The Contributory Negligence Bill is Moving!


Big news! We have heard from Councilmember McDuffie and Judiciary Committee staff that they plan to bring the Motor Vehicle Collision Recovery Act of 2015 (B21-0004) to markup, this Thursday.

The doctrine of contributory negligence is a legal dinosaur. This unfair legal standard is used to deny a bicyclist or pedestrian access to compensation for medical bills and property damage suffered when a negligent driver inflicts injuries on a less-negligent road user.  This doctrine unfairly compounds legal vulnerability upon physical injury and limits bicyclists access to justice. When a bicyclist or pedestrian is involved in crash with a driver, he or she should be able to focus on recovering from injuries without worrying that medical and property damage claims will be denied due to an outdated legal doctrine.

Contact your Councilmember 

The District of Columbia is a national outlier, as it is one of only five states that still use contributory negligence to allocate fault. The vast majority of states have updated their negligence standard to a fairer system.

WABA has been advocating for reform of this antiquated law since early 2014. The bill before the Judiciary Committee would change the law so that if a bicyclist or pedestrian is less than 50% at fault for the crash, he or she would not be automatically barred from recovery. Passing this law will give people a chance at having their expensive medical bills and damaged property covered.

The current version of the bill represents a good compromise between many powerful stakeholders and we hope it will pass out of committee without any changes that would jeopardize the widespread support it enjoyed when it was first introduced last January.

Click here to tell your Councilmember that you support passage of this bill without amendment, to give bicyclists a fair chance at justice after a crash.

Legislation to watch this fall in the D.C. Council

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The Council of the District of Columbia’s legislative session is in full swing with four bills relevant to bicycling. Here are brief summaries of each bill and links to the full legislative language. We will be tracking the progress as these bill move forward (or don’t).

  1. Bicycle and Pedestrian Safety Act of 2015 (B21-0335)

    This bill reflects the consensus recommendations of the Bicycle and Pedestrian Working Group, (convened by Councilmember Cheh and co-chaired by WABA and AAA Mid-Atlantic) which was formed to assist the Council in reforming the District’s laws, regulations, and policies to improve road safety.  It includes improvements to crash data reporting, adopts a Complete Streets policy, creates pedestrian and bicycle priority zones, adopts “stop as yield” (a modified version of the Idaho stop law) for bicycles, clarifies that existing laws prohibiting opening doors into traffic apply to bicycles, and a host of other safety improvements.

  2. Vision Zero Act of 2015 (B21-0383)

    Mayor Bowser’s bill codifies aspects of the District’s Vision Zero plan. The bill makes the Complete Streets policy law; bans the use of ATVs and dirt bikes on D.C. streets; establishes an ignition interlock device program for repeat DUI offenders; changes fines and jail sentences of drunk drivers; increases fines for distracted driving from $100 to $500 and adds two points.

  3. Motor Vehicle Collision Recovery Act of 2015 (B21-0004)

    If passed, this bill will bring D.C. negligence laws out of the dark ages and more in line with the majority of states. Under current D.C. law, a bicyclist injured in a crash cannot collect damages if she is found to have been in any way at fault, even if the other party bears a disproportionate amount of blame. As a result, insurance companies routinely deny claims resulting from crashes, leaving injured bicyclists with few options. Under the proposed bill, contributory negligence could not be used to deny coverage to a bicyclist or pedestrian who was 50% or less responsible for her injuries. It also explicitly retains the doctrine of joint and several liability— a primary concern for the D.C. Trial Lawyers Association that contributed to an earlier version of the bill being tabled in 2014.

  4. Enhanced Penalties for Distracted Driving Amendment Act of 2015 (B21-0021)

    This bill, introduced by D.C. Council Chairman Phil Mendelson, strengthens the penalties for distracted driving. Under the proposed law, the first violation would result in a $100 fine, with fines escalating for repeat violations over an 18 month period. The second violation in an 18 month period would be a $200. Any further violations would incur a $400 fine and suspension of license and vehicle registration for 60 to 180 days. Points could be assessed for a second violation within 18 months even if the violation did not result in an accident.

WABA will give periodic updates on bills via our blog (waba.org/blog–you’re reading it right now!). We will also be sending out targeted action alerts to our members and supporters who live in the district. Sign-up for email updates and action alerts here.

Not so fast…

Despite recent forward progress on the “Motor Vehicle Recovery Act of 2015,” the D.C. Council Committee on the Judiciary is delaying work on the bill until the fall. Last week, we announced the bill would have a markup hearing before the Council’s summer recess, but today, the Committee on the Judiciary’s mark-up hearing agenda did not include it. The bill will have to wait until the fall when the Council returns from recess.

The Judiciary Committee cited other remaining business before the committee as the reason for the delay. While tight schedules are understandable, delaying this bill will directly impact hundreds of District residents over the next few months. There at least 3-4 crashes every day involving a pedestrian or bicyclist in D.C. Many of these injured victims will be denied recovery of damages and medical expenses because of the current law.

The “Motor Vehicle Recovery Act of 2015” will abolish the unfair and out-of-date negligence standard that allows insurance companies to deny injured victim’s claims after a crash with a driver. We are disappointed to see progress on this important piece of legislation delayed until September.

Councilmember Kenyan McDuffie (Ward 5 – D) is the chair of the Judiciary Committee. If you wish to express your opinion about the delay of this bill, please send him an email or call his office at (202) 724-8028. Learn more about this issue and WABA’s campaign to make the law fair for vulnerable road users involved in crashes

Crash Victim Bill Moving Forward in D.C. Council

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The D.C. Council Committee on the Judiciary will hold a mark-up hearing for the Motor Vehicle Recovery Act of 2015 in early July.  If passed, this bill will enable injured victims to recover damages after a crash.

The District of Columbia is one a few remaining jurisdictions with an antiquated contributory negligence standard (Maryland and Virginia are too) in the country. Most states abolished the use of contributory negligence decades ago.

Insurance companies use confusion of the rules that pertain to bicycling or slight errors made by injured crash victims to deny their claims. Victims are stuck paying their medical bills and costs to fix their damaged property (i.e. their bicycle). Or, they try to hire an attorney to bring an expensive lawsuit against the driver’s insurance. Often attorneys won’t take these cases because the risk of losing is too high. All are no-win situations.

The Motor Vehicle Recovery Act of 2015 will make it against the law for insurance companies to continue this unfair practice. Injured bicyclists and pedestrians will have a fair chance to have their claims paid. Negligent drivers who injure people should be responsible for their actions.  This bill does not give a bicyclist the right to recovery if they are primarily at fault.

Last year, the Judiciary Committee held a public hearing on the “Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014.” The committee tabled the bill in November due to concerns from DC Trial Lawyer’s Association. Councilmember Mary Cheh reintroduced Motor Vehicle Recovery Act of 2015 in January. The current bill is stronger and addresses concerns raised last year. Councilmembers Bonds, Evans, Grosso, Allen and Alexander co-introduced the bill.

The exact date for the mark-up hearing is not known yet, but the hearing will occur before the summer recess begins in mid-July. The bill must have a majority of committee members vote in favor of the bill to move it back to the full Council for consideration. The soonest the bill could be back to the full Council is this fall. Councilmember McDuffie is the chair of the Judiciary Committee. If you wish to express your support of this bill moving forward in the committee, please send him an email.

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.

Councilmember Cheh Introduces Bill for Crash Victims

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Councilmember Mary Cheh (Ward 3) introduced a bill in the D.C. Council to improve access to compensation for crash victims. Under current D.C. law, injured bicyclists and pedestrians can be completely denied compensation after a crash with a motor vehicle even if they were minimally negligent. In 2014,  Councilmember David Grosso (At-Large) introduced a similar bill, but it was ultimately tabled.

The Motor Vehicle Collision Recovery Act of 2015 addresses the same underlying issue of inappropriate denial of compensation to minimally negligent bicyclists, but with slightly different mechanics. Under the proposed bill, contributory negligence could not be used to deny coverage to a bicyclist or pedestrian who was 50% or less responsible for his or her own injuries.

When the bill is available online, we’ll provide deeper analysis and a link to the draft language. For more background about the issue of contributory negligence for crash victims, you can learn more by reading our blog post responding to the 10 most common question.

The bill was co-introduced by Councilmembers Charles Allen (Ward 6), Jack Evans (Ward 2), David Grosso (At-Large), Anita Bonds (At-Large) and co-sponsored by Yvette Alexander (Ward 7). The legislation was referred to the Committee on the Judiciary, chaired by Councilmember Kenyan McDuffie (Ward 5). The Committee must hold a public hearing on the bill and a public mark-up meeting. If the bill were to successfully make it out of committee, the full D.C. Council would then weigh in.

As the bill moves through the legislative process, we will provide updates here on the WABA Blog and our campaign page. You can also sign-up for email updates about this campaigns and we’ll be sure to alert you when action is needed.

Thank you to Councilmember Cheh and today’s co-sponsors and co-introducers for moving this important legislation.

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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Vote on Crash Victim Fairness Bill Postponed

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Today, the Committee on the Judiciary and Public Safety held a legislative mark-up session on a number of bills, including the Bill 20-884 “Vulnerable User Recovery Act of 2014”. The Committee voted to postpone mark-up until next Wednesday, November 12th to allow all involved parties one last opportunity to craft a bill that meets the needs of vulnerable roadway users and the concerns of other stakeholders in the legal community. Councilmembers Jack Evan, Mary Cheh, Anita Bonds, Tommy Wells and David Grosso (not a member of Judiciary Committee) were in attendance at this morning’s mark-up.

Councilmember Tommy Wells and David Gross with WABA and All Walks DC held a joint press conference and rally in support of the legislation before the DC Council. The bill, if passed, would move the District to a fairer negligence standard to enable crash victims to collect compensation from driver’s insurance.

Yesterday’s press conference was attended by dozens of local residents calling on the DC Council to move the bill forward to protect the most vulnerable road users. Following votes from next week’s mark-up, WABA will post the vote results and a legislative scorecard online. You can learn more about the scorecard here and more about WABA’s campaign to bring fairness for crash victims.

As we all wait until next week’s vote, take some time to read the press coverage from yesterday online here, here, here, here, here , here, here and here. Please also take a moment to contact your Councilmember to ask for their support of the bill.

Take Action: Ask DC Council to Support the Bill

Rally for Justice on Thursday at 10am

November 5th Update: Due to weather concerns, the location has change to Room 123 inside the Wilson Building. The press conference will still be held at 10 am.

Join DC Councilmember Tommy Wells, DC Councilmember David Grosso, WABA and All Walks DC on the front steps of the John A. Wilson Building for a press conference and rally in support of legislation to exempt bicyclists from the harsh and unfair contributory negligence standard. You can learn more about our campaign here and read more about this unfair law here, here and here. At the press conference, WABA will introduce our legislative scorecard for this bill ahead of mark-up on Friday. Learn more about the scorecard here.

What: Joint Press Conference and Rally
Who: DC Councilmember Tommy Wells, DC Councilmember David Grosso, Washington Area Bicyclist Association (WABA), All Walks DC.
Date: Thursday, November 6, 2014
Time: 10:00am
Where: Front steps of the John A. Wilson Building, Room 123, 1350 Pennsylvania Avenue, NW, Washington, DC 20004

Sign up on Facebook that you are planning to attend.

Can’t make the press conference? Please email, visit or call your Councilmembers and ask them to support the Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014 (B20-884).

Take Action: Ask DC Council to Support the Bill

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.