplicable exceptions, by the Tennessee Department of Transportation under the authority of Tenn. Code Ann. § 54-5-108(b). See Tenn. Comp. R. & Regs. 1680-03-01.02 (2012).

If a sidewalk is provided adjacent to a bicycle lane, a pedestrian violates Tenn. Code Ann. § 55-8-138 by using the bicycle lane, unless the adjacent sidewalk is "obstructed," or, for pedestrians using wheelchairs, unless the adjacent sidewalk is not wheelchair accessible. Questions such as whether a sidewalk is "adjacent" to a bicycle lane or whether that sidewalk is "obstructed" or "wheelchair accessible" are factual determinations, the answers to which would vary based upon the facts and circumstances of each situation. Accordingly, such questions are outside the scope of this opinion.

2. Tennessee law allows the driver of a vehicle to pass upon the right of another vehicle only under limited conditions. Specifically, Tenn. Code Ann. § 55-8-118 provides:

(a) The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:

(1) When the vehicle overtaken is making or about to make a left turn;

(2) Upon a street or highway with unobstructed pavement not occupied by parked vehicles of sufficient width for two (2) or more lines of moving vehicles in each direction; and

(3) Upon a one-way street, or upon any roadway on which traffic is restricted to one (1) direction of movement, where the roadway is free from obstructions and of sufficient width for two (2) or more lines of moving vehicles.

(b) The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting that movement in safety. In no event shall the movement be made by driving off the pavement or main-traveled portion of the roadway.

Tenn. Code Ann. § 55-8-118.

Other statutory provisions apply to a driver who is overtaking and passing upon the right of another vehicle. For instance, Tenn. Code Ann. § 55-8-123(1) compels drivers on roadways with two or more lanes marked for traffic to keep their vehicles "as nearly as practicable entirely within a single lane" and forbids drivers from moving from that lane "until the driver has first ascertained that the movement can be made with safety." Further,

[n]otwithstanding any speed limit or zone in effect at the time, or right-of-way rules that may be applicable, every driver of a vehicle shall exercise due care by operating the vehicle at a safe speed, by maintaining a safe lookout, by keeping the vehicle under proper control and by devoting full time and attention to operating the vehicle, under the existing circumstances as necessary in order to be able to see and to avoid endangering life, limb or property and to see and avoid colliding with any other vehicle or person, or any road sign, guard rail or any fixed object either legally using or legally parked or legally placed, upon any roadway, within or beside the roadway right-of-way including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or berm.

Tenn. Code Ann. § 55-8-136(b). A violation of any of the above-quoted provisions constitutes a Class C misdemeanor. Id. §§ 55-8-103, -136(c). Additionally, a driver commits reckless driving, a Class B misdemeanor, if he "drives any vehicle in willful or wanton disregard for the safety of persons or property." Id. § 55-10-205(a), (d)(1).

The words "street" and "highway," as used in Tenn. Code Ann. § 55-8-118, have the same statutory meaning, and each term contemplates an area that is wider than the part used for the purposes of "vehicular travel." Ludwig v. Doe, 914 S.W.2d 522, 525 (Tenn. Ct. App. 1995). "[N]either definition is tied to a paved area." Id. Indeed, "street" and "highway" are synonymous with the full right of way and refer to the area "designated for vehicular travel by the public, any paved shoulder, any unpaved shoulder, and any remaining part of the right of way." Id.

Based upon these statutory interpretations, the Tennessee Court of Appeals held in Ludwig that a driver had not violated Tenn. Code Ann. § 55-8-118 by using a paved part of the street that was designated for parked vehicles to pass another vehicle on the right. Id. The court noted that the phrases "off the pavement" and "main-traveled portion of the roadway," as used in Tenn. Code Ann. § 55-8-118(b), are to be read in the disjunctive, meaning that a driver may comply with the statute by passing on the right using either the "main-traveled portion of the roadway" or by remaining on the pavement. Ludwig, 914 S.W.2d at 525.

In State v. Levitt, 73 S.W.3d 159 (Tenn. Crim. App. 2001), the Tennessee Court of Criminal Appeals determined that a driver did not violate Tenn. Code Ann. § 55-8-118 when he used a paved shoulder to pass on the right a vehicle that had stopped in the lane of travel. Id. at 174-75. The court specifically cited the statutory interpretations from Ludwig in reaching this conclusion. Id. at 174.

Additionally, Tenn. Code Ann. § 55-8-118 makes clear that a vehicle may overtake and pass another vehicle only on the "main-traveled portion of the roadway." As shown supra, bicycle lanes constitute "roadway," or a part of the highway "improved, designed or ordinarily used for vehicular travel." See Tenn. Code Ann. § 55-8-101(54). Therefore, neither Tenn. Code Ann. § 55-8-118 nor other statutory provision establishes any per se prohibition against using bicycle lanes for the purpose of passing another vehicle on the right.

Of course, drivers who choose to pass other vehicles in this manner can do so only in limited circumstances and must comply with all other statutory provisions. For instance, in order to pass a vehicle on the right, that vehicle must be "making or about to make a left turn." Tenn. Code Ann. § 55-8-118(a)(1). The pass must occur on a street or highway "with unobstructed pavement not occupied by parked vehicles of sufficient width for two (2) or more lines of moving vehicles in each direction" or "[u]pon a one-way street . . . where the roadway is free from obstructions and of sufficient width for two (2) or more lines of moving vehicles." Id. § 55-8-118(a)(2), (3). Furthermore, the passing driver must keep his or her vehicle either on the pavement or on the main-traveled portion of the roadway while executing the pass. See id. § 55-8-118(b); Ludwig, 914 S.W.3d at 525.

Even if all of these conditions are met, state law requires that the passing driver make sure that using the bicycle lane does not endanger other persons or property. For example, the driver may pass another vehicle on the right "only under conditions permitting that movement in safety." Tenn. Code Ann. § 55-8-118(b). Furthermore, the driver cannot leave his or her lane of travel "until the driver has first ascertained that the movement can be made with safety." Id. § 55-8-123(1). Finally, the driver must exercise due care by:

operating the vehicle at a safe speed, by maintaining a safe lookout, by keeping the vehicle under proper control and by devoting full time and attention to operating the vehicle, under the existing circumstances as necessary in order to be able to see and to avoid endangering life, limb or property and to see and avoid colliding with any other vehicle or person . . . legally using . . . any roadway, [ . . . or] roadway right-of-way including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or berm.

Id. § 55-8-136(b). Whether a motorist's use of a bicycle lane to pass another vehicle on the right satisfies all of these statutory requirements will depend upon the facts and circumstances of each situation.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

KYLE HIXSON
Assistant Attorney General

Requested by:

The Honorable Gary Odom
State Representative
36 Legislative Plaza
Nashville, Tennessee 37243