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This article follows up on the recent post regarding the use of rear reflectors in Alabama and the risks of not using same.

Given that Alabama is a “pure contributory negligence” state where 1% of negligence on behalf of plaintiff may bar a recovery even if defendant is 99% at fault, you can bet it’s a defense often raised by defense lawyers. How can you beat it?

First, it is defendant’s burden to prove to a jury that you were negligent. A violation of a statute is prima facie evidence of negligence – it is not necessarily dispositive. For example, in the case of not having a rear reflector (a per se violation of the Alabama Code) are you really negligent if you had a blinking red light and/or reflective material on your shoes, back and helmet? Remember, negligence generally is defined as failing to do something a reasonably prudent person would do or doing something that a reasonably prudent person would not do – the “reasonable person standard.” If you have lights, reflective gear etc. that actually allowed for more visibility than the red reflector required by statute, using the items that allow for more visibility certainly is what a reasonable person would do, isn’t it? Of course, this may require expert testimony regarding the comparative visibility of a cyclist using the rear reflector versus using something else, but seemingly, you could make a pretty strong case that you were not negligent.

Another factor to consider is this – just because you violate a statute (which is, of course, prima facie evidence of negligence) does not necessarily make you negligent. Who among us hasn’t driven over the speed limit on occasion, and felt that in so doing we nonetheless were driving in a safe, prudent and reasonable manner? Take a case where someone was driving through a green light at 32 mph on a road with a speed limit of 30 mph when someone else ran a red-light and broadsided this person. How many jurors do you think will conclude that the person driving 32 in a 30 was negligent (unreasonable) such that a verdict ought to be rendered in favor of the person that ran a red-light? The same argument can be made if a cyclist was going through a green light at 27mph in a 25 mph zone and was hit by a motorist running a red-light.

Another way to overcome the contrib. defense is that defendant must also prove that plaintiff’s negligence was a proximate cause of the incident. Take for example a driver who is driving with a revoked or suspended license. Assume this driver lawfully was stopped at a red light and was rear-ended. Plaintiff’s driving a vehicle without a valid license may well be considered negligent, but did this negligence cause the wreck? I think most people would conclude that it did not. As regards cycling and the failure to have a rear reflector, assume that the cyclist is hit head-on by a motorist who lost control of her vehicle, crossed the double yellow line and struck the cyclist. How can anyone persuasively argue that the failure of the cyclist to have a rear reflector caused the wreck?

Finally, plaintiff’s contributory negligence is no defense to a wantonness cause of action. Wantonness is doing something in “reckless disregard” of others. For example, it is one thing to run the red light – negligence – it is entirely another to run the red light and have a .20 blood alcohol content. Driving drunk or high, driving when you haven’t slept for 48 hours, driving 80 mph in a 25 mph zone, all are behaviors that rise past the point of negligence and which give rise to wantonness claims. As regards these types of behaviors a cyclist’s (or motorist’s) contributory negligence will not defeat their claim.

As you can see, even if you have violated a statute and the contributory negligence defense is raised, it does not necessarily mean that you will be barred from recovery. In addition, sometimes, as a practical matter, a defense attorney may elect not to raise the defense given the very technical nature of the violation and the fact that arguing contrib. may simply make the jury mad at defendant who, instead of accepting responsibility for his bad conduct instead may be viewed as unfairly trying to eschew personal responsibility by focusing on plaintiff’s innocuous violation of an antiquidated statute.

In the next posting, I will address some other Alabama statutes (like the so-called mandatory side-path law etc.) that might lead to defendants’ raising the contrib. defense

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