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Do you have a link to the decision?

One of the perils of being a cyclist is that there is such an exaggerated public perception of the dangers of cycling that juries are liable to view as contributory negligence behavior that is perfectly legal. The mere act of riding on a roadway has been seen as contributory negligence.

If you were in a car, and at an intersection you pulled up in the right lane beside a bus in the left lane, and the bus then pulled into you, it's hard to believe that a jury would consider that partly your fault.

But I'd like to read the case and see where the contributory negligence was found.

I'm just a law student (and very recent District citizen), so I defer this to those with more experience, but it's true that DC has a standard of Contributory Negligence, compared to a more popular (and newer) standard of Comparative Negligence. Only 5 states and DC have this standard. This site makes the distinction pretty clear:

So who did the court find for? It sounds like the court found all four elements of last clear chance and should have sided with the cyclist.

The case is now linked in the first line. And yes they found for the cyclist - though it sounds like it was reluctantly.

I bet the bus driver knew very well the biker was there.

This week, twice have buses passed too close for comfort near me. One was on Columbia Pike, in Arlington, where I took the lane, and the bus passed me speeding with only 2 feet clearance -- my bike wobbled so much I almost lost control (and yes, then the driver cut me off to stop at the bus stop in front of me -- should I mention that I only ride on Columbia Pike for a quarter of a mile?)

Then, on George Mason Dr., also in Arlington, I was on the bike lane and again a bus passed giving me only 2 ft clearance, again my bike wobbled, just not as bad as he wasn't going as fast. And yep, the bus was partially in the bike lane as well (and I only take George Mason for about 100 ft).

So, seems like bus drivers have some sort of vendetta against bikers -- I have had no problem with them so far, then two incidents in a week... I doubt either of those two drivers would have waited behind me if they wanted to make a right turn in front of me.

Busses and trucks are different than cars. I think twice before passing them at an intersection because of their special features.

This past week I had an opportunity to pass two dump truck at a traffic light (within the bike lane). As I approached an angel tapped me on the shoulder and said "It's not a race, take your time". I pulled up behind the trucks (in the middle of the lane) and waited my turn.

Now, I'm here to post about it. VC saved my life.

This law makes it almost impossible for a cyclist to win almost any case. I also find it funny that MD, VA, and DC happen to be in the 5 states that have this standard.

Another specific case of how this works against cyclists is a case in which my friend was struck by a driver who failed to signal a left turn. Although the police report states the driver failed to signal (this also supported by a witness in the report) the cyclist was found 1% at fault and therefore had no chance to win. I could write more about this case, but you get the gist.

Furthermore, a little known fact is that many insurance companies in their "Personal Injury Protection" clause state "Personal injury protection coverage does not apply to any pedestrian other than a Maryland resident (or insert name of state insurer resides in) injured in an accident involving a covered automobile, if the accident occurs outside the state of Maryland.

The above is the policy for the Maryland Automobile Insurance Fund (MAIF)

Just more fuel for the fire that keeps burning cyclists involved in car crashes.

Henry, I was nailed in a right hook collision back in October by a woman who decided it was ok to take a right turn from a straight lane (AND no turn signal). Broken collarbone, bruised ribs. Of course her insurance company pulled this 1% at fault crap. She was cited for failure to yield, but being a lawyers herself, I assume she fought it. Of course her first act was to get on her cell phone and call her husband (or her lawyer) to ask what she should do as I was writhing in pain in the middle of the intersection during rush hour in Tysons. Lucky someone I believed to be a doctor pulled over and checked my out and chastised her for not calling an ambulance. At least I was insured.

Of course a local lawyer specializing in cyclist accidents told me I was pretty much outta luck unless I could get a bunch of witnesses.

This contributory negligence thing is out of hand, even in the case of cars. My insurance agent actually to me another insurance company tried to pull this with another of his clients. The poor sap was simply driving down I-66 minding his own business when another motorist entered the highway at an excessive speed and completely out of control and slammed into the man. The insurance company said he should have attempted to get out of the way and was therefore 1% at fault. The guy was completely blindsided. That's like saying you should've tried to get out of the way of a stray bullet that hit you.


Henry --

I guess we can take small comfort that cyclists are not pedestrians.

This case relies on an earlier case, Washingon v. Garcias, to create contributory negligence. In Washington v. Garcias, the court ruled: "[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.

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, and the sentiment that cyclists are second-class users of the roadway. It actually runs counter to DC law, which states that cyclists have the same rights and duties as operators of vehicles.

I agree with the general sentiment that in a jurisdiction with contributory negligence, it is almost impossible for a plaintiff to prevail in a vehicle crash. The duty imposed by Washington v. Garcias removes any hope a cyclist has. Can you imagine a crash that couldn't have been avoided if the cyclist had simply anticipated what the motorist was going to do? There is a chance that a future court will overturn Washington v. Garcias. If the current law was adopted after 1964, when Washington was handed down, then a court would properly see that the later law supercedes the earlier ruling.

"Last clear chance" exists because contributory negligence offends people's sense of basic fairness. Juries -- and judges -- will hang onto the thinnest legal straw if they think they are doing the right thing.

what I forgot to include was that they consider Cyclists as pedestrians. that includes insurance companies.

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