Contributory Negligence and Last Clear Chance

Here's a little DC law stemming from a case WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. Mark G. YOUNG.

This case involves a collision between a bus and a bicycle in a District of Columbia intersection. The two impacted when the bus driver, while making a right turn, cut off the bicyclist, who was in the lane to the right of the bus. The bicyclist struck the side of the bus, lost his balance, and fell under the bus.

The intersection at question is Calvert and Cleveland. An odd intersection

Motorists entering the intersection from the east on Calvert Street are presented with four options: a sharp right turn onto 29th Street heading north, a moderate right onto Cleveland Avenue heading northwest, a moderate left onto 29th Street heading southwest, and a sharp left onto McGill Terrace heading south. Because Calvert Street ends at the intersection, motorists cannot continue straight ahead on Calvert.

There is some question as to the facts here. Most witnesses have the cyclist in the right lane and one on the sidewalk. Some say the bus was in the right lane and others the left. The cyclist claimed the bus driver was in the left lane and he was in the right lane. He claimed the driver made the hard right turn from the left lane onto 29th and that he (the cyclist) was unable to avoid hitting the bus. The jury agreed finding the WMATA driver was negligent. If that were it, it would be a normal case. But they also found the cyclist was contributorily negligent. Normally

A plaintiff in a negligence action generally cannot recover when he is found contributorily negligent.

Which I read - again, I am not a lawyer - as: if you're even 1% responsible then you are barred from any sort of positive verdict. Harsh. In a case cited in this one, Washington v. A & H Garcias
Trash Hauling Co. the cyclist was hit by a right turning garbage truck,  but he admitted he was unaware of the truck or its turn signal and therefore lost the case.

That's the contributory negligence part. There's also this

Under the doctrine of last clear chance, a plaintiff may recover, despite his own contributory negligence, if he can demonstrate that the defendant had a superior opportunity to avoid the accident

To recover under the last clear chance doctrine, plaintiff must prove by a preponderance of the evidence: (1) that the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate himself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of his oblivion to it or his inability to extricate himself from it; and (4) that the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiff's inability to extricate himself from it, but failed to do so.

This case, according to the decision was very close, but the court walked through it like this.

we must point out that the elements of last clear chance build on one another: the second depends on proof of the first, the third on the second, and so on. Thus, although the first element is not at issue in this appeal, we begin our analysis there to determine when Mr. Young arrived at a position of peril. The evidence showed that Young reached that point when he negligently rode up alongside a bus that was going to make an improper right turn from the left lane. Prior to that moment, the possibility of danger existed, but there was still an opportunity for Young to avoid it. Once he arrived at the side of the bus, however, he was in a dangerous position.

On the second element

The specific danger posed by the bus was not obvious until it abruptly turned right, but any vehicle as big as a bus poses a threat to smaller vehicles, especially bicycles. But the evidence, particularly Mr.  Young's own testimony, would permit a reasonable jury to find that he was in an inextricable position of peril when he rode up alongside the bus.

On the third

we conclude that a reasonable jury could find that the bus driver knew or should have known that Young was in a position of peril and was unable to extricate himself from that position. The diagrams contained in WMATA's SOP for the positioning of mirrors on a bus indicate that the right exterior mirror should be positioned so that the driver can see objects that are near the rear of the bus

And on the fourth

because the driver reasonably should have seen Young before initiating the right turn, he could have avoided the accident by stopping or otherwise aborting the turn.

Since right hooks are so common - and that's how Alice Swanson was hit - it's useful to understand the law,  which places a great deal of responsibility on you to protect yourself (which is how I would argue it should be). For more, and an expert opinion on cycling and the law, I recommend Bicycling and the Law by Bob Mionske. Also check out his site and his regular column on the subject.

Comments

[Contrarian]

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.

[Andy]

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:
http://www.the-injury-lawyer-directory.com/negligence.html

[Contrarian]

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.

[washcycle]

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

[Carla]

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.

[Tom]

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.

[Henry]

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.

[Pete]

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.

Insanity....

[Contrarian]

Henry --

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

[Contrarian]

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.

[Henry]

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