TheWashCycle

2020 legislation seeks to make roads safer and fairer

For DC cyclists, it was a busy legislative year. Four separate pieces of legislation passed in 2020 that will impact cycling either directly or indirectly.

Arguably the most important piece of legislation was the Vision Zero Enhancement Omnibus Amendment Act which passed in October. It is a grab bag of legislation sought by safe street advocates that aims primarily to reduce road violence. The law will

• make it easier to make safety changes to the roadway
• add more sidewalks
• improve crosswalks
• build more protected bike lanes. 
• require DDOT to be more transparent, report more data online, issue curbside loading rules, study every fatal crash, explain what steps it's taking towards Vision Zero in large projects; and to add a protected bike lane to any road where it is called for DC Multimodal Long-Range Transportation Plan if the District undertakes significant work.
• fine developers who don't restore bike and ped facilities when work is done.
• make it illegal to drive with headphones or earbuds in
• ban most right-turns-on-red
• assess points for all distracted driving violations.
• Restore DPW as a member of the Bicycle Advisory Council
• add DMV to the Major Crash Task Force
• lowers the speed limit to 20mph on District roads classified by DDOT as local or collector
• puts teeth in the Ignition Interlock Program by making it possible to take the license and vehicle registration of people who fail to enroll when they have to.
• require the Mayor to send warnings to drivers caught going 8 or more miles per hour over the speed limit by an automated traffic enforcement camera;
• allow the Mayor to negotiate with MD and VA on reciprocal enforcement.
• add more Automatic traffic enforcement cameras. 
• require cyclists to have tail lights at night
• ban the parking of trailers next to bike lanes.  

It is not perfect. Some of the things most needed to make DC streets safer, like rebuild them, take time.  Others, like mandating safer vehicles, the District is powerless to change, but the law moves the ball forward on almost everything safety advocates like the BAC and PAC suggested. 

The District also passed the Shared Fleet Devices Amendment Act of 2020. It mostly exists to regulate the various shared scooter and bike companies after the law focused on just that, instead of a more expansive bill as originally proposed.  The law requires shared vehicles to be available in every ward, bans parking near certain schools and wellness centers and tries to deal with some of the perceived nuisance aspects of scooters by requiring lock-to devices and outlawing bad parking. It will require operators to offer free online safety courses and DDOT to put up signs or markings that signify the CBD (where sidewalk riding is not allowed). And it makes it illegal to scooter while drunk. Since the safety aspects seem mostly designed to protect pedestrians from scooters, and since scooters aren't much of a threat, it doesn't do much to make the roads safer.

The part most of interest to cyclists is that it requires the installation of 1000 new bike racks a year until 2025. 

The Council also expanded Contributory Negligence to almost everyone outside of a car. The only cases that won't be covered are pedestrian-pedestrian crashes (Not sure why) or crashes that occur off roads or sidewalks and instead in places like parking lots, trails and plazas (again, I'm not sure why). It will become effective sometime in early 2021 if the Mayor signs it (she has until 12/24).

Finally, the District passed a law that will make subsidies available to more people who choose not to drive to work. The Transportation Benefits Equity Amendment Act of 2020 requires employers who offer free parking to also offer the employee either a Clean air Transportation Fringe Benefit, an increased contribution to the health coverage, and/or the taxable wages of equal value. This is money that will go to those who walk, bike or take transit to work. The law does create some outs - like paying a fee or putting together a Transportation Demand Management Plan - but even if many choose one of those options, not all will and cyclists could still benefit. This law mirrors a rule the EPS tried to put in place in DC in the 1970's to deal with automobile emissions. That ran into trouble with Congress and then the Reagan administration and contributed to the decades long weakening of the EPA. Should lead to more biking and a need for those 1000 bike racks.

Maryland Pedestrian and Bicycle Access to Schools Act

House Bill 285, the Pedestrian and Bicycle Access to Schools Act, has unanimously passed both the house and the senate in Maryland, and (I think) is only awaiting signature from the Governor.  The bill would require the Department of Transportation to collect and consolidate available information from State and local agencies regarding an unmet need for safe pedestrian and bicycle access to schools in the State; requiring the Department to report its findings to the Governor and the General Assembly on or before January 1, 2020.

It took on quite a few changes in the house, that seem to have limited its scale so that it no longer requires DOT to report recommendations. 

I'm not sure what the thinking is behind this bill. Maybe it's just an attempt to wrap their arms around the size of the problem? Regardless, we'll see how this report turns out I suppose. 

Other bills that passed include creating a state Complete Streets Policy, funding a Complete Streets Program, 

Bills allowing drivers to cross a double yellow line to pass a cyclist, creating a parking cash out and creating a carve out of the contributory negligence rule for pedestrians and cyclists failed. 

DC Council passes contributory negligence fix bill, Bowser signals willingness to sign

In case you haven't heard yet, the DC Council unanimously approved the Motor Vehicle Collision Recovery Amendment Act of 2015 yesterday and also passed the Bicycle and Pedestrian Safety Act of 2016 and transmitted it to the Mayor (with a response due by July 26th). Pretty big day for DC bicycle law. Not to diminish the importance of other laws like the DC Commuter and Parking Act, Bicycle Safety Amendment Act, Bicycle Safety Enhancement Act, etc...to have passed since I started blogging, but from the standpoint of DC legislation, its hard to think of a bigger year. Lots of progress has been made this summer. 

The first time I heard of the contributory negligence bill was back in 2008, when then WABA Executive Director Erik Gilliland wrote the Bicycle Advisory Council (BAC) about it.

Please see the attached file [about the case WMATA v Young].  It’s an appeals court judgment on a case involving a cyclist that was struck and severely injured by a Metro bus driver.  We have been talking about how the contributory negligence policy of DC (and MD and VA) might hinder the ability of cyclists to recover damages in a civil suit if he or she is found to have contributed at least a little bit to a crash. 

Over the next 8 years WABA, BAC, (once they existed) the Pedestrian Advisory Council (PAC) and others have been working to change this law, with WABA doing most of the heavy lifting. Shane Farthing wrote a great piece making the case for the change. GreaterGreaterWashington has been hitting the issue pretty hard for years. In 2014, David Grosso with Tommy Wells and Mary Cheh introduced the first bill that tried to fix this, the Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014, but even as it failed it set up yesterday's eventual success. Within months, Mary Cheh modified it to be more politically palatable (and frankly better for cyclists and pedestrians) and Kenyon McDuffie eventually moved it through committee. Even when he held up the bill last month, it appears to have been due to a general misunderstanding, not opposition. Finally the whole council has supported the change and it appears Mayor Bowser will sign it.

Success, they say, has a lot of fathers, and in this case it is absolutely true.

From the Archives: Contributory Negligence Roundup!

Enjoy your holiday.

There's this case when a 13 year old (who was trespassing on railroad property) in DC was severely injured by a train and his jury verdict was overturned by a judge, in part, because of contributory negligence - and also the Windom case it cites. 

If it be assumed, arguendo, that the railroad was negligent, plaintiff still could not recover because of his own contributory negligence.

Judge Richey found in Windom v. Penn Central Transportation Company, C.A. No. 479-72 (D.D.C.1973), aff'd without opinion, 494 F.2d 1157 (D.C. Cir.1974), that a seven-year, 10-month-old child was contributorily negligent as a matter of law where he sustained injuries upon contact with overhead electrified catenary wires after having climbed to the top of a stationary train.

In short, notwithstanding some factual differences between this case and the precedents cited, the law compels the conclusion that, if the railroad was negligent, plaintiff was guilty of contributory negligence, and that this circumstance, too, prevents him from recovering.

There was a time when a Maryland psychiatrist gave a patient a psychedelic drug before sexually assaulting her, and then in court tried to argue she was contributorily negligent. [The argument was rejected, thankfully]

Whatever the hell this is.

This 1993 article isn't really about contributory negligence, but it does include this line. 

Bike lanes aren't totally safe, as long as couriers remain uncontrolled and potholes unfilled. But they are off-limits for motorists, drunk or sober, and that's nirvana enough. [Yes. Totally off limits.]

I can only find the highbeam version of this 1997 op-ed defending contributory negligence - when Maryland was considering getting rid of it - and this letter rebutting it. But I did find this 1998 article, by then Maryland state treasurer Richard N. Dixon, arguing against the change. 

To establish a comparative negligence system would be fiscally irresponsible and would cost Maryland -- and its taxpayers -- additional money, by subjecting state employees and agencies to many more lawsuits.

Maryland needs to continue to attract, not scare off, businesses. With so many organizations working to promote Maryland's business climate and create jobs, it is senseless to throw up an unneeded roadblock.

There's also this 1998 letter defending it because "it is rarely if ever applied in practice...Thus, the only reason for Maryland to adopt a comparative negligence standard would be that of intellectual honesty" which is as ringing an endorsement as I've ever heard.

How is AAA's John Townsend Lying today?

From the City Paper

In an email, John Townsend, an AAA Mid-Atlantic manager, said many had concerns since "there was never a public hearing on the measure, short-circulating the democratic process."

That's odd, because when you read the Committee Report on this bill it reads

That bill is the predecessor to the one that is being considered now, and in most ways is the same. No one from AA, including John Townsend, bothered to show up to that hearing. I guess it wasn't that important to him. 

 

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 

If you haven't already, it's time to cancel your AAA membership

AAA is fighting the Motor Vehicle Collision Recovery Act that will end contributory negligence for cyclists and pedestrians on the grounds that it will raise insurance rates (which is what one would expect when drivers are required to reimburse cyclists and pedestrians for crashes in which the driver was primarily responsible).

AAA would like to keep insurance rates low by making non-motorized victims of motor vehicle crashes pay for their own surgeries and physical therapy. Why should drivers have to pay for the hips they crush through distracted driving, they figuratively ask?  

They claim that insurance rates could go up by 24.4% - according to a study done by the Insurance Industry. [Here's my bet that it won't go up by anything near that amount]. But if that's true, then drivers are walking away from a lot of shattered tibias and traumatic brain injuries, that they have primarily caused, without the inconvenience of paying for them. It is a sweet set-up, and AAA, which is just looking out for drivers, doesn't want them to have to stop putting Moms in the hospital. 

But they're all about safety.

Here's Jon Townsend's email - [email protected] - just in case.

Motor Vehicle Collision Recovery Act to go for mark-up in July

This is the bill that aims to fix the contributory negligence issue for cyclists and pedestrians. It will reportedly be considered by the Judiciary committee in July, before the recess on the 15th. 

Post coverage of Contrib fix

Here

Council member Mary M. Cheh (D-Ward 3) took the baton from outgoing council member Tommy Wells (D-Ward 6), introducing a bill to reshape city insurance law. Her bill would make it easier for bicyclists and pedestrians to pursue claims against motorists’ insurance policies after accidents. Currently, bicyclists, pedestrians and others are prohibited from recovering damages from a motorist if their actions contributed in any way to an accident, such as a cyclist swerving without warning to avoid a road hazard.

Cheh said her measure was “one piece of a larger discussion” that the council needed to foster this year between drivers and the growing number of bicyclists about how to safely share the road.

The Contrib Fix Bill explained in one chart

As you can see in both the 2014 and 2015 bills the number of cyclist who can recover will go up (but not as much in 2015 as in 2014). But in 2015, the amount of the recovery will be higher.