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DC to End “Contributory Negligence” for Cyclists?

Today, DC votes on whether to end "contributory negligence" for cyclists and pedestrians.

11:30 am UPDATE: Act pulled from today’s Agenda in last minute move.  This means it HAS to come up at the July 12th meeting.  We will be there! 

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Today, the DC Council will vote on the “Motor Vehicle Collision Recovery Act of 2016.”  If passed, the act will end the antiquated legal doctrine of contributory negligence for cyclists, pedestrians and others making their way through the city under their own power.

Contributory negligence is an extremely harsh legal doctrine that can serve to bar recovery for injured parties if they are deemed to be even 1% at fault for the collision that injures them. If that seems unfair, it is.  As a DC bike crash attorney, I know first hand how unjust this doctrine really is.  

There are only four states that still retain contributory negligence. Unfortunately for DC cyclists, two of those states neighbor the district; Maryland and Virginia. The other states are North Carolina and Alabama. The other states apportion damage awards according to the percentage of fault. In some states, you must be 50% or less at fault to recover.

Denial of the injured cyclist’s claim against an at-fault driver based on 1% negligence can be devastating. Medical bills can pile up. The cost of fixing or replacing the bicycle can become cost-prohibitive. A few hundred dollars can upset many household budgets nowadays.

The vulnerable users that the Act seeks to protect are likely to be the most severely injured in a motor vehicle collision as well as those that are less likely to carry insurance that protects them. Whether cyclists, for instance, are choosing to ride for any of its myriad benefits or they are riding out of necessity many may be doing so without the protection of insurance mandated for motor vehicles.

What is interesting and appreciated about the DC Act is that it recognizes the roads’ vulnerable users, as it does not apply to motor vehicles. The council and the people of DC have recognized that the contributory negligence doctrine is particularly harsh to the non-motorized—read; not boxed in a metal cage—users.

This change to the law to protect vulnerable users has been a long time coming: The bill was introduced by Councilmember Mary Cheh in early 2015 after a similar bill introduced the year before was tabled. The Washington Area Bicyclist’s Association (WABA) and other advocacy groups have been advocating for the change for years. Members of the DC Council have worked to get the Act through the legislative channels to keep it mostly intact.

Some other, good elements of the bill have been lost along the way: For example, a “Stop as Yield” provision” was dropped during the markup phase in April 2016.

However, the bill also includes the “last clear chance doctrine” which provides for recovery for a cyclist that is deemed negligent, if the motor vehicle involved had the last clear chance to avoid the collision.

The full council will be voting on a strong bill that will have a great impact on vulnerable road users in the District. If passed and signed by the mayor, the Motor Vehicle Collision Act of 2016 will bring fairness to the claim process for cyclists and pedestrians. It will keep insurance companies from denying claims to injured parties based on an unfair balance of negligence. It will allow cyclists and pedestrians to be fairly compensated for injuries caused by the negligence of others.

This is an extremely important development in the protections for cyclists and other vulnerable users on the roads of DC.  We will update the blog with results from the hearing.

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