A law that blames you, instead of the driver who hit you, could soon meet its end

by and

In 2008, a driver in a minivan hit me (Tracy) when I was riding my bike on Connecticut Avenue, fracturing my pelvis in three places. The driver’s insurance company denied my claim because of a law that says if you’re even 1% at fault, you can’t collect anything. The good news? DC is moving to change this.


At a press conference announcing the bill in 2014

Currently, DC, Maryland, and Virginia use what’s called a pure contributory negligence standard to decide who pays what damages after a vehicle collision involving someone on bike or foot. I wrote about contributory negligence in 2014, but the basic thing you need to know is that under this standard, if the person is even 1% at fault for a collision, they can’t collect anything from the other party (or parties).

Insurance companies benefit from contributory negligence because it makes it very low risk to deny a claim, since the legal standard a court would apply is so broad.

Most people, however, agree that this standard is unfair—in fact, Alabama and North Carolina are the only states aside from those in our region not to have moved to an alternative legal standard that compares the fault of the parties and allocates responsibility to pay damages according to who was more to blame, known as comparative fault.

This might all change soon

On April 21, Councilmember and Judiciary Committee chair Kenyan McDuffie brought the Motor Vehicle Collision Recovery Act of 2016 to a vote. It passed out of Committee 3-0 and is now awaiting two votes before the full Council.

This bill would make it so a person on a bike or on foot who was contributorily negligent in a crash with a motor vehicle would still be able to collect damages if they were less than 50% at fault.

The version of the bill that came to markup had two minor but substantive changes from one that was introduced last January. First, it now includes a definition of “non-motorized user” to mean “an individual using a skateboard, non-motorized scooter, Segway, tricycle, and other similar non-powered transportation devices.” These vulnerable road users are now explicitly covered by the bill, in addition to bicyclists and pedestrians.

Secondly, the bill expressly retains the “last clear chance” doctrine, something that is already available under the law in the District. The basic idea behind last clear chance is that even if the plaintiff (the person who gets hit) is contributorily negligent, the plaintiff’s negligence is not a bar to recovery if the defendant (motorist) had the last clear chance to avoid the accident.

Reserving last clear chance will likely result in greater protection for bicyclists because in circumstances where the bicyclist is contributorily negligent, the bicyclist would still be able to recover for damages if the motorist had the last clear chance to avoid the collision.

The bill must be approved by the Committee of the Whole and receive two affirmative votes by the full Council. It would then go to the Mayor for her signature. Afterwards, the bill becomes an act and must go through the Congressional approval process before becoming law. Both votes could take place before the summer recess.

Who does contributory negligence hurt?

The contributory negligence standard is particularly hard on bicyclists, in part because the public is not well-educated about bike laws in general. But the reality is that contributory negligence is actually hard on anyone with relatively small damages to claim and/or no applicable insurance coverage (e.g. pedestrians).

Most personal injury attorneys work on a contingent fee basis, and small cases do not adequately compensate them for their time. Thus, though the cost of replacing a bike or a few thousand dollars in medical bills may be substantial for an individual, it’s not enough to attract an advocate to take on a driver’s insurance company.

Contributory negligence is hardest on low-income people

To some, the pain and damages that fall under this threshold are the difference between getting by and falling behind. There can be no doubt that this has real consequences for seniors, communities of color and low-income individuals who can’t just call in sick and watch Netflix until a back sprain heals or buy a new bike.

We know that 38% of DC households don’t have access to car. We know that 28% of trips made by DC households are by foot, and another 20% by transit (which includes some walking to access). The web of incentives and laws that we’re all traveling in every time we take a step or pedal across the street to the bus stop, or get behind the wheel of a car, directly affects our quality of life and shapes our behavior and choices.

Councilmember Mary Cheh (Ward 3) introduced the bill. The bill’s sponsors are Councilmembers Grosso (at-large), Evans (Ward 2), Bonds (at-large), and Allen (Ward 6); Councilmember Alexander (Ward 7) is a co-sponsor.

With this legislation, the DC City Council has an opportunity to choose fairness and common sense. Let your city council member know that this matters to you: thank them for supporting the Motor Vehicle Collision Recovery Act of 2016 or let them know you want to see their support.

Tracy Hadden Loh loves cities, infrastructure, and long walks on the beach looking for junk. She holds a Ph.D. in city and regional planning from the University of North Carolina at Chapel Hill. By day, she is the director of research at the Rails-to-Trails Conservancy. By night, she is an activist, a military wife, a baby mama, and proud to represent Ward 1 on the Mount Rainier, MD city council.

Tamara Evans is the advocacy director for the Washington Area Bicyclist Association. She lives in Mt. Pleasant.