DC Ends Contributory Negligence Bar to Cyclist, Pedestrian Suits

By overcoming resistance by the insurance industry and enacting the Motor Vehicle Collision Recovery Amendment Act, the District of Columbia is on the verge of removing a major obstacle to pedestrians and bicyclists recovering damages when injured by motorists. (Because of the District’s home rule law, Congress must have 30 days to review the law before it can become final; theoretically, Congress could veto the Council’s new enactment, though that is seen as very unlikely.)

According to D.C. Department of Transportation statistics, each year over 1,000 pedestrians and bicyclists are injured in accidents in the District, and 26 are killed. D.C. also has one of the nation’s highest rates of bicycling commuters. The Metro system’s ongoing problems are likely to increase the numbers of Washingtonians who get around on foot or bike.

The bill, passed unanimously by the D.C. City Council on September 20 and signed by Mayor Muriel Bowser on October 4, would end the contributory negligence defense when a vehicle injures a pedestrian or bike rider. D.C. is one of only five jurisdictions that still retain the contributory negligence defense, along with adjoining Maryland and Virginia, plus Alabama and North Carolina.

The defense allows a motorist predominantly at fault for a crash to escape liability if the injured pedestrian or bicyclist contributed to the mishap in any way, no matter how small. For example, a motorist who’s driving at unlawful speeds at night and runs a red light, makes an illegal turn and collides with a bicyclist could nevertheless escape all liability for the biker rider’s injuries, if able to show the bicycle’s headlamp did not meet brightness standards.

Proponents of the long-sought repeal argued the contributory negligence defense unfairly bars recovery by plaintiffs who may have made only very minor contributions to the accident. Insurance industry opponents of the measure argued the change would increase litigation, raise insurance costs, and produce more uninsured drivers.

The new law, introduced by ward 3 Councilwoman Mary Cheh, would switch the District to a “comparative fault” standard when a bicyclist or pedestrian is injured by a vehicle. If the non-motorists was less than 50% responsible for the injury, he or she could receive damages proportionate to the other party’s level of fault. So if a jaywalking pedestrian sustains $5,000 in injuries after being hit by a speeding car, and the motorist is found to be 80% liable, the pedestrian could receive $4,000 (or 80% of the total $5,000) in damages.

The new law also keeps what tort lawyers refer to as the “last clear chance” rule, which holds that even is the injured party in some way was contributorily negligent, the motorist can still be held responsible if he or she had the last clear chance to avoid the collision.

Despite the unanimous vote on final passage, it appeared for a while a dispute between Council members might keep the bill from coming to a vote. Ward 5 Council member Kenyan McDuffie had talked about offering an amendment that could have split the bill’s supporters. His ultimate decision to withdraw the amendment slowed the bill by several weeks, but paved the way for its unanimous passage.