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Bikes, Sidewalks, and Tourists

Riding a bike on a sidewalk can negatively impact a person’s personal injury claim and could your chances of recovery.

I enjoy walking around our office neighborhood a lot, and watching the protected bike lane on King Street & Punahou brings a couple thoughts to mind. Personally, I am glad to see the number of bike share users increasing. I also wish the City and County of Honolulu would add more bike lanes. I’ve also hear  from many friends, clients, and neighbors about bike users on the sidewalks.  On the flip side, traffic congestion  explains the desire to ride on the sidewalk. The streets in Honolulu (and in Hawaii) are scary for bike riders!

However, as a personal injury attorney, I am concerned for the general public, and particularly motor vehicle accident (MVA) clients. Why? Because where you ride your bike matters. If you ride your bike on the sidewalk, and are hit by a car, that may impact your ability to seek recovery. Compensation from insurance is often determined by variables.  One important variable is what you chose to do to contribute to the accident. Like the choice of where to ride your bike.

Why Does It Matter Where A Bike Is Ridden?

The State of Hawaii and the City and County of Honolulu put a lot of energy into encouraging alternative transportation. More bikes, buses, and walking are all goals for a livable community.  The City and County even has a dedicated page to a Bicycle program here.

These efforts are made with safety in mind.  Protected bike lanes, enlarged sidewalks, and clear street signs makes streets and sidewalks safer. If you follow the traffic laws, then getting around is predictable for all.  However, when a person walks down the middle of the street, or a rides their bike on the sidewalk, it creates an unsafe situation.  Why?  It makes traversing the area unpredictable. Additionally, it can create animosity between the various roadway users.

Most drivers, or pedestrians, do not expect to see bikes on the sidewalks.  If a bike user rides on the sidewalk and is involved in an accident, they could be deemed more at fault than the other person involved. This could mean a bar to recovery for the bike rider.  Putting it another way – it may be found that it was the bike rider’s choice to ride on the sidewalk, and getting hurt was their fault, and thus, no recovery.

What Does Honolulu Law Say About the Situation?

Following the law and knowing where you can ride your bike is critical to everyone’s safety.

Specifically, City and County provides the following on their FAQ page:

Q: Are bicyclists allowed to ride on the sidewalk?

A: The City and County of Honolulu prohibits bicyclists from riding on sidewalks within business districts or where prohibited. In all other areas, bicycles may be ridden on sidewalks provided the speed is 10 mph or less. The bicyclist must yield the right-of-way to pedestrians, giving an audible signal before overtaking them. ROH 15-18.7 

The State of Hawaii defines business districts as “the territory contiguous to and including a highway when within any six hundred feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks, or office buildings, and public buildings which occupy at least three hundred feet of frontage on one side or three hundred feet collectively on both sides of the highway.” HRS 291C-1

The Government Should Continue Their Effort To Better Educate Tourists

You can park your bike on sidewalks, but you cannot ride it in certain areas.

Many people ride bikes on the sidewalks.  My understanding, from transportation specialists, is that in many other countries riding on the sidewalk is the norm.  My business partner, Ryan, recently attended the Honolulu Society of Business Professionals (HSBP) Multimodal Transportation Luncheon.  The attendees and presenters echoed the same in their experiences. Todd Boulanger, the Executive Director of Biki (Honolulu’s bike share service) understands this issue as well. Biki  is working on ways to educate their customers, so they do not hurt themselves by riding on sidewalks when they should not. Perusing Biki’s website, I see they provide information in other Japanese about Biki services.

However, the government can and should continue to better educate the public about where to legally ride their bike. Ideally, this will help prevent accidents, whether riding on sidewalks is due to this cultural difference or not. Further, for educated bike riders that do get into accidents, at least they were following the law, and the path to recovery is more predictable.

Honolulu’s roads will likely become more busy and crowded as additional alternate means of transportation become available. There will be cars, bikers, rider sharers, bus riders, rail users, and pedestrians.

What Else Do You Think Can Be Done: Improving Cyclists’ Safety And Transportation Means

What can Honolulu do to alleviate these problems?  Please email me your thoughts. I am happy to discuss this issue with you. Or if you have ideas, maybe we can approach a legislator to introduce a bill for the legislative process. I think there are opportunities to make Honolulu a safe bike riding city for all.

DISCLAIMER: This post provides general information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of  an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Draw the Law, People Issues V: Making things Safe for Employees, OSHA and HIOSH

Earlier this week, I discussed how Hawaii Act 123 of 2011 increased the maximum penalties by 10% for HIOSH violations.  Well, today we shall cover the more substantive parts of the law.

General Overview

The Occupational Health and Safety Act (OSHA) and the Hawaii Occupational Safety Health Law (HIOSH) primarily cover an employer’s responsibility for keeping a safe and healthy work environment.

OSHA falls under the US Department of Labor and is the responsibility of the Occupational Safety and Health Administration.  They set the standards, enumerated by an extensive list of regulations.   The Department, through the Administration agency, is responsible for everything involved with OSHA. This includes activities like site inspections, issuing citations, conducting hearings, and directing/enforcing remedies.

What OSHA Requires

Under OSHA employers must:

  1. furnish each employee a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm;
  2. comply with occupational safety and health standards set forth by the regulations promulgated under the law;
  3. keep records as prescribed by the regulations (such as records of accidents, injuries and deaths);
  4. post notices informing employees of their protection and the employers’ obligations under the law; and
  5. refrain from discriminating against employees who exercise their rights under the Act.

The employers that are covered: business affecting commerce (includes professional, agricultural, nonprofit and charitable organizations) –  state and federal governments are excluded.

HIOSH

Several states, including Hawaii, have state-level plans that work through the incorporation of OSHA language, to administer the law.  So while Department of Labor and Industrial Relations (DLIR) may enforce the safety and health violations through the HIOSH office, federal OSHA regulations are often cited when issuing fines or penalties against non-compliant employers.

Differences: the Hawaii version specifically states that employers are to provide employees with safety devices and safeguards in addition to the other requirements.  In addition, ALL employers are to comply with the law.

I will now touch upon some more salient features in a quick, general way, as the law is much too large in scope to cover in a post.  The complexities of compliance with OSHA and HIOSH are important, and you may want to consider a formal training or discussion with attorney or expert.

Safety and Health Program

HIOSH requires all employers with 25 or more employees to maintain a written safety and health program.   If you are in construction and have fewer than 25, but do work that is worth an excess of $100,000 you must have a written program as well.

Recordkeeping

There are many standards, but one of the most applicable standards requires employers with more than 10 employees, to maintain a chronological log of recordable occupational injuries and illnesses with a detailed supplementary information about each occurrence.

Reporting

The purpose of that recordkeeping, is that for injuries and illnesses that result in fatality, hospitalization or 3 or more people, or property damage in excess of $25,000 must be reported to HIOSH.  This includes situations where the employer has fewer than 10 employees.

Posting and Labeling

Every employer has to place in a prominent location information regarding employees’ rights and obligations under OSHA, an annual summary of recorded injuries and illnesses.  Other posting requirements are hazard signs and the proper labeling that entails.

Training and Education

Generally, every employer has to establish some sort of occupational safety and health program, which includes training to provide employees instructional information on safe work practices.  I’d like to bring up workplace violence here because a lot of people have the impression that OSHA and HIOSH is only situations with construction, chemicals, or the like, but the specifics of the law is that the employer is to create a safe environment for the employees.  This includes a work environment free from violence.  Thus, criminal conduct or dangerous personnel situations also do fall under workplace safety.  Therefore, when you consider training and education it should be much broader than instructions on yellow hazard signs and warning labels.

Final Words

There is more to say about HIOSH and OSHA, but those specifics can be handled by an attorney, specialist, or compliance officer.  There are resources available on both the OSHA and HIOSH websites.  So check them out.  Ultimately, the point of all this is so that employers are responsible for keeping their workers safe and to do that requires a lot of planning and implementation of procedures.  The goal is to pass safety inspections and avoid being cited or even possible imprisonment (check out this week’s Law in the Brief).

If you have more questions about the inspecting and monitor, dealing with the Department, appeals, and in general further details of the law ask an attorney or contact the department.  If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Law in the Brief: Increased Fines for Violation of HIOSH, Easy as Act 123

Hey everyone, today’s Law in the Brief will be short and simple, but I am connecting it to this Thursday’s Draw the Law so check back later. So do you remember that explosion out in Waikele that killed 5 workers?  Well, that is the kind of situation that might be fined under the Act we are discussing today depending on what investigators discover.  That is the type of situation that falls under Hawaii Occupational Safety and Health Law (HIOSH), which means the company could face severe penalties for violations.

What: Act 123 of this year’s state legislative session has increased the fines under Chapter 396 (HIOSH) of the Hawaii Revised Statutes.  Basically, this is the state of Hawaii’s version of the Occupational Safety and Health Act (OSHA). HIOSH is administered by the Hawaii’s Department of Labor and Industrial Relations (DLIR). So this week’s Draw the Law will discuss OSHA and HIOSH together.

Specifics:  The law makes a 10% increase across the fines found under HRS §396-10.  Here are the specifics of the penalties for an employer or other concerned parties:

  1. if cited for a serious violation, and non-serious one as well – $7,700;
  2. if cited for violating the posting requirements – $7,700;
  3. for willful or repeated violations of 396 – $5,500 – 77,000 for each violation;
  4. if convicted for willful or repeated violations that results in an employee death it is $77,000 for the violation and a possible imprisonment term;
  5. if you discharge or discriminate against employee for asserting rights under 396 it is a $1,100 per violation;
  6. if someone without authority from DLIR Directors gives advanced warning of a surprise inspection it is $1,100 and possible imprisonment;
  7. for falsifying records, certification and documentation it is $11,000 and/or possible imprisonment;
  8. for criminal offenses against employees of the State doing their job it is $55,000 added to the maximum fine for a class A felony and ten years added to the term;
  9. for Class B felonies it is $27,500 added and a five years;
  10. for Class C felonies it is $11,000 added and three years; and
  11. for misdemeanors and petty misdemeanors it is $2,200 added and 1 year added to the term.

Last Word:  So in this economic downturn can you face increase 10% penalties?  That could be up to an extra $700 for a serious violation.  Are you ready to afford extra penalties and possible imprisonment? If you are trying to comply with safe and health standards contact an attorney or a safety specialist to help you point out problems in your business to avoid violating HIOSH.  In addition, return to this Blawg Thursday to check out Draw the Law.

If you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.