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Good post. I'll offer some different takes:

Contributory negligence doctrine benefits those who injure others at the expense of those who are injured. Since the costs of injuries are pushed onto the injured there is reduced incentive on the part of parties engaged in dangerous activities to make them safer. There is a net societal loss as the level of injuries is higher than it would be if people were forced to bear the cost of their actions.

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.

Contributory negligence runs counter to general notions of fairness. I think most people would agree the with idea that if two people are both partly to blame for something, they should be held responsible in proportion to their share of the blame.

Finally, I have to quibble with your description of Washington v. Garcias.

In Washington v. Garcias, the court wrote: "Washington, the cyclist] was fully chargeable with the knowledge that when the truck reached M Street on a green light and proceeded into the intersection, it would either go straight ahead or turn onto M Street. The bicyclist, for his own safety, was obliged to pay close attention to the movements of the truck, and to anticipate the possibility that it might turn right, toward the bicycle.
[H]e knew that a right turn was one of three possible directions the truck might take upon reaching the intersection." Washington was found to have contributory negligence for not anticipating that a truck would illegally turn into him.

I added the italics on "for his own safety" because that's where the court reached. Washington v. Garcias created a new duty for operators of bicycles -- and only for operators of bicycles: the duty to anticipate any possible action on the part of a motorist, even an illegal action. This is a duty that is not present anywhere in DC law; it was simply made up out of thin air by the court, as a codification of the societal bias against cyclists, the sentiment that cyclists are second-class users of the roadway, and the feeling that cycling on the roadway is an inherently reckless activity. It actually runs counter to DC law, which states that cyclists have the same rights and duties as operators of vehicles.

I think Contrarian offers a very astute point, particularly toward the new interpretation (really invention) in regards to DC law.

I think sometimes we box ourselves in by seeking legal reforms. The easiest way to lobby this issue in Maryland is to resurrect the Progressive Auto ordeal from a few weeks ago. It's sad to say that not many folks heed notice of us, partially due to their own bias and partially due to them viewing our mode of transportation as a recreational pasttime, but they did take major notice of the Progessive Auto ordeal. It cost Progressive tons of customers and some MD lawmaker's found it fascinating as well. That's your 'in' on contributory negligence and that's how you attract attention on it. We would be happy beneficiaries of such a change. My two cents.

@contrarian. Thanks. I think we agree that the problem with the doctrine is greatest when one class is inherently more likely to harm the other, such as the case of bike-car or ped-car crashes.

I agree that contribtuory negligence is a type of no-fault rule, and that it may tend to cause drivers to be less careful than they should be. That's a key problem with that doctrine. I find myself ambivalent about the general doctrine, because there are advantages to a no-fault regime, when all the transactions costs are considered--for cases where there is rough parity, such as driver-driver crashes. The doctrine need not be a type of moral hazard because no-fault insurance raises rates whenever one is in a crash, regardless of who had the greater fault.

Moreover, the doctrine helps us to avoid overcompensating the negligent but sympathetic plaintiff who sues the less negligent defendant with deep pockets. Failure to tell a soccer coach not to swing on a portable goal seems far less negligent than actually swiminging on the goals, but if the jury felt sorry for the coach it might find otherwise.

I don't think we disagree too much on the Washington case. Here I am merely trying to point out that the doctrine is unfair. The ability of courts to surprise everybody with new duties that seem wroong applies to both plaintiffs and defendants. Note, however, that the proposal to shield cyclists complying with vehicle code from contributory negligence, would prevent courts from creating new forms of contributory negligence (and over-rule the Washington case if enacted in DC).

What was shocking about Washington was that the cyclist was contributorily negligent as a matter of law. I doubt that courts will extent that holding to door zones or other cases where riding too far right contributed to the accident. But the fact that in this case it was negligent as a matter of law suggests to me that those other instances would at least be given to a jury to decide.


@T: If only contributory negligence were as unpopular as an insurance company taking the side of the bad driver against the heirs of the deceased. But I think that in Maryland, as elsewhere, most people oppose compensating the victims of their own foolish behavior. I'd put my money on thoughtful judges and legislatures over social media on that one.

In case you are not familiar with the case Jim T referenced here is a brief summary (what I could find via a quick search) ...

Here's a summary of the story. Young woman killed by drunk driver. The drunk only has $25k worth of insurance, obviously not enough. Young woman has $100k of underinsured coverage and makes a claim. Progressive goes to court and seemingly helps the drunk try to prove that the young woman was partially at fault. Outrage ensues.

A couple of things. One: What's not mentioned in the article is that Maryland is a state that adheres to the old contributory negligence doctrine. If it was proven that the woman was only 1% at fault, she would be denied all recovery. Surely if the insurance company had anything to base that on, they would be doing wrong by their shareholders and other policy holders not to pursue that strategy.

Two: The attorney in the article talks about bad faith. I was under the impression that bad faith in insurance law only applied when your insurance company either refuses or does a half assed job of protecting YOU from exposure to personal liability on a claim. This didn't happen here. It's basically a disagreement between the woman and Progressive, so why shouldn't they be able to assert their rights?

At first blush I was outraged at Progressive's conduct, but as sad as this story is, it seems reasonable if they actually thought this woman might have been 1% at fault.
http://boards.straightdope.com/sdmb/showthread.php?t=662372

In Maryland, 70% of civil suits involving a pedestrian and a vehicle the pedestrian is at fault. Recently, as an example, my friend was hit by a truck on my block walking away from a tow truck with flashing sirens. In spite of Maryland's requirement that the driver yield right of way when approaching a vehicle using authorized flashing lights and slow to a prudent speed, he swerved around the truck and struck my friend resulting in medical bills and injuries.

My friend, because he was walking on *my property* but on the right hand side of the road as opposed to the left hand side of the road, was found to be contributory negligent and therefore not entitled to any relief.

Contributory negligence makes a lot of sense when you're talking about someone walking on ice with disregard for their own safety - however to infer that a pedestrian or cyclist needs to hold themselves to a higher standard of vigilance than someone driving a 2000+lbs vehicle is backwards and flies in the face of common sense. People holding hammers need to watch where they swing, I shouldn't need to walk around the edge of my property worrying about vehicles striking me down because I'm on the side of the road where my house is...

@Greg: Your final paragraph is consistent with this thread concerning the problem with contributory negligence when applied to collisions between two inequally-sized bodies.

But I have a few questions for clarification about the case you site, because your friend need not have been contributorily negligent and one wonders about his lawyer. Most important, it sounds like your friend was complying with the law. If he was on your property, then he was clearly not in the roadway or even on the sidewalk. I question the idea that there is a duty to warlk against the flow of traffic when on private property--or even on a paved sidewalk. No law requires one to walk on the left side of a shoulder--the law only applies to the roadway.

So tell me how the lawyer handled that argument? Did he ask for a ruling that there is no such duty" A judge might have been able to hold no such duty as a matter of law.

And even if he was negligent, why was he not saved by the last clear chance rule?

Wow. Didn't realize that "Maryland, Alabama, North Carolina, Virginia, South Dakota and Washington DC" are the only states that operate under contributory negligence standards.

Seriously, WTF?

In the case of South Dakota, the plaintiff's negligence has to be "more than slight". Drivers who stopped at stop signs but misjudged the speed of oncomming traffic have won cases when the vehicle with the right of way was apparently speeding. A few other states have contributory negligence under some circumstances (e.g. malpractice) while Maryland has repealed it in some csaes (e.g. failure to wear a seat belt).

I think it survives in Maryland mainly because few people are clamoring to replace it and the Legislature does not want to enact a law that will be denounced as "antibusiness" unless it gets a more tangible benefit (e.g. cleaning up the Bay, health insurance for Walmart employees...)

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