The Path Forward for Safer Cycling in the District

From WABA

Dear WABA Members and Supporters:

Last Friday, we testified at Councilmember Mendelson's Committee Hearing on Pedestrian and Bicyclist Safety, calling for better enforcement, better training of police officers, and better laws protecting cyclists.  For months, we have been sharing cyclists' stories of enforcement difficulties and unjust laws with the Councilmember and asking for the opportunity to tell these stories publicly and begin the process of change.

Last Friday, we finally got our chance, and for over three hours we heard and told stories of being forced out of bike lanes by double-parked cars and having police refuse to cite the motorist; of being doored and wrongly ticketed for passing; of being hit from behind yet still faulted; and of waking up in a hospital bed to learn that the investigation into the crash was complete without our side ever being heard.  And, sadly, there were the cases in which others spoke for the cyclists and pedestrians because they did not survive to tell their own stories. 

We hope that these stories resonated with Councilmember Mendelson as they did with those of us in the audience, and that he--as oversight committee chair--holds the Metropolitan Police Department responsible for improving.  We will continue pushing him to do so, and we will be there, when Chief Lanier comes before the Council's committee for MPD's annual oversight hearing, to see what level of priority is given to cyclists and vulnerable roadway users.  

But now is the time for DC cyclists to seize the opportunity and momentum created by this hearing.

In our testimony, WABA stressed the need to change the blame-the-victim contributory negligence standard that too often prevents vulnerable roadway users from receiving compensation, even to cover their medical bills.  Most of the nation has already left behind this relic of English common law and adopted a more modern approach to assigning liability that takes into account the comparative levels of fault of the parties rather than simply denying all recovery for the slightest infraction.  

Our focus in the coming weeks will be to change this law in DC, and we will need the energy and support of all of you to make it happen.

Please contribute to our efforts today!

An effort to overturn longstanding legal doctrine that routinely allows the primary guilty party to avoid payment will not be changed without opposition.  We are asking for your support to ensure that this campaign has enough resources to reach its goal: a liability standard that treats roadway users fairly, allocating blame according to actual responsibility, rather than simply preventing compensation for injuries due to minor mistakes or enforcement errors.

Once the District overturns this blame-the-victim liability standard we will be able to pursue other legal changes--such as the Idaho Stop Law mentioned by Councilmember Mendelson at the hearing--without fear that it would lead to automatic denial of recovery for cyclists struck in intersections.  

We are ready to scale up our campaign to pass a Vulnerable Roadway User Law in the District that gets rid of this discriminatory, unjust standard.

We need your energy and your financial support to see this through.

Together, we have created the opportunity.  Now we must deliver the hard work to drive the results. Please take a moment to contribute today, and forward this email to your cyclist and pedestrian friends and neighbors.

Thank you,

The Washington Area Bicyclist Association

Comments

[contrarian]

Contributory negligence in practice becomes no-fault. The premise of no-fault is that you use the roads at your own peril and if you are concerned about risk you can insure yourself against it. The underlying assumption is of rough parity, or specifically, that the only road users are motor vehicles. Those who suffer disproportionately in collisions suffer disproportionately under no-fault or contributory negligence.

I applaud WABA for taking on this issue, in many ways this is the most significant advocacy they have ever done. The question I have is who is the opposition? Who is opposed to liability reform, and why?

[NeilB]

Insurance companies, maybe?

[washcycle]

The same group who opposes it in Maryland - lawyers. In part because they fear losing joint-and-several liability and in part because cyclists are scofflaws (that's what was said at the BAC meeting at lesat).

Maryland's courts may be getting rid of it though.

http://findarticles.com/p/articles/mi_qn4183/is_20110118/ai_n56724517/

[SJE]

Washcycle: actually, lawyers love comparative negligence, because there is always something to fight over. With contributory negligence, the case is quickly dismissed (even if unfair).

In theory contributory negligence should reduce legal costs, avoid plugging up the courts with frivilous cases. If you have to show comparitive negligence, you have an expensive fight ahead and the richer party can outspend you.

Another benefit is that by making cases harder to bring, you get lower insurance premiums. (in theory)

Another problem with comparative negligence is that it could be even more unfair. Lets say you are riding your bike properly, and (say) a pedestrian jumps into your path, and is seriously injured, but you just get a scratch. The jury finds he was 90% at fault, and you are 10% at fault. End of story? No: if the pedestrian is now indigent, he can still charge you for his injuries. You can charge him, but he cannot pay. So, although you are less at fault, you have to pay.

This is why I personally like a "mixed" system, whereby you need to be clearly at fault be denied coverage.

PS: this "vesitage" of English Common Law was mitigated by the existence of courts of equity, which no longer exist in the USA.

[washcycle]

SJE, what you say may be true, but they're the ones opposing it in DC and Maryland. So if they like it, why are they opposing it?

[SJE]

I do not know, but I can guess
(a) that they have learned how to operate under the current system, and change is hard
(b) that they are mostly employed by insurance companies who like the current system. Contributory negligence significantly lowers risk. I suspect that the rates in MD etc do not fully reflect that risk, with the insurance companies happy to pocket the difference.

[Jim Titus]

@SJE: Aren't you referring to proportional negligence (in the 4th paragraph of your penultimate comment)? I thought comparative negligence means that you have to be >50% responsible to be liable (or barred from recovery), that is, the jury compares the negligence of the two parties. But if so, you are potentially liable for 100% of the damages (or get nothing as plaintiff).

Clearly contributory negligence under-deters bad behavior by those driving larger vehicles and possibly over-deters the small. I think that the main "advantage" to defendents may be that some cases are dismissed as a matter of law rather than even going to the jury. Insurance companies hate cases where the party who is mostly to blame gets a large award because they are sympathetic. And lawyers will tell businesses to take all sort of precautions that really are unnecessary in a rational world, but not a world where jury trials can be lotteries.

If contributory negligence is completely repealed, stores in our area will make people take off their skates before enterring. The limited repeal for vulnerable road users, however, ought not have such an effect.

[contrarian]

If contributory negligence is completely repealed, stores in our area will make people take off their skates before enterring. The limited repeal for vulnerable road users, however, ought not have such an effect.

Are we talking about a limited repeal for vulnerable road users, or a complete repeal?

I would think that a complete repeal would be more politically palatable. All you have to do is read the comments in a Post story on transportation to know that there are a lot of people who have zero sympathy for anyone on the road with less than four wheels and four cylinders. At the same time it's hard to imagine that many people outside the legal profession realize how the law currently works -- or that many think it's how it ought to work.

[SJE]

Jim: While I am not familiar with the exact process in DC, MD,VA, under common law the the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim.