10 Questions about Contributory Negligence, answered

The Council of the District of Columbia is considering legislation to exempt bicyclists and pedestrians from the contributory negligence standard. Last week, we wrote about the proposed legislation and the upcoming hearing on September 29th. Since then, we’ve received a number of questions about what the proposed law would do. Below, you’ll find our answers for the most common questions we’ve encountered.

But first, here is a reminder about the upcoming hearing:

DC Council Committee on the Judiciary and Public Safety Hearing
September 29th, 2014 at 12:30 pm
Wilson Building, Room 500
1350 Pennsylvania Avenue, N.W. Washington, D.C. 20004
View the hearing notice (PDF)
Please email Nicole Goines or call 202-724-7808 to sign up to testify.

We are hosting a conference call on Sept. 23rd at 7pm to answer questions about testifying on this issue. Email advocacy@waba.org if you’d like to join the call.

What is being proposed in this bill?

The Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014 (bill and legislative history) exempts physically vulnerable roadways users (bicyclists, pedestrians, wheelchair users) from the doctrine of contributory negligence, which holds that no one who is deemed at fault in any way for a crash can recover any damages after a crash.

Under current law, what happens after a crash?

Generally, after a crash between a bicyclist and a motorist, there is an injured bicyclist and an uninjured motorist. So the cyclist often will seek compensation for injuries from the motorist and the motorist’s insurer. If everyone involved agrees that the cyclist behaved perfectly and the driver was completely at fault, the cyclist will be able to recover compensation. Unfortunately, such agreement is rare.  If the cyclist was at fault to any degree, or if the insurer or a police officer believes the cyclist was at fault through misunderstanding or misapplying the law, the cyclist will not be able to recover compensation for injuries suffered in the crash. This is true even if the crash was 1% the cyclist’s fault, 99% the motorist’s fault, and all of the injuries were suffered by the cyclist.

How will this change under the proposed bill?

Crashes between motorists and vulnerable road users will be governed by a form of comparative negligence in which each party is able to recover for the other party’s negligence, but not from his or her own.

For example: a motorist exiting her vehicle at night opens her driver’s side door into the bike lane, striking a cyclist who had no light at night. The motorist’s door is not damaged and the motorist is unharmed, but the cyclist suffers a broken arm from the fall and ends up with $1000 in medical bills.

Under the present contributory negligence standard, the cyclist’s failure to have a light would prevent all recovery of damages. even though the motorist broke the law by opening her door into traffic.

Under the new bill, the decision-maker (whether judge, jury, or insurance adjuster) would have to determine the proportionate fault of the parties and determine the damages accordingly. So, if the decision-maker finds that the unlawful opening of the door into the bike lane without looking was 75% responsible for the injury and the failure to have a light was 25% responsible for the injury, the injured cyclists could recover 75% of her damages, or $750–for the portion that was the motorist’s fault.

Contributory negligence applies to all sorts of situations. Does the proposed law change the standard for all cases?

The proposed law creates an exemption from contributory negligence only for vulnerable road users in crashes with motor vehicles.

Have other states changed their negligence standard?

Forty-five states, and the federal court system have adopted comparative negligence as a basis for apportioning fault between parties in tort suits.

How many states still retain the contributory negligence standard?

Currently, just four states (including both Maryland and Virginia) and the District of Columbia continue to use contributory negligence as a bar to recovery and access to courts.

Is there any precedent in current law for an exemption such as the one being proposed?

Yes, current District of Columbia law extends additional legal protection of comparative negligence to railroad workers.

If I’m following traffic laws to the best of my abilities and I am involved in a crash, could I still have my medical bills and damages reduced or totally denied?

Yes. Poor descriptions in accident reports, wrongly issued tickets, and misunderstandings or misapplication of bicycling laws can result in insurance companies denying claims for medical expenses.

Who benefits from this bill becoming law?

Vulnerable road users and motorists alike benefit from the equitable distribution of damages resulting from a collision. Comparative negligence facilitates the recovery of medical expenses or repair costs without long and costly litigation or arbitration. The apportionment of damages creates a limit on the amount of damages which can be recovered. The amount of recovery is ascertainable by looking at the extent of the damage and the percentage of each party’s fault. This is more predictable than jury awards and less harsh than the all or nothing system under contributory negligence.

So who loses if this bill becomes law?

Insurance companies, who presently are not required to pay for the negligence of their insured if the other party is negligent (to any degree). Contributory negligence is not an economically efficient or fair method for determining compensation after crashes because it leaves injured parties who were not primarily responsible for their injuries uncompensated and allows the insurers of the primarily negligent party to avoid compensating the injured.

 

If you have further questions about this proposed legislation and its effects, please email advocacy@waba.org

 

Contributory What?

Often referred to as the “one percent” rule, the Contributory Negligence doctrine prohibits you from recovering damages (money) from a crash if a court thinks you are in any way responsible for the crash.

A few examples of what this looks like:

  • You slow down and look, but roll through a four-way stop, then a drunk driver runs the sign and crashes into you.
  • You get doored, and a police officer incorrectly tickets you for riding too close to parked cars.
  • The battery on your blinky tail light dies while you’re riding home from work, and a texting driver veers into the bike lane and crashes into you.

In any of these cases, you may not be able to collect any compensation for your smashed up bike, your broken leg, or the days of work you missed while you were healing.

Only four states (Maryland and Virginia among them) and the District of Columbia retain this outdated legal doctrine.

DC Councilmember David Grosso recently introduced the “Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014″ to update DC law to the fairer, more modern Comparative Negligence standard for crashes between drivers and bicyclists or pedestrians.  This means your compensation would be reduced to the extent the you were responsible for the crash, but not eliminated entirely.  Most of the rest of the country has already adopted this more sensible standard.

Councilmembers Mary Cheh and Tommy Wells are also co-introducing the bill. The legislation has been referred to the DC Council Committee on Judiciary and Public Safety, which will hold a public hearing on the bill at the end of the month. If you or other bicyclists you know have been hit and had your insurance claim reduced or denied, please consider testifying.

DC Council Committee on the Judiciary and Public Safety Hearing
September 29th, 2014 at 12:30 pm
Wilson Building, Room 500
1350 Pennsylvania Avenue, N.W. Washington, D.C. 20004
View the hearing notice (PDF)
Please call Nicole at 202-724-7808 to sign up to testify.

We are hosting a conference call on Sept. 23rd at 7pm to answer questions about testifying on this issue. Email advocacy@waba.org if you’d like to join the call.

If you don’t have personal experience with this issue, please sign-up now to receive updates and we will let you know when there is an opportunity to take action in support of the legislation.

Learn more about the “Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014″ our advocacy campaign page. We will be posting additional information the campaign page in the coming weeks, including an FAQ early next week.

NPS Begins Arlington Memorial Circle Planning

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Navigating the Arlington Memorial Circle is a major obstacle for area bicyclists. The Mount Vernon Trail, Route 110 Trail and Arlington Memorial Bridge (the direct connection to the National Mall) converge at the circle. Trail users are forced to dash across high speed traffic at grade to cross the many highways, parkways and the traffic circle. There were a number of serious crashes involving pedestrians and bicyclists in 2010 and 2011, leading NPS to make some short-term safety fixes to trail crossing.

Now, the George Washington Memorial Parkway is starting a Transportation Plan and Environmental Assessment to study the long-term and major fixes need to vastly improve safety and the park experience for bicyclists, pedestrians and drivers. The planning process will take almost two years to complete with a final decision document not expected until the summer of 2016.

There are a number of opportunities in September to learn more about the planning process. National Park Service is also accepting comments until September 30th during this initial phase. Visit the National Park Service Park Planning website to learn more about how to get involved.

Arlington Installs Its First Protected Bike Lanes

And there was much rejoicing…

Arlington County finished installing a protected bike lane (also known as a cycle track) this month on Hayes Street in the Pentagon City neighborhood. These are the first protected bike lanes in Arlington County. The set of one-way lanes run 1/3 mile from South Joyce St / 15th St to South Fern Street.

hayes-st-bike-lanesPeople riding bikes are buffered from motor vehicles by parked cars. The space is created by moving parked cars away from the curb.

The Hayes Street protected bike lanes are the first in Arlington County and part of what will be a growing network of lanes in the neighborhood. The County has plans to install protected bike lanes on South Eads Street this Fall,  Army Navy Drive and South Clark Street.

Increasing the number and quality of protected bike lanes in the region is one of  WABA’s ten advocacy priorities. Protected bikes lanes create a dedicated, safe space that makes bicycling more appealing to new and less confident riders.

Congratulations Arlington!

View the complete set of photos below or on the WABA Flickr page.

VDOT Installs Bike Lanes on Sherwood Hall Lane

The Virginia Department of Transportation (VDOT) is almost finished installing the bike lanes on on Sherwood Hall Lane. We asked our WABA members and supporters in southern Fairfax County to speak up in support of the project during the public process back in March. With overwhelming support for the bike lanes, VDOT moved this project forward.

VDOT proposed traffic calming improvements and bike lanes on Sherwood Hall Lane in southern Fairfax County. This road is an important bicycle connection between Mount Vernon Parkway/Fort Hunt Road and the Route 1 corridor. Bike lanes now extend about 1.75 miles. Del. Scott Survell (VA-44th) has recorded a video tour of the new bike lanes with his helmet camera, you can watch them on his blog.

There has been little push back to the new bike lanes. There was however a negative Letter to the Editor about the Sherwood Hall Lane bike lanes in the Mount Vernon Voice on August 20th. Read it online here. Letter to the Editor in support of the bike lanes can be sent to their editors through their website.

Thank you to Fairfax County Supervisor Gerald Hyland, Virginia Senator Toddy Puller, and Virginia Delegate Scott Surovell for their support of this project.

WABA’s advocacy is supported by your membership dollars. Join or donate to WABA today to enable us to continue to achieve success in our advocacy work.

A First Step Toward Better Bike Lanes in MD and VA

Two way protected bike lane illustration from the NACTO Urban Bikeway Design Guide.

This week, WABA sent letters to local departments of transportation requesting consideration and adoption of the National Association of City Transportation Officials’ (NACTO) Urban Bikeway Design Guide. The NACTO guide presents state-of-the-practice solutions that create safe, enjoyable complete streets for current and new bicyclists.

The NACTO guide provides county traffic engineers with additional designs for innovative bicycling facilities that use several techniques to encourage new bicyclists, primarily by separating bike lanes from car traffic. The guide also has recommendations for designing on-road facilities such as buffered bike lanes, protected bike lanes (cycle tracks), bike boxes, contraflow bike lane and other facilities.  Adoption of the NACTO guide by local DOTs clears one of the many obstacles to building protected bike lanes.

Why protected bike lanes?

Protected bike lanes keep current bicyclists safer while encouraging new people to use bicycles for transportation. WABA is working to increase the miles of protected bike lanes throughout the region. Learn about our advocacy priority and our local campaign to build a protected bike lanes in Bethesda. More local campaigns are coming soon.

We sent letters to the Directors of Transportation for Fairfax County, Prince Georges’ County, Montgomery County and the City of Alexandria*.

The District Department of Transportation (DDOT) and Arlington County have already endorsed the guide and are currently implementing protected bike lanes. We will publish the written responses we receive from the departments to the blog.

Read the full letter requesting adoption of NACTO Urban Bikeway Design Guide.

* Update: The City of Alexandria has also endorsed the NACTO guide. 

DC Dept. of Public Works Testing Side Underrun Guards

DPW Side Underrun Guard Pilot

DC DPW is piloting side underrun guards on a few vehicles. Photo credit: DC DPW

The District Department of Public Works (DPW) is piloting a few designs of side underrun guards on a some of their large vehicles. Underrun guards are installed to limit the likelihood a bicyclist or pedestrian would be pulled underneath a vehicle when a crash occurs. DPW is testing a few different prototype designs and will be evaluating them over the coming months. There is no immediate schedule for when all vehicles would be outfitted.

The Bicycle Safety Enhancement Act of 2008 requires the Mayor to “equip all District-owned, heavy-duty vehicles side-underrun guards to prevent bicyclists, other vehicles, or pedestrians from sliding under rear wheels” (full legislation on DC Council website). WABA advocated for this law after the tragic death of Alice Swanson in Dupont Circle who was killed by a turning privately owned truck. The mandate was unfunded for a few years until 2012 at the urging of DC Council. We would like to thank DPW for working through all of the challenges to implement this element of the 2008 law and we would like to express our encouragement for full implementation.

Tiny Steps Toward Reality for Met Branch North

Image Credit: mvjantzen

Preliminary engineering and design of the northern section of the Met Branch Trail between the Fort Totten transfer station to the Tacoma Metro Station (technically called Phase 2) kicked off this month. DDOT provided this juicy news during their update at July meeting of the DC Bicycle Advisory Council (DC-BAC).  The preliminary engineering and design phase will bring the plans to 30% of complete. It’s a small but important step forward. For a sense of where this fits into the whole project, here’s a handy chart:

The engineering firm RK&K is the primary contractor on this project with the Toole Design Group as a subcontractor for trail design. A timeline of when this phase will be complete is not finalized yet.  After this work, the trail design needs to be 100% complete before a construction contract could be awarded and actual trail building to begin. All of these dates are unknown.

This is definite forward progress on the MBT. But, still no answer to Councilmember Mary Cheh famous question: “Will I be alive [when the trail is finished]?

Win! Suitland Parkway Trail Will Connect To The New Douglass Bridge

WABA

Source: DDOT

The new Frederick Douglass Memorial Bridge will include a direct, safe and convenient bicycle and pedestrian trail connection to the Suitland Parkway Trail. DDOT announced the change to the bridge plans yesterday via the the Anacosita Waterfront Initiative (AWI) blog.

Phase 1 of the Frederick Douglass Memorial Bridge will now include a trail connection from reconstructed bridge along the northern side of the traffic circle and parkway to Firth Sterling Avenue SE and the Anacostia Metro Station. Bicycle and pedestrian trail user will bi-pass the high speed I-295 exit ramp through a new tunnel underneath the road. The large yellow arrow on the rendering above points to the new trail tunnel. Phase 2 of the bridge project will finish the direct trail connection from the Anacostia Metro Station to the existing trail head.

WABA has been engaged for over three years with DDOT on the bridge replacement planning process. This victory concludes months of advocacy and petition efforts after we raised the trail connectivity issue back in January. The advocacy work on this bridge project in line with our Southeastern Trail Corridor advocacy priority.

We are encouraged by the many improvements and updates to bicycle and pedestrian access that have been made. The current design reflects the District’s multi-modal vision. You can learn more about the entire bridge project on the AWI website and watch the updated video of the proposed bridge below. When complete, the Frederick Douglass Memorial Bridge will be the best bicycling bridge in the region and it will be a major connection in the regional trail network.

While we wait for the new bridge and trail connection, join us on July 12th for a clean-up event of the Suitland Parkway Trail with our Trail Rangers. Sign up online here

And here’s a neat video rendering of the new bridge:

Virginia’s Three Foot Passing Law Begins Today

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Beginning today, Virginia law now requires to drivers to give at least three feet of space to bicyclists when passing. Safe passing laws are effective at educating drivers about safe distance needed to pass bicyclists while providing additional legal protection after a crash occurs.

Virginia is the 21st state to enact the three foot passing law. The District of Columbia and Maryland state both have three footing passing laws on the books, so Virginia’s new law brings much needed consistency to Washington area bicyclists and drivers.

The legislation (SB97) sponsored by Senator Bryce Reeves (R-Spotsylvania) passed the full Senate on January 21 and it passed the House of Delegates on March 21. The bill was signed into law by Gov. McAuliffe shortly after its successful passage. Learn more about the legislative history of SB97 in our March blog post.

WABA has worked for years with the Virginia Bicycling Federation to advocate for the three foot passing law. We would like to thank the thousands of Virginia bicyclists who contacted their legislators throughout 2014 legislative session.