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

 

Bicycle Safety Omnibus Bill Introduced in D.C. Council Today

Today, councilmembers Mary Cheh and Tommy Wells introduced to the D.C. Council the bicycle safety omnibus bill. It makes it easier to ride a bike in D.C. by altering requirements for cyclists (like removing the requirement that all bikes be equipped with a bell) and proposes that drivers face points on their license for bike-related traffic infractions.

The bill has yet to be referred to committee, but WABA supports it and the provisions it suggests for cyclists and drivers.

Read the full text of the bill below:

Bicycle Safety Omnibus Draft_2 1 13 by wabadc