DC Judge Upholds Three Foot Law; Case Highlights Need for Contrib Reform

Last week in the District’s small claims court, Judge Michael O’Keefe made a significant ruling for District bicyclists. In the incident at-issue, a driver passed a cyclist too closely, leading to a crash that caused minor injuries and property damage for the cyclist.

  • MPD failed to cite the driver for passing too closely. In fact, MPD initially cited the cyclist.
  • The US Attorney’s office declined to bring any criminal charges against the driver whatsoever.
  • The relevant insurer wrongly declined to pay the cyclist’s damages, citing his contributory negligence for being in the road and failing to move out of the way of the unsafe driver.

After months of work prodding these three entities to do their jobs and coming up empty, the cyclist was left with no recourse but to bring a civil case himself.  Despite knowing that his damages exceeded its $5000 limit, he chose to proceed in the District’s small claims civil court. Pursuing a small claim was actually his only choice, as he was unable to secure an attorney willing to represent him due to the relatively low amount at stake and the prior, incorrect, decisions of MPD and the insurer.

Because the incident was caught on a handlebar-mounted camera, the facts of the incident were minimally disputed, and the court was able to focus squarely on the law. WABA provided expert testimony on the application of DC traffic laws to bicyclists, with topics ranging from the purpose and usage of “sharrows” to the details of the three foot passing law.

Ultimately, based on the video and his reading of the law, Judge O’Keefe ruled in favor of the cyclist. The judge found that the driver had violated the three-foot passing law and that this aggressive pass caused the resulting harms.

When will police start enforcing the three foot passing Law? 

This case showed that the three foot passing law can play a role in helping cyclists secure civil recovery for damages. That is good. But it is not the law’s intended purpose. The law is meant to enable police to ticket motorists who unsafely pass bicyclists. It is meant to impose consequences on unsafe behavior and, ultimately, to make bicyclists safer.

In this case, the cyclist showed the same video of the same behavior to District police officers as he showed to the Superior Court Judge. If it was good enough for the judge, why wasn’t it good enough for the officer? What will it take for local police to actually enforce safe passing laws that now exist in the District, Maryland, and Virginia? And in the District, what will it take for the US Attorney’s office to pursue charges against drivers who illegally harm cyclists?

When will insurers properly apply the law to cyclists? 

Initially, the insurance company denied the cyclist’s claim outright, stating that he was contributorily negligent for failing to move out of the way of the motorist. First, that’s a grossly incorrect understanding of the law. (We can say that with certainty now that Judge O’Keefe has weighed in.) But because of contributory negligence, that misunderstanding is as far as the insurer has to go. If it can find any fault on the cyclist’s part, it doesn’t even have to look at the motorist’s behavior. It just denies the claim, using a misreading of the law as the trigger to apply contributory negligence as a knockout rule.

Last week, Councilmember Mary Cheh introduced a bill in D.C. Council to address this issue. The Motor Vehicle Collision Recovery Act of 2015, if passed, would change D.C. law so that the contributory negligence of a bicyclist or pedestrian could not be used to deny coverage so long as he or she was 50% or less responsible for his or her own injuries.

This would mean that contributory negligence would no longer be a “knockout rule.” Insurers might still get the law wrong–though we hope the industry will recognize the need for improvement and offer training on bicycling law–but under the proposed rule, the insurer would still be required to examine the fault of other parties and determine the responsibility of each party.

Conclusion

There is a lot to unpack in this case but it’s clear that many of the systems in place to protect bicyclists are broken. With little recourse, crash victims find themselves fighting, rather than working with, the institutions that are supposed to bring justice.

This case highlights the fact that the small claims court process works, but imperfectly. Winning this case required time, a tenacious cyclist, video evidence, and WABA’s presence in court. The cyclist has been without compensation for the more than six months since the crash  And even after a favorable judgement, the cyclist won’t receive full monetary recovery. The system needs to change, and it can start with the changing fundamental legal expectation that bicyclists must be without error to be compensated for injuries and damage caused by the negligence of a driver.

Contributory Negligence Bill Tabled for 2014

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Today, D.C. Council Committee on the Judiciary and Public Safety tabled a proposed bill to improve access to compensation for crash victim–effectively killing it for this legislative session. Mary Cheh (Ward 3) introduced the motion to table. Councilmember Evans (Ward 2) and Chairman Mendelson voted to table the bill. Councilmember Wells (Ward 6) voted against the motion.

The “Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014″ (Bill 20-844) was introduced by Councilmember Grosso, Wells and Cheh in July to provide relief to vulnerable roadway users whose claims are inappropriately denied by insurers, and who cannot secure representation in the courts due to the economic effect of the liability standard.

We are deeply disappointed that the economic concerns of the insurance industry and the D.C. Trial Lawyers Association derailed progress on a bill that would have meaningfully helped hundreds of crash victims receive the recovery they are fairly due for injuries resulting from another party’s negligence. We will continue to work to resolve this systemic problem.

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Keeping Score on DC Legislative Positions, Starting with the Contrib Bill

As many of you know, WABA is working hard to change the contributory negligence doctrine in DC. We have been publicly pushing for this change for years because of the negative effects the doctrine has on the District’s cyclists. Hundreds of you emailed your Councilmembers to show support for a bill that would change the doctrine to the fairer comparative negligence. However, the insurance industry and others oppose the bill, and have sent a swarm of lobbyists to work the Wilson Building and sway the votes of our elected officials.

So, it’s time to publicly hold those Councilmembers accountable for their votes and show everyone which officials use their power to support people who bike, and which officials bow to insurance industry lobbyists.

The Scoring System

We view it as our responsibility to educate our members and the public on  key votes by elected officials that affect cyclists in the District.*

On key bills affecting bicyclists, we will score each legislator’s Yes/No vote on a 0-100 scale. A vote in support of the bicycling position will receive a score of 100. A vote against the interest of bicycling will receive a score of 0. Individual votes will be averaged, and the legislator assigned the appropriate letter grade based on that score, using a quintile system. (So, 0-20 is F, 21-40 is D, 41-60 is C, 61-80 is B, and 81-100 is A.)

Results of scored votes will be shared with all DC members and supporters via email once the vote is complete, and maintained on the WABA website, both on the homepage and in the “Resources” section.

Scoring Votes on B20-0884, The Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014 

When over 600 DC residents email their legislators on an issue this important to crash victims and all bicyclists, we need those legislators to listen to those constituents–not to the paid lobbyists protecting their industry’s financial interests at the expense of justice.

With only a handful of legislative days left in this Council session, let’s find out who’s listening to whom and make our officials accountable for their decisions that directly affect our safety.

A vote in favor of the bill will receive a score of 100. A vote against the bill, or a procedural vote that would have the effect of delaying the bill past the present Council session (causing it to fail without voting against it) will receive a score of zero.

We will release the initial report card to members, supporters, and the public–based on votes on B20-0884–the day after a vote is taken. As the Council votes on other relevant legislation, we well include those votes on the scorecard as well.

If you haven’t yet, write your councilmembers today:

Take action

* We’re testing this advocacy tool in the District. If it proves effective, we’ll try adding our other jurisdictions.

 

Proposed Sidewalk Biking Ban: Bad Bill, Good Opportunity.

Yesterday, Councilmember Jim Graham introduced a bill that would ban bicyclists from riding on the sidewalk in the District wherever there is a bike lane in the same direction. In the accompanying press release, Graham cites as a reason for the bill the death of 78-year old Quan Chu, who was struck by a bicyclist while walking with his wife. This event was tragic, but it did not take place on a sidewalk.

We recognize that as more people bike and walk in the District, it is important to have clear norms for interactions between bicyclists and pedestrians to keep people safe. We also recognize that the present regulation of bicyclists on the sidewalk makes absolutely no sense whatsoever.

For those who don’t know, the present system is to:

  1. prohibit bikes in an arbitrarily shaped “Central Business District,”
  2. place no signage telling anyone where that is,
  3. place bike parking and actual bikeshare stations on the sidewalks in that zone, then
  4. occasionally have MPD ticket bicyclists for using the bike infrastructure the District placed on the sidewalk in the area where the District prohibits sidewalk riding.

It is tempting to simply oppose Graham’s bill because it’s out of touch with the realities of urban riding—we need safe alternatives for novice cyclists when bike lanes are blocked or other safety needs would lead a cyclist to leave the roadway.  But simply opposing any legislation to deal with the sidewalk issue would be a missed opportunity to improve and rationalize the District’s regulation of the relationship between bicyclists and pedestrians.

To do that, we need to insist on evidence-based policy that accounts for real behaviors and real safety needs. We can’t just assume that because a bike lane exists, bicycling there is safe at all times. Similarly, we can’t just assume that because a sidewalk exists, bicycling is unsafe there at all times. Rather, we need to dig into the details and plan for pedestrians and bicyclists with a data-driven approach that accounts for congestion levels and actual safety.

We need to avoid the hyperbolic rhetoric about crashes that, while sad, are not relevant to the bill. And we need to avoid the knee-jerk reaction to take away portions of the public space from vulnerable users due to unsubstantiated fears and biases. Instead, let’s invest our energy in taking policy steps that would actually make pedestrians safer on the sidewalks and bicyclists safer on physically protected infrastructure.

We would like to work with our legislators and pedestrian advocates to improve the District’s regulation of public space for public safety. But this bill presents a lazy one-size-fits-all approach that assumes a bike lane is “good enough” to foreclose other options for people who bike, and we know that simply isn’t how things work in the real world. At a minimum, the bill should be amended to only ban sidewalk riding where there is a physically protected, unobstructed bike lane (also called a cycletrack). But we would prefer an approach that involved DDOT’s bicycle and pedestrian staff in examining sidewalk widths, bike/ped travel rates, and congestion to more sensibly address the issue.

Adding this bike-lane-based ban to the current silly system only makes the system sillier–ensuring that it won’t be enforced or paid attention by anyone. I challenge Councilmember Graham and his colleagues on the Council, if this issue is an issue they wish to focus on, to invest the effort to produce a bill that will rationalize our policy and improve public safety.

This bill doesn’t do that, and WABA therefore opposes it. But we remain eager to participate in crafting a bill that would address Councilmember Graham’s underlying concern in a more comprehensive and data-driven way, in hopes of improving safety for all.

Meanwhile, we’ll keep our focus on the solutions for the hundreds of pedestrians and bicyclists hit and injured by automobiles each year in the District (427 at the time of this writing). We invite our elected officials to take a leadership role in solving that problem as well.

A Fuller Description of the Contributory Negligence Problem for Bicyclists

Clicking the link below will take those who are interested to a post that more fully articulates the problems contributory negligence poses for bicyclists. It’s a long read, but I’ve received many questions and decided to write this fuller post on Medium (1) in hopes that it reaches new readers, and (2) to allow readers to engage via Medium’s commenting feature.

The Duties of Prescience & Perfection

More Details About DDOT’s Streetcar Regulations

Not a perfect setup, but a bike ban is not the solution.

Not a perfect setup, but a bike ban is not the solution.

Based on a day of answering questions from members and reporters about yesterday’s blog post, here are a few details and clarifications about the proposed regulation that would ban bicyclists from using the streetcar guideway:

  1. WABA does not oppose the streetcar. We do oppose an overly broad regulation that singles out bicycles as the only vehicles prohibited from a portion of public roadways.  We aren’t asking to delay the streetcar or make major changes to the already-built project. We are insisting that this proposed guideway bike ban not be included in the final regulations.
  2. This is the first time we’ve seen DDOT intentionally and directly proposed a rule violating its own complete streets policy by telling a mode of transportation user that parts of the public roadway network is off-limits. We believe in Complete Streets and will hold DDOT accountable for following its policy.
  3. That said, this is not merely a “slippery slope” argument. This regulation won’t just apply to H Street, NE. Once it’s on the books, it will apply to all future streetcar projects —presently planned to be a 37 mile network—unless the regulation is actively changed. That’s 37 miles of street lane that cyclists will be banned from using.
  4. The contraflow bike lanes on G and I Streets are a great way to avoid riding on H St (WABA proposed them!),  but their presence does not make riding on H unnecessary.
  5. Not every future streetcar route will have such easy alternative routes. Unless DDOT is going to promise to provide them. In which case, let’s put that in the regulations.
  6. The regulation applies to the guideway, not necessarily the whole road. DDOT helpfully clarified their intent on Facebook yesterday, but in the regulations the guideway is not as clearly defined as it should be, and a Facebook post is not helpful as a regulatory document.  Additionally, along the H St-Benning Road corridor the guideway shifts from the outer lane to the inner lane, which translates to a requirement that bicyclists switch lanes mid-block across tracks. This isn’t really any better.

We recognize that DDOT is trying to balance interests in the safety of bicyclists and the functionality of streetcars. We have raised concerns about bicyclist safety near streetcar tracks at every stage of this project, and DDOT has consistently punted on making design changes to address the problem. Now, they’ve come to the end of the design without addressing it and have no more engineering options available, so they’ve moved on to regulatory options.

We know that H Street is not a great place to bike. But its present configuration wasn’t handed down by the gods. DDOT built it like it is, knowing it wouldn’t be good for bikes, and should be held accountable for making what improvements are possible and for ensuring that future streetcar routes are built in a way that makes safe space for bikes. Allowing the agency to set the default position to “eliminating bicyclists from roadways” rather than “accommodating bicyclists on roadways” will allow DDOT to continue with unsafe designs that ignore their responsibility to make DC’s streets safe for all.

DDOT is accepting public comments on the proposed regulations until September 27th. You can submit comments here.