D.C. Council Considers Bill to Eliminate “Contributory Negligence” For Cyclists
December 1, 2014 By Abby V. Uzupis
Earlier this year, members of the D.C. Council introduced a bill that would exempt cyclists from the “contributory negligence” standard that is applied to all other plaintiffs in D.C. auto accident cases. If the bill is passed, a cyclist would not be prevented from recovering when struck by a motor vehicle even if a jury were to find that the cyclist contributed, in any way, to the cause of the accident. Rather, the plaintiff-cyclist would only have her damages reduced in proportion to their degree of negligence – this is known as “comparative negligence.” This breaks with D.C.’s long-standing application of contributory negligence, which prevents a plaintiff from recovering at all if it is determined that she were even 1% negligent.
On September 29, the Committee on the Judiciary & Public Safety held a hearing on the bill. The hearing was attended by cyclist advocacy groups, the insurance industry, and various trial lawyer associations. Those in favor of the bill argued that cyclists often bear the brunt of the injuries sustained in collisions with motor vehicles, but are prejudiced in recovery because witnesses, police officers, and juries alike have a tendency to blame cyclists for the accident. Moreover, injured cyclists have a difficult time hiring a lawyer because personal injury attorneys, who often work on a contingency fee basis, are wary of accepting such a case due to the high likelihood that the cyclist will recover nothing at all.
Those who were against the bill cited several other legal theories available to protect cyclists in the face of D.C.’s contributory negligence standard. For example, the doctrine of “last clear chance” may protect a cyclist by allowing her to recover if it can be shown that the defendant-auto driver had the last opportunity to avoid the accident. Trial lawyers who came out against the bill noted that the proposal conflicts with D.C.’s current policy of “joint and several liability,” which allows the injured party to recover from every party legally responsible for her injury. Citing statistics from other states, the opponents noted that states that have adopted comparative negligence laws have not been able to keep “joint and several liability” in its purest form, and that a cyclist’s total damages may be limited under the proposed bill. Finally, many insurance companies argued that this new law would increase insurance premiums for D.C.’s drivers and hurt those drivers already struggling to keep coverage.
Despite not being included in the bill, pedestrian advocacy groups attended the hearing to lend support for the bill. Not surprisingly, they urged the Council to amend the bill to include pedestrians, thereby affording pedestrians the same protections as cyclists.
At present, the bill is under Council review so Council members can carefully consider the impact that the bill will have on all the constituencies that testified for and against the bill. The Council is hoping to bring the bill back to the floor for a final vote very soon.
We will keep you apprised of the progress of this proposed bill and help you navigate the twists and turns of legal doctrine in D.C. that are likely to develop if the bill is passed. As can be seen by the request of the “pedestrian lobby,” these types of proposals often have an eroding effect on existing legal policy as every group will look for similar protections from contributory negligence.