Nebraska's 3-Foot Law and Why It Matters ...

On July 20, 2016, at around 6:00 am, Jeff was riding his bike on Highway 30 near Sidney, Nebraska.  An avid cyclist and racer, Jeff was familiar with this highway, and he rode it regularly.  He had a red, rear-facing blinky light on his bike.  Jeff is 49, married, and has two sons in their early 20s.  Jeff has been mountain biking since 1988, road cycling since 1999, and began road racing in 2002.  He grew up racing motocross and riding freestyle BMX.  Needless to say, Jeff can handle his bike, and he’s a savvy rider. 

Unbeknownst to Jeff, a semitrailer was approaching him from behind. Although Nebraska has a 3-foot law, the driver did not move over 3 feet, and instead, struck Jeff from behind. 

Local news covered the story (click HERE).  Note the use of the word "accident" and "clipped." This type of reporting is the kind that minimizes these collisions (which are avoidable) and the injuries sustained.  In a crit you "clip" a pedal. But a semi-truck hitting a cyclist?  That's a crash...But, I digress. 

Jeff recalls that moment:  “… I was exploded off of my bike and went rolling through the ditch - I remained conscious through the entire accident. As soon as I was hit, I knew I'd been hit by a vehicle but I did not know what type of vehicle had hit me. I vaguely remember a vehicle coming up behind me; however, I do know that I was riding very close to the white line when I was hit.”

Jeff knew immediately his left arm was broken.  A witness stopped and assisted Jeff; the witness happened to be an EMT from Denver and was able to stabilize Jeff’s arm.  EMS arrived, as did the local sheriff’s office. 

The semi-driver, David McKnight, eventually walked over to Jeff.  Jeff recalls, “I remember him saying, "All I did was look down for a second. I'm so sorry."”  At the time, Jeff’s left cycling shoe was nowhere near him, nor was his bike. (His Strava data showed the bike was moved several feet in the ditch post-collision, which was odd).

Jeff was transported by ambulance to the ER in Sidney, and then transferred to the ER in Scottsbluff, NE.  His injuries included: 

•   Mid-shaft fracture of left humerus (upper arm)

•   Muscle atrophy of left long-head bicep

•   S.L.A.P. tear of labrum in left shoulder

•   Deep laceration above left elbow

•   Hairline fracture and sprained right ankle

•   Severe bruising of left hip/leg

•   Deeply bruised left calf/DVT (blood clot)

•   Abrasions on lower back

•   Cuts on head

Mr. McKnight, the semi-driver, works as a commercial driver.  At the time, he was driving for Cash Wa Distributing.  As part of our research and investigation in every case, we pull the at-fault driver’s DMV record.  Imagine our surprise to find this commercial driver, employed to DRIVE LARGE VEHICLES ON PUBLIC ROADWAYS, had an extensive driving violation history.  These infractions include: Improper Passing, Driving on Curb/Sidewalk/Shoulder, Driving during revocation, refusing alcohol test, driving under influence (1st), and driving during suspension (x2) between 1996 and 2016. 

In his traffic/criminal case, Mr. McKnight had to decide whether to plead guilty or not-guilty to the charges filed against him for hitting Jeff.  Mr. McKnight indicated that while he wanted to accept responsibility for his actions, he could not plead guilty because it might impact his employment as a commercial driver (!!).  He was permitted to enter a plea of no contest - in which he accepted the sentence but did not have to say “guilty” on the record.  

As you can see from Jeff’s statement at the hearing, this collision impacted his life and his body tremendously.  Although McKnight seemed remorseful, his actions did not align with his words.  He was charged with driving on shoulder and failure to give a cyclist 3-feet(and fined $25 for each of those charges-which his employer paid).  He also received probation for 12 months to pay restitution, and to take an attitudinal awareness driving course.  It would seem he got off with a slight slap on the wrist.  His restitution remained unpaid until his company’s commercial insurer ultimately paid it.  His company also paid his costs and fines associated with the traffic case. 

Cash Wa Distributing’s insurer, Cincinnati Insurance, the company with whom we reached a settlement on Jeff's behalf, attempted to insert a confidentiality clause in the release that Jeff signed as a condition of the settlement agreement we reached with them.  We refused- because we wanted to let the public know that Cash Wa keeps drivers like McKnight on their books, pays their traffic fines, costs, and their civil case settlements, and despite having extensive driving histories -- continues to employ drivers who hit cyclists on the roadways. 

Enough of that...let’s talk about Jeff.  Jeff invested his time and energy in showing up to every hearing in this case.  He worked SO hard in PT and rehab to get back to being fit and race-ready.  Jeff preached positivity, gratitude and optimism the entire time, start to finish.  He consistently demonstrated grit and resolve. And let me tell you now, just how proud I am of Jeff and his involvement in the traffic case.   When he could easily have blown it off and not gotten involved, he stayed involved and remained involved until the case was fully finished.  I hope you are as inspired by his actions as I am.  I hope if you ever have occasion to show up in a situation, that you do-- because it matters. 

I asked Jeff, now that he can speak publicly about this ordeal, what he would share with other cyclists – what advice would he give, what words of wisdom would he share?  

“My advice to other cyclists is, don’t read my story and quit doing something you are passionate about. I could not wait to get back on my bicycle. It took countless hours of physical therapy, and I now cherish every moment I can be out on the road. Always think: safety first. See and be seen! I now ride with a rear facing red light that has a built in camera that records all of my rides. I wish I had the camera the morning I was hit as the footage would have provided evidence that could have sped up the criminal part of this case. If you are ever involved in a motor vehicle/bicycle crash, DO NOT talk to the driver’s insurance company if they call you. I was contacted two days after my crash while I was on major pain meds. The adjuster was kind and assured me that once I completed treatment, they would reimburse me for all my expenses. Months later, the adjuster twisted words that I had said and tried using them against me in settling property damages. They record those calls, and they are not on your side. You are not required to give them a statement. Do not try to navigate the insurance waters on your own as they are a turbulent nightmare. Hire an attorney like Megan Hottman who specializes in cycling-related cases and can take on that burden for you. That morning in July could have turned out worse...I could have been killed! But God was looking out for me, and He still has me here for a purpose, and I am so thankful for that.”

A note of thanks to Cheyenne County District Attorney, Jonathon Stellar, who kept us involved and informed as the entire criminal case unfolded.  We greatly appreciate District Attorneys and City Attorneys who let us have meaningful roles in those cases and who give our clients a chance to speak their minds in Court at sentencing hearings.  It really, really matters.  

Jeff is now working with Nebraska law makers to assist them in spreading the message about why their 3-foot law matters, and needs more enforcement.  The law became effective in 2012.  See Nebraska Revised Statute 60-6,133.

Jeff mentions a rear-facing camera with red light in his comments above- I use the same, it's a Cycliq, and it recently captured footage just like this.  I recommend cyclists use them whenever possible: 

June 1, 2020 edit/blog update: this article was just brought to our attention.

The Glenda Taylor Case Recap

On June 7, 2015, Glenda Taylor was warming up for the Kansas State Time Trial Championships. An avid cyclist and competitor, she wisely chose to warm up on the very road she would be racing on just a short time later. Glenda had already registered for her race and her race number was pinned on her team jersey as she began the warmup ride.  The highway was newly paved, and the blacktop was fresh and clean.  It likely felt like butter underneath her firmly-pumped bike tires. 

Glenda was riding a Cannondale bicycle retrofitted into a TT bike.  She was racing late 80s vintage ZIPP wheels- a gift from a friend.  Glenda had raced many time trials before this one.  She’d raced in the area before, too.  Walnut, in the heart of Kansas, was a small town that, just like Pittsburg, or Alma, or Bazaar, had often hosted bike events before.

As it was race day, there were many other cyclists also rolling around on bikes in the area. The registration tent was set up in the middle of Walnut –It was apparent there was a bike event going on there that day. 

Before Glenda had begun her warm-up, and several miles away in a neighboring county, a man named Todd Kidwell was driving his truck and trailer, along with a passenger. A bridge was out on the road he’d normally travel, so he chose an alternate route, to get to his intended destination.  A Kansas cyclist who was working the race that day as a USA Cycling official, happened to observe Kidwell as he made his way towards Walnut that day. Sworn testimony elicited later from her reflected that she observed- more than once –Mr. Kidwell moving into the oncoming traffic lane each time he would crest a hill. Let me restate that –he drove into oncoming traffic on uphill bound sections of the road, where he would have no way of seeing what was coming towards him, and for no apparent reason. The witness was about to call local authorities after observing this erratic behavior, but by the time she and Kidwell neared Walnut, he seemed to have corrected his behavior. She began to focus on her roles as official that day and assisted with participant registration and pre-race matters.

Kidwell found himself on the same road as Glenda. (His later testimony would be that he observed a bike event going on, and that he commented aloud to his passenger that they ‘needed to be careful and drive with caution due to all the bicyclists in the area.’). He approached a cyclist from behind, and safely passed that rider.  Next, he approached Glenda as she rode along the right side of the road on that new, buttery blacktop.

What happened next was avoidable.  It was not an accident - it was a collision -one that could easily have been avoided, had Kidwell simply waited to pass Glenda until he had the time and space to do so. Instead, he struck Glenda from behind with his truck. He hit her with such speed, that her body was launched into the ditch, many feet away.  Glenda was killed almost instantly – and although cyclists who came upon the scene attempted to resuscitate her, later autopsy results revealed that her body had sustained such significant trauma that CPR and chest compressions were futile.

Glenda's bike was decimated.  Here are photos taken by law enforcement at the scene:  

Emergency crews pronounced her dead at the scene.  Kidwell claimed that Glenda had swerved into the front of his truck as he attempted to go around her. However the marks her bike left in the new blacktop revealed that she was between 12-14 inches off the very right edge of the blacktop:

Kansas authorities investigated the collision and ultimately charged Kidwell with 4 charges, including reckless 2nd degree murder, and improper passing of a cyclist. Kidwell hired private defense counsel Linus Thuston.  Curiously, Thuston works as the city attorney in the neighboring county. 

Last January, we had the opportunity to attend the preliminary hearing in this case.  This hearing’s purpose was for the Judge to determine whether the County Attorney Mike Gayoso had probable cause to pursue all 4 charges at trial. In order for her to make this decision, the Judge heard evidence from both sides.  This included testimony from Sherri Hahn, Donavon Hottman (one of the cyclists first on scene post-collision, who tried to assist Glenda and also observed Kidwell’s conduct), the coroner, Kidwell’s passenger, and responding law enforcement. 

It was determined that drugs, alcohol, and phone use were not an issue, and that Kidwell had made a poor choice when he attempted to pass Glenda – both in failing to be sure it was clear of oncoming traffic, and in failing to provide the Kansas Mandatory 3-feet passing distance.  It was a sunny day, and Kidwell admitted seeing Glenda from ½ mile and then ¼ mile away. The forensic evidence showed that Kidwell hit Glenda with excessive speed and force, such that law enforcement opined that Glenda was carried on the grill of the truck for some distance before her body was launched into the ditch. 

Judge found probable cause existed and allowed all filed charges to proceed.  Trial was set for December, 2016. 

A few weeks before the December trial was set to start, plea discussions resumed.  Kidwell agreed to plead guilty to the involuntary manslaughter felony (along with improper passing of a bicyclist).  The possible sentence range on this plea ranged from 34 months of probation, to prison, and everything, including jail, in between. 

Allow me to explain why people enter into plea agreements: 

-Concerns about a jury decision and jury bias.  Juries = rolling the dice. One just never knows. The feeling here, was that a jury in this particular venue (and no change of venue options were possible) might relate more to Kidwell, and would not understand (or try to understand) why Glenda (or anyone) would ride a bike on that road, and given typical anti-cycling bias in the area, would be likely to find Kidwell not-guilty.

-Concerns that even if the jury came back with a verdict finding Kidwell guilty, they may accidentally convict him on a lesser-included charge which could likely be a misdemeanor (juries are not told which charges are felonies and which are not). 

-Concerns that the trial itself would re-victimize Glenda’s family and friends.  The defense position would logically have been that Glenda was at fault, in order to reduce blame on Kidwell.  The trial would likely have consisted of testimony disparaging Glenda, her riding behavior, and so on.

-Concerns (as in every case) of a potential mistrial, or appeal…. thereby dragging the process out even longer, and delaying the time for closure for Joe and Glenda’s family.

Settlement means you get less than you want, but you trade certainty for uncertainty, and you take less in exchange for closure.  This is the case in any case, whether it’s civil or criminal.  A plea deal is a settlement agreement.  Neither side is happy – but both sides have avoided the “what-ifs” associated with a wild jury who might do something crazy.  And both sides get certainty.  And both sides get closure.  This is why so many cases filed in our Courts end in settlement and such a rare few make it to trial. 

**I want to point out that the plea agreement here was reached with direct involvement of Joe and Glenda’s family.  County Attorney Gayoso went above and beyond to involve my office and Joe, in all case decisions, and I cannot tell you how much that matters – and means – to crime victims.  (If you'd like to shoot him a note of thanks or gratitude, his info is here.)  To be kept in the dark, as many prosecutors and DAs we deal with, do, re-victimizes cyclists who are hit and injured, or whose family member was hit and killed.  (Side note: we realize fully that DAs/prosecutors have incredibly large caseloads and are overwhelmed so the time and attention they can spend on each case is incredibly limited…. However that does not eliminate their duty to serve crime victims by keeping them informed about the case).

 Gayoso informed Joe that only family members would be allowed to speak on behalf of Glenda, and Joe undertook this task with fervor and clearly, intent to see that Kidwell was imprisoned to keep the community safe from his driving behavior. The statement he would eventually make to the court began many weeks in advance and underwent multiple revisions.  It was thoughful and purposeful.  Imagine for a moment -the gravity of this task.  And then do me a favor, and send Joe a virtual hug from afar. 

The sentencing hearing was ultimately held on January 9, 2017, in Girard, Kansas, at the Crawford County Courthouse.  Glenda’s family, friends, cycling teammates, coworkers from Washburn University, former students (including one from California), and other cyclists and supporters, packed Gayoso’s side of the courtroom.  Kidwell’s side was similarly packed.  Needless to say, in a small rural community, this type of turnout is extremely rare. It spoke volumes to the Court about the importance of this matter. 

Kidwell’s attorney called 9 witnesses to speak on his behalf- they ranged from local law enforcement, associates, a young man who called Kidwell his father figure, Kidwell’s younger brother, and finally Kidwell’s wife.  All of who indicated to the Court that the community would be at a disservice if Kidwell were imprisoned.  With no criminal record, Kidwell’s “risk assessment score” had also come back at 10 -a very low score. (Keep in mind here-the issue was not whether he was a criminal likely to reoffend, but whether his driving was likely to pose a threat to others).  

Since hitting and killing Glenda, Kidwell had received two subsequent speeding violations in Wichita and Neosho County.  One was for going 84 in a 55mph zone –the other, for going 55 in a 40 zone. (Again –curiously, Thuston as county attorney, had handled one of these tickets and reduced it down to a non-moving violation). One of Joe's main goals would be to inform the court of these violations during his statement.  To that end, we obtained certified copies of both violations –to hand to the Court for her consideration.  One of the factors we felt she needed to consider MOST strongly, was whether Kidwell was likely to become a safe driver, or whether he was likely to continue to be a hazard and threat to other Kansas road users. 

Strangely, the Court would not hear this evidence from Joe – and the Judge actually admonished Gayoso for what she believed was his attempt to get in State's evidence at the hearing through Joe, despite his agreement to stand mute.  This was not the case at all, and in fact our office was the one that obtained these documents and instructed Joe to make mention of them in his statement. (Odd that the court would not allow these tickets to be submitted for her consideration, since at Kidwell’s probation hearing months before, these tickets were entered into the record). And of course, Kidwell’s driving behavior went to the heart of the issue here.

At the conclusion of the hearing, the Judge rendered a shockingly light sentence.  She decided that serving the sentence term on probation, as opposed to prison, was sufficient, though she did remand Kidwell to 60 days in jail. She also ordered him to write a letter of apology and to serve community service.  Minor fines were assessed.  She indicated that, should Mr. Kidwell violate the terms of this probation, he would likely be remanded to prison – and if this occurs, the 60 days served in jail would be given as a credit against that time.

Kidwell’s family was clearly emotional about the decision to remand him to jail, however it was Glenda’s side of the courtroom that was most in-shock.  60 days of jail time for hitting and killing a cyclist as a result of driving recklessly?  Needless to say Glenda’s family, friends, and the entire cycling community felt short-changed. But what I want to emphasize is, this light sentence was not a reflection of the work County Attorney Gayoso did in this case. It was purely a reflection of the judge’s decision to go easy on Kidwell based on the range of punishment she could impose on the plea deal.   And unfortunately in her findings, she indicated that she interpreted Gayoso standing mute as a persuasive factor – and we believe she incorrectly interpreted it as though the state did not feel strongly about Kidwell’s sentence. 

Articles detailing the case from start to finish can be found on CJonline.com – many thanks to reporter Steve Frye (and later, Lucas Ranker) for their rigorous coverage of the case.

 1/9/17: Man Convicted ... 

11/21/16: Chanute Man pleads guilty... 

6/7/15: Glenda Taylor killed... 

And you'll find many more by visiting CJonline.com  

My personal involvement in this case –unbeknownst to me – began with my own racing experience alongside Glenda when I lived in the Midwest as a new and aspirational cyclist (see, e.g., this article with Glenda at top and my photo at bottom left!).  My father, Donavon, was also one of the first cyclists who came upon Glenda right after the collision.  You can imagine the impact and effect that experience had on him, and on his good friend/fellow cyclist Frank, also a witness to the aftermath.  And finally, perhaps the most uncanny connection of them all for me – just a few days before Glenda’s death, she asked her husband Joe to ask a female cyclist we’d both raced with, Catherine W., about me (we believe it was prompted by seeing my name in the Outside Magazine article last summer) –something along the lines of if the other female knew me, had we raced together, etc.  Joe was supposed to ask Catherine at their next group ride together. Joe forgot once and Glenda reminded him a second time to ask Catherine about me.  Two days later, she was killed.  These connections led to Joe’s eventual hiring of our law firm to represent him in the civil matter against Kidwell’s insurer, as well as Joe’s insurer, and also the insurer for USA Cycling’s race event that day. The article detailing my role can be found here. 

This case reinforces the need for states to adopt Vulnerable Road User laws! 

---

A HUGE THANK YOU to all of the local cyclists, friends, community members, former students of Glenda's, the Washburn University Art Department, and more -who took the time to attend the hearing!  We cannot say thanks enough for your presence and support.  Oftentimes, just showing up is half the battle.  THANK YOU!  

Understanding The Cycling 3 Foot Rule

§ 42-4-1003. Overtaking a vehicle on the left

…

(b)

The driver of a motor vehicle overtaking a bicyclist proceeding in the same direction shall allow the bicyclist at least a three-foot separation between the right side of the driver's vehicle, including all mirrors or other projections, and the left side of the bicyclist at all times… (emphasis added)

 How much is 3 feet, really?  Approximately the length of your arm (for those who wondered, this is why our cycling team jackes have rulers on the backs of our sleeves!):

In my opinion, the law really should include the words “when safe to do so.”  In other words, if a motorist cannot safely give a cyclist three feet when passing, without interfering with oncoming traffic, the motorist should slow down and wait BEHIND the cyclist, while oncoming traffic passes, and THEN proceed to pass the cyclist with the 3 foot buffer. 

I experienced this myself firsthand a few years ago, when a large F-350 truck passed me from behind, giving me in excess of 3 feet.  Unfortunately for him, the same make and model truck was approaching from the opposite direction.  The truck passing me crossed the centerline to give me space, but in doing so, he crossed the center line and went into oncoming traffic’s lane.  The result is that they sheared one another’s side mirrors off.  The oncoming truck was driven by an off-duty police officer; he informed the truck passing me in no uncertain terms, that he needed to WAIT BEHIND ME before attempting to pass with three feet.  The driver attempting to pass me was obligated to pay for the damage to both trucks and was cited as the at-fault party.  I felt terrible because I was so grateful he had given me so much passing room.

But the reality is –the 3-foot law does not override or supersede a driver’s obligation to ensure it is safe to pass or cross the center line. The driver must check for oncoming traffic first.  If oncoming traffic prevents passing a cyclist with three feet, the motorist must wait behind the cyclist.  Not crowd into them in the lane.  Not swerve back over into the lane and knock the cyclist off the road.  Wait.  Safety first.  Then, 3 feet.  Many motorists do not realize this is the proper analysis.

As luck would have it, as I was writing this article Jerry N., an avid cyclist and cycling advocate, contacted me.  He informed me that very recently, he called Colorado State Patrol (CSP) to report a motorist who passed him too closely and CSP pursued the motorist and issued a 3-foot law violation citation.  Jerry asked me not to share his full name, or the complaint and report, since the case is currently pending, but he did offer some advice to cyclists who want to report this type of encounter:

[Megan] Jerry, this is great news that you took the time to place the call and complete a traffic complaint report - and that CSP took it seriously and pursued it!  What advice would you give other cyclists who wish to do the same when a motorist passes them too closely or "buzzes" them?  What number did you call to submit your complaint?  

[Jerry] Well, it takes a moment to collect yourself after suddenly feeling as though you are dazed and confused.  Make sure that you are first able to safely maintain your line and resume your presence of mind to operate the bike within your comfort zone.  Then, as you do so, look up, gain a visual on the license plate.  Recite the number to yourself.  Then repeat the number internally or aloud.  Then associate a date, a month and a calendar day to the numerical portion of the license number.  Use words beginning with the letters that appear on the plate.  Keep repeating these to yourself in order that you can remember it.  Commit the vehicle type, make, model, color and approximate year and try somehow to ascertain a visual on the driver.  Commit the driver's physical features to memory so that you may describe and or visually identify the driver at a later time.

Stop when it is safe to do so and call *CSP or *277.  Tell the Colorado State Patrol dispatcher where you are and why you are calling.  He or she will then patch you through to the local jurisdictional authority.  Be prepared to provide a detailed description of the sequence of events and depending on the severity of the alleged transgression you may request an officer or agent respond in person or you may ask, otherwise to create a case file.

If you are unable to physically identify the driver law enforcement may not respond in person but are likely to accept your request to record a driver in the registered vehicle you describe on file as having failed to yield a three foot berth or as having presumably driven intentionally close to you or whatever may be the case in your circumstance.

[Megan] Jerry, as you are probably aware, law enforcement officers do not often cite motorists with a 3-foot violation -- even where a motorist hits a cyclist.  What steps would you like to see us as cyclists taking, to encourage law enforcement to use this statute more often, and to enforce it?  

[Jerry] Call it in whenever the situation arises and as often as you fall victim to the menace, threat, discourtesy, ill will or pure negligence, apathy, disregard or complete ignorance of the law.  A deluge of ongoing reports of this nature will trigger flag words in dispatch recordings being monitored and lead to heightened awareness within agencies which share volumes and frequencies of calls received on specific matters or common subjects.

The officer I most recently spoke with (who issued the summons I requested against a driver), told me over the phone that he believed the law was limited in its purview only to roads in rural locations such as winding mountain roads.  I asked him to go and review and read the statute.  When I spoke with him the following day he begged my pardon and admitted that he was unaware of the breadth of the law and that is does, in fact, apply to all circumstances of a cyclist being overtaken or passed by a motor vehicle.  This means on all roadways, streets and highways inside the state of Colorado.

So, with this being said, we as cyclists ought to concern ourselves with increasing awareness of the law and its application in as many ways as we can. 

  **Many thanks to Jerry for sharing his success story in this instance! 

Below see an article printed in the AAA Encompass Magazine about this very topic!