Contributory Negligence fix bill is reportedly in big trouble

This post has been updated to reflect what McDuffie is proposing.

With a vote scheduled for today, the Motor Vehicle Collision Recovery Act of 2016 (aka: the bill that will end the use of contributory negligence to deny coverage to a vulnerable road user (VRU) who was 50% or less responsible for her injuries) which seemed to be sailing along is now in trouble according to Martin Di Caro. 

In a series of tweets yesterday, Di Caro reported that Councilmember McDuffie "would rather not see [the] bike safety bill taken up without his amendment tomorrow. Could he move to table?" and that he would propose an amendment during the Council's legislative session, which Mary Cheh would oppose. 

The amendment, Di Caro reported today, would change the standard from the one Mary Cheh proposed in 2015 to a hybrid between that and what was proposed when Tommy Wells tried to fix this in 2014 (the bill Cheh helped kill). Here's that explained in one chart.

The red line is what is currently in place. The blue line is what Cheh's law would propose and the green line is what was proposed in 2014. McDuffie is proposing the purple line such that when the vulnerable road user (VRU) is less than 50% at fault they get a payment in proportion to the driver's fault, but when they're more than 50% at fault they get nothing. This is what the committee report calls the Modified Comparative <50%. [Update: The committee report does recommend that DC law institute a modified comparative negligence standard in the District, even though it passed the bill as written by Cheh. That report comes from McDuffie and I have no idea who writes them.]

This is a definite downgrade and Mary Cheh is right to fight the amendment. It means that when drivers are less than fully at fault but primarily at fault, they get to use comparative negligence, but when they're somewhat at fault but not primarily at fault they pay nothing. 51% at fault - only pay 51% of the damages. 49% at fault, pay nothing. It's definitely to the advantage of the drivers (if you doubt that ask yourself if they would be willing to reverse it). 

It's true that the standard the current bill is proposing would be novel and that no one in the country uses it (while 34 states use the Modified Comparative <50% standard), but that doesn't mean it isn't less fair. If the proposal is to go to pure comparative - that would be acceptable, but despite being better than the status quo, modified comparative still puts an undue burden on vulnerable road users.

Of course one could argue that even pure comparative (PC) isn't quite as good. If every VRU who is injured sued under both formats (PC and Cheh's) than - on average - you'd expect the same amount of money to flow from drivers/insurance companies to  (assuming that fault is evenly distributed) because the area under the curves is the same. It would just that more would go to VRUs who are a little bit at fault and none to VRUs who are a lot at fault. But not every VRU would sue under PC. VRUs who are primarily at fault wouldn't sue to get 5-10% compensation, since they'd be at higher risk of getting nothing. So the curve for comparative payouts would taper out at the lower numbers. This would mean that under PC, less money would flow from at-fault drivers to injured VRUs than under Cheh's bill. Driver's who were primarily at fault would only pay for some of the damage, and drivers who are little at fault would pay nothing - much as is the case in modified comparative. 

WABA had a rally this morning outside of the Wilson Building from 8:30 to 9:15 am.If you couldn't make it, write your CM 

Comments

[DaveS]

Cheh is right that her version is better, but everyone agrees that contributory negligence must end in DC.

It can end today, either way, but it remains to be seen if both Cheh and McDuffie will put people ahead of power.

[DaveS]

Update from Chambers: nope, McDuffie is playing by middle school rules. He pulled it rather than lose, and it's bumped to the next regular legislative session - which is either mid-July or October, thanks to statehood &c.

Dammit.

(Also lost in the shuffle, apparently, is the Bike/Ped safety amendment act of 2016.)

[washcycle]

McDuffie is dropping in my estimation. If he doesn't have the votes, then just let it go forward. Also I was reading the committee notes on the Bike and Ped safety act in which he generally worried that it was too tough on bad actors. He was concerned, for example, about the rule taking away the license of those convicted of a 3rd DUI/DWI. CM Allen, OTOH, was concerned the bill didn't go far enough.

[DaveS]

(Had a reply going earlier I but got into a very informative face-to-face discussion with Allen's office.)

From what I learned today, McDuffie's amended bill is supposed to be basically identical to Wells's - with the exception that McDuffie's addresses the "joint and several" concerns that scuttled the previous effort.

Cheh's version is actually the outlier, both in what we've been working toward* and in what the predominant liability laws of the country look like.

The bike and ped safety amendment act was on the consent agenda. I missed when it happened due to the comings and goings of a couple of large labor groups.

[DaveS]

*Let's just stipulate that none of this is the world-class approach to things like Vision Zero and justice, okay?

[washcycle]

I got an email from CM Allen on this. Here's an excerpt

"Like many others, my family is a one-car household. Some days we bike, some days we drive, some days we Metro, and some days we simply walk. Like you, I want a city where I'm treated fairly no matter how I choose to -- or need to -- get around.

Our current laws protecting pedestrians and cyclists are inadequate, unfair, and out-of-date. In one role or another, I've worked to get these laws reformed for over four years -- first as a Council staffer and now as your Councilmember. Finally, we're on the cusp of making that happen. The District is one of only a handful of jurisdictions left that have not made the changes needed to give people a fair chance at justice in the event of a collision and injury. I was proud to co-introduce the Motor Vehicle Collision Recovery Act of 2016 and I will be proud to vote in support of it on July 12th.

This vote is too important to lose. There are powerful interests working to defeat this bill, but we can't let them win. Over the next two weeks, I will work with my colleagues who have expressed some concerns about this bill to help make sure we have the votes we need to pass this important legislation."

[washcycle]

Wells' bill was Pure Comparative and McDuffie appears to be looking for a Modified Comparative.

If McDuffie's amendment passes, I would still want council to vote for the bill.

If Cheh, et. al. don't have enough votes to pass now, maybe a switch to Pure Comparative will work as a compromise. I definitely don't want perfect to be the enemy of good enough; but if Cheh thinks she has the votes, she should keep pushing for the law as written.

[SJE]

Drunk driver hits man and drives around for 3/4 mile with body in windshield. This happened in CA, but if it happened in DC, what if he was 1% in the wrong?

https://www.washingtonpost.com/news/morning-mix/wp/2016/06/28/police-calif-woman-drives-for-almost-a-mile-with-mans-body-lodged-in-windshield-severed-leg-on-trunk/?tid=hybrid_collaborative_2_na