I think most readers of this blog are familiar with the term “Ninja;” referring to a cyclist riding in the dark without lighting. Recently, I’ve encountered many runners, joggers, and walkers in the dark, some of whom run in the roadway without lights or reflective equipment of any sort, and some who run on multi-use paths. Certainly, these are at less risk than a cyclist doing the same thing – humans have the capability of jumping sideways while a bike is constrained by its wheels, but a runner near the edge of the road, might well be missed by other road users.
As a cyclist, I have a duty of due care towards these pedestrians, just as a motorist would have. The motorist also has a duty of due care towards me. The peculiar thing is that it is illegal for me to operate my bike in the dark on roadways without lighting, while it is fine for a pedestrian to do so. Supposing a motorist collided with me when I was operating my bike without that equipment; the motorist would probably (and, IMO, correctly) attempt to claim I was partially responsible even if I technically had the right of way. In the recent Reed Bates trials, without any supporting evidence at all, the prosecutor attempted to claim that Reed was at risk because bike lights are “harder to see.” Can that same claim be made when a legally operating (but unlit) pedestrian gets hit? Certainly, that pedestrian would be easier to see if he/she were carrying lights. If you cross a street, without lights attached to your body, and get hit, are YOU partly at fault because you COULD have brought lights along? After all, the unlit pedestrian is no easier to see than the unlit cyclist. If so, taking that logic further, would pedestrian or cyclist failure to utilize other, available, non-mandatory safety equipment like High Vis clothing and a helmet reduce the motorist’s responsibility? Would a pedestrian’s choice of the road over the adjacent sidewalk reduce the motorist’s liability and obligation to exercise due care? It seems to me that this is a slippery slope, but it is the same slippery slope the prosecutor started down when she prosecuted Reed Bates for reckless driving for not riding on a shoulder legally available to him, but not mandatory…
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