The importance of being conspicuous

Legally Speaking - with Bob Mionske: The importance of being conspicuous
By Robert Mionske JD
This report filed November 30, 2006
Dear Bob,
I'm a triathlete and regularly enjoy reading your column. Your recent column on lights and reflectors (see "Reflected Glory") reminded me of a topic of debate between me and some friends. We're hoping you can settle it. One day, during a particularly heavy fog, I passed a cyclist on the road. The cyclist was dressed in black and wearing a black helmet, and he did not have lights or reflectors. This started us talking; it seems like technically the cyclist may not be breaking any laws, but could the cyclist still be considered negligent if there was an accident? Some say yes. Some say no, if there was an accident the responsibility for the accident would belong to the driver. Who's right here?
C.R.,
California

Dear C.R.,
Your letter raises some interesting legal questions about conspicuity. It might surprise you to learn that the cyclist you passed was in fact breaking the law, and would likely be found liable for negligence if there was an accident. But before we move on to the explanation of that answer, let's first talk about what conspicuity is, and why it's important.

Conspicuity? What's that?
"I didn't see him."

It's heard regularly when automobiles collide with bikes-the driver just didn't see the cyclist. And remarkably, cyclists involved in these collisions regularly indicate that they believed they were visible to motorists when the accident occurred. Although cyclists can readily see motor vehicles, there is a 7:1 difference in size between an automobile and a bicyclist that cyclists must take into account; this size differential means that while the cyclist may see the automobile, it doesn't necessarily follow that the driver will see the cyclist. Furthermore, consistent with driver reports that they just didn't see the cyclist, most collisions between automobiles and bicycles occur at night, when visibility is reduced by low light conditions.

Underlying the legal issues in your question is the cyclist's lack of conspicuity-the ability to be seen. Conspicuity is important because it affects both perception and recognition distances. Perception distance is the distance at which a motorist perceives that there is "something" ahead of the vehicle, while recognition distance is the distance at which the motorist recognizes what that "something" is. In turn, both perception distance and recognition distance affect the motorist's reaction time; the more time the motorist has to perceive a cyclist "suddenly appearing" in the road ahead, the more likely the motorist will be able to react and avoid the cyclist. Let's take a look at some factors affecting conspicuity:


Lights: Although state laws may require bicycle headlights to be visible for or up to 500 feet, and taillights to be visible for up to 1000 feet, actual lighting systems will vary, and may not meet the standard required by state law. For this reason, perception and recognition distances will vary, depending on the actual conspicuity of the lighting system.


Reflectors: State laws may require reflectors to be visible for up to 600 feet; the nighttime perception and recognition distances of reflectors will be at least equal to that of required bicycle lights, and may actually exceed them.


Reflective Material: The nighttime perception distance for reflective material will vary from 1,200 feet to 2,200 feet, depending on ambient light conditions; reflective material is more conspicuous against darker background lighting. Nighttime recognition distance varies from 600 feet to 700 feet, but with brighter background lighting, decreases to a range of 260 feet to 325 feet. However, motorists have difficulty recognizing what it is they are perceiving unless the reflective material is used in conjunction with a lighting system.


Color: Dark and drab colors tend to blend in with the background, rendering the cyclist virtually invisible. With dark colors, nighttime perception distance is only 75 feet, giving the driver less than 1 second of reaction time. With reaction times this short, it is virtually impossible for a motorist to avoid a cyclist "suddenly appearing" in the motorist's headlights.

Paradoxically, light colors also tend to blend into the background as the motorist approaches a cyclist, decreasing the cyclist's conspicuity as the approach distance closes. Nevertheless, light colors are more conspicuous. Fluorescent colors-particularly yellow-green, but also yellow, lime green, and orange-are the most conspicuous. In daylight, fluorescent colors may be up to four times brighter than their non-fluorescent counterparts, and are particularly effective during periods or conditions of low visibility, such as dawn, dusk, in haze, and in fog. Because the helmet is often the most visible part of the cyclist, fluorescent helmet colors increase the perception distance to greater than 600 feet. Fluorescent paint colors on the bicycle also aid the motorist in recognition. With fluorescent clothing, daytime perception distance increases from 400 feet to 2200 feet, while nighttime perception distance increases from 150 feet to 560 feet.

Conspicuity-The Statutory Requirement
Now let's take a look at what the law requires. In California, as in other states, a bicycle is required to be equipped with lights and reflectors "during darkness" - defined broadly to include nighttime, as well as other periods were visibility is reduced. However, as always, the law varies from state to state. By federal regulation, all bicycle manufacturers must equip their bicycles with reflectors on the front, rear, sides, and pedals. Beyond those requirements, each state vehicle code will specify what conspicuity equipment a bicycle must be equipped with while it is being operated. For comparison, let's look at what California requires and what the Uniform Vehicle Code requires:

The Uniform Vehicle Code requires:

Headlight (white): Must be visible for 500 feet; required during low visibility conditions;
Taillight : Must be visible for 1000 feet; required during low visibility conditions;
Rear reflector: Must be visible for 600 feet; required at all times;
Side reflectors: Must be visible from 600 feet; required during low visibility conditions;
Side light: A light visible from both sides for 500 feet may be used in lieu of side reflectors.
Additional lights: Additional lights /or reflectors are allowed.

The California Vehicle Code requires (during periods of low visibility):

Headlight (white): Must be visible for 300 feet in the front and to the sides; the lamp may be attached to the rider instead of the bike.
Taillight (red): Not required, not prohibited.
Rear reflector: Must be visible for 500 feet;
Side reflectors (white or yellow front, white or red rear): Must be visible for 200 feet; bicycles equipped with reflectorized tires permitted to meet this requirement.
Side light: Code doesn't allow side lights instead of side reflectors.
Pedal reflectors (white or yellow): Must be visible from the front and rear for 200 feet;
Additional lights: Not prohibited.

Now, the Uniform Vehicle Code is a recommended code that the states are free to adopt, modify, or ignore as they see fit. For purposes of comparison, however, you can see that in California, the conspicuity requirements are not very stringent.

Nevertheless, there are statutory-mandated conspicuity requirements in California, and because the cyclist you encountered was riding during a period of low visibility, he was riding in violation of the California conspicuity requirements because he did not have the required headlight and reflectors.

Conspicuity and Negligence
Now what about that question of negligence? In California, as in other states, a violation of the traffic laws is prima facie evidence of negligence. This means that in the event of an accident in which conspicuity is an issue, a violation of the lighting and reflector requirements would be evidence of the cyclist's negligence unless contradictory evidence is produced. If a cyclist and motorist were both found to be negligent, that could reduce the cyclist's damages award in many states, and it could completely bar the cyclist from recovery in a handful of states. As you can see, negligence has real-world consequences that can be quite severe.

Now let's say you want to protect yourself legally, so you ride in compliance with the reflector and lighting statutes of your state. Is that it? Is that all that's required of you? Probably, although you should understand that the equipment statutes are the bare minimum required of you to protect both yourself and others. Think of compliance with the equipment laws as the floor below which you cannot legally go; there's nothing in the law that prohibits you from meeting a higher standard.

But could you be found liable for not meeting a higher standard? In Spence v. Rasmussen, a 1951 case, the Supreme Court of Oregon observed that

A careful examination of the record in this case fails to disclose even a scintilla of evidence to support the charge that decedent rode his bicycle in a reckless, heedless, and dangerous manner without any care or caution. He had a lawful right to be on the highway; he was riding his bicycle on the right-hand side of the center line of the road; there is no evidence whatever that he was riding in any unusual way; and in so far as his clothing is concerned, there is no rule of the common law, nor is there any statutory provision, which requires a person before venturing upon the highway to dress in light, rather than dark clothing.
In contrast, in 1984 the Supreme Court of New York observed in Weise v. Lazore that
There is ample evidence that the decedent himself was negligent. He was wearing dark clothing at night, traveling on a bicycle that had no lighting equipment and was in the south-bound lane of the traveled portion of an unlighted highway which had wide shoulders suitable for bike riding.
Although these two cases address conspicuity, neither court has definitively formulated a common law rule that wearing dark clothing is or is not negligent. But wait a minute-didn't the New York court just say that wearing dark clothing was negligent? Sort of, but it's not a ruling on an issue of law, just the court's commentary on the facts before the court. And although the court did cite the dark clothing as evidence of the cyclist's negligence, the court did not say that the cyclist had a duty to wear light clothing; instead, the court only addressed the cyclist's statutory obligations to have lights or reflectors and to ride on the right-hand side of the road.

Now, you should understand that neither of these commentaries are the same thing as saying that a jury couldn't reasonably find a cyclist negligent for wearing dark clothing. The courts just haven't ruled yet on whether cyclists have a non-statutory duty of conspicuity. On the one hand, a jury could find negligence for lack of conspicuity if that lack of conspicuity was the cause of injury to the cyclist or somebody else. For example, remember that dark clothing at night reduces perception distance to 75 feet, and driver reaction time to less than one second. On the other hand, it seems inconceivable that a cyclist who is riding in observance of the law's conspicuity requirements could nevertheless be found to be negligent for wearing dark clothing. After all, a cyclist who is equipped with lights and reflectors but wearing dark clothing is still conspicuous, even if the cyclist isn't as conspicuous as possible. It seems more probable instead that, if a cyclist is riding in violation of the law, a jury would consider dark clothing as additional evidence of negligence, rather than as evidence of negligence despite the cyclist's riding in observance of the law.

And that raises an interesting issue. Suppose you're riding in observance of the law-with the required lights and reflectors-and you're also outfitted in fluorescent and reflective material, and your lights stop operating. Would a jury find you negligent in the event of an accident? In order to analyze whether a particular action might be considered negligence, the cyclist should ask himself "Would a jury consider this prudent"? Typically, that will be the answer to the question "What would a reasonable person of ordinary prudence do in the same situation?" This is an objective, rather than a subjective standard; it doesn't have anything to do with what you personally believe to be prudent. It is neither the standard of behavior of the person who takes no precautions, nor of the person who takes excessive precautions; instead, it is the standard of behavior of the person who takes reasonable precautions, and will depend upon what precautions a particular jury believes is prudent in a particular set of factual circumstances.

In the scenario I outlined above, taking additional precautions beyond what the law requires, such as outfitting yourself with fluorescent and reflective material, might help convince a jury that you were not riding negligently, despite the failure of your lights. This would be an example of introducing evidence contradicting the prima facie evidence of negligence.

Conspicuity and an Ounce of Prevention
Of course, there's another, more important reason to take additional conspicuity precautions-preventing injury to yourself in the first place. As we saw, fluorescent and reflective materials significantly increase driver perception and recognition distances, both in daylight conditions and during darkness," especially when used in conjunction with lights and reflectors. Ultimately, prevention of serious injury to yourself is far preferable to arguing these points of law after a preventable accident; even when the cyclist wins in court, no amount of money can substitute for your good health.

Good luck,

Bob