There has been a lot of discussion recently surrounding DC’s contributory negligence defense in personal injury actions and how it affects cyclists. The doctrine known as contributory negligence is recognized in only a handful of jurisdictions across the country (including DC, Maryland and Virginia) and bars plaintiffs from recovering for their injuries if they are even 1% at fault. For example, if you’re biking and get doored, you may be prevented from recovery if a police officer tickets you (correctly or not) for riding too close. That may occur even if the driver of the car was negligent in opening the door without checking traffic first.
In 2014, DC Council member David Grosso attempted to change the law by introducing the Bicycle and Motor Vehicle Collision Recovery Amendment Act of 2014 with Council members Mary Cheh and Tommy Wells as co-sponsors. The purpose of the bill was to apportion recovery in bicycle accidents based on the plaintiff’s degree of fault. Under Grosso’s proposal, if the jury found that the cyclist was 75% at fault, their damages would be reduced by 25%. That bill died because of concerns from the insurance industry and how changes to contributory negligence would affect joint and several liability.
Mary Cheh recently revived the proposal to modify DC’s contributory negligence rule for cyclists in her bill, the Motor Vehicle Collision Recovery Act of 2015. This bill is similar to Grosso’s 2014 measure, and Section 3 provides that the negligence of a pedestrian, cyclist or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar or reduce a plaintiff’s recovery unless (1) the plaintiff’s negligence was a proximate cause of the plaintiff’s injury; and (2) the plaintiff’s negligence was greater than the aggregated total amount of negligence of all the defendants that proximately caused the plaintiff’s injury. This standard is usually called modified comparative negligence. Importantly, the bill also explicitly states that the new rule would not “change or affect the doctrine of joint and several liability,” which was a major sticking point for certain factions against Grosso’s 2014 measure.
Cheh’s bill could have a great effect on area cyclists. We will be monitoring the bill closely and will update the blog if there are any major changes affecting DC cyclists.