Alabama is one of only two states in the union that continues to allow defendants to escape any liability pursuant to the doctrine of contributory negligence. In essence what this doctrine states is that if you are the least bit negligent and if your negligence proximately causes the resulting injury, then you are barred from any recovery whatsoever. This can have a devastating effect on an injured party. Accordingly, as a cyclist (and for that matter, as a motorist as well) you should do everything you can to protect yourself from having this doctrine prevent (or lower) your recovery if you have been injured because of someone else’s negligence. Understand that this doctrine prevents your recovery even when the other party is indisputably negligent, and even if the other party’s negligence is 99% the reason for the injury and your negligence is but 1% the cause. What got me thinking about this is the following note sent by a cyclist in Huntsville. Here it is:
Give the rash of motorist v. cyclist incidents lately (or what seems to be a rash of incidents) it seems to me that cyclists need to be absolutely sure that they are following the letter of the law in regards to their safety equipment, specifically their rear reflectors.
Alabama law requires that while riding a bike at nighttime the bike “shall be equipped” with a lamp “which shall emit a white light visible from a distance of at least 500 feet to the front” and “with a red reflector on the rear of a type approved by the department which shall be visible from all distances from 100 feet to 600 feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle.” Ala. Code 32-5A-265. Further, “a lamp emitting a red light visible from a distance of 500 feet to the rear may be used in addition to the red reflector.” Id.
The statue is pretty clear that the $1.99 reflectors us roadies immediately take off and replace with our $35.00 (or more) LED light is sufficient to comply with the law while the latest/brightest/greatest LED system is not. Let’s be honest, how many “racers” actually leave those reflectors on their bike?
Here’s the kicker in Alabama. Alabama applies contributory negligence in tort cases, therefore if the victim of a tort is responsible in any manner and to any degree for his or her injuries/damages, they cannot recover from the tortfeasor. So, imagine this scenario.
You are out on a late training ride one day hammering along on your favorite training route and it gets to be dusk. You flip on the $250.00 headlight and taillight system and proceed homeward. Just as you are about to turn off of a major street you get clipped by a passing motorist. Your bike is totaled; you’ve suffered major injuries (or worse) and incurred serious medical bills. Everyone tells you that it wasn’t your fault and the motorist even admits that he didn’t see you, so you call up his insurance company and ask them to compensate you. They refuse. So you end up in court seeking to recover your damages. The enterprising defense attorney brings Section 32-5A-265 to the jury’s attention and shows them a photograph of your mangled bike without a $1.99 reflector. There is a very good chance that the jury would find that you are at least partially responsible for the accident and your damages, and accordingly, under the theory of contributory negligence, you recover nothing. All for the want of a $1.99 reflector that you were too “cool” to sport on your $3,000.00 race bike.
I admit that until today I didn’t have a reflector on my bike, but you can bet I’ll be trying to find one tonight and stick it on my bike, just in case.
Feel free to ignore this email, but I’ve heard racers actually tell people to remove those “dorky reflectors” and while that is OK at a race, when at home training, be a “dork” and keep the reflectors on your bike.
I believe the author of this article is absolutely right. Alabama law requires that your bicycle have a rear reflector; if it does not, then this is a per se violation of the statute. A per se violation of a statute is evidence of negligence. Think of doing 67 mph on the interstate when the speed limit is 65 mph. Although a jury may conclude that going 2 mph over the speed limit is not negligence, the jury also may conclude otherwise. Failure to use a rear reflector when you ride will allow the motorist who did not see you to argue that your failure to abide by the law was negligent and that your negligence was at least part of the reason why the wreck occurred. If a jury buys it, then it’s a defense verdict and you get absolutely nothing. This is so despite the fact that the motorist, by not seeing you, in fact was, and in some cases, even admits that he was negligent.
Over the next few days, I will write a few more articles addressing the issue of how you overcome the contrib. defense, the antiquity of the Alabama statute giving rise to the defense, other instances of Alabama statutes that allow defendants to assert the contrib. defense, and the issue of whether the alleged contributory negligence actually “proximately” caused the resulting injury situation. However, the thing to take away from this article simply is this – Remove this issue by LEAVING THE REFLECTORS ON YOUR BIKE if you ride during dawn, dusk or dark.
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