By Cory Bilton.

Last week, the DC City Council held a public hearing a new bill, Bill 20-0884, that would apply comparative negligence to bicycle collisions, instead of contributory negligence. The hearing Monday provided time for concerned citizens to share their views on whether comparative negligence should be adopted and whether bicyclists would benefit from the switch. I’ve shared my opinions before about how contributory negligence disproportionately affects bicyclists. So as soon as I heard about this bill, I immediately gave it two thumbs up, and signed up to testify in favor of it. Since I think this topic needs further public attention and thought, I’ll recap the situation and the arguments on both sides of the issue.

What is Contributory Negligence?

Contributory negligence is a legal doctrine that says that if a person is injured by someone else’s negligence, the injured person is barred from recovering if the injured person contributed in any way to his injuries. Another common way to phrase this is that if the injured person was even 1% at fault, and the other person is 99% at fault, the injured person is barred from any recovery. Contributory negligence is an old doctrine. While it used to be the law of the land hundreds of years ago, it is now only the law of the land in four states (Maryland, Virginia, North Carolina, Alabama) and the District of Columbia.

What is Comparative Negligence?

The other forty-six states use some variety of comparative negligence. Comparative negligence, in its purest form, assigns each party a percentage of the fault for the injury; the injured person is then limited to collecting only the amount that was due to the other party. For example, let’s say the injured person suffered $100,000 in damage because of his injuries. If the injured person was 30% at fault and the other party was 70% at fault, the injured person could collect $70,000 (ie 70%) of the damage from the other party.

Text of Bill 20-0884

The key text of the bill currently reads:

“Any individual who, while riding a bicycle, is involved in a collision with a motor vehicle, shall have the total damages reduced in proportion to the relative degree of fault which is the proximate cause of the injury sustained in the collision.”

How does Contributory Negligence Affect Bicyclists?

Unfortunately, it’s far easier to make a compelling claim of contributory negligence against a cyclist than it is another motorist. The reason for this is that many motorists, police officers, witnesses, judges, attorneys, and jurors are not clear about the duty of bicyclists on the roadway. Bicyclists are often incorrectly blamed as having broken a rule of the road or having violated some law. For example, many people seem to believe that bicyclists have a duty to stay out of the way of motorists. This is simply not true. Bicyclists riding on the roadway have all the rights and duties of a motorist.

In addition to often being incorrectly blamed for causing a collision, even a bicyclist that shares some percentage of the blame suffers 100% of the physical injury. I’ve never heard of a motorist suffering physical injury in a collision with a bicyclist. So the effect of contributory negligence in bicycle collisions is that the party that is always injured is often unable to seek payment for those injuries.

DC’s new bike bill would help fix this problem.

The Opposition: Education Will Solve the Problem

Those on the other side of the debate argue that education is the sole antidote to this problem. They argue that bicycle collisions are the result of bicyclists or motorists breaking the law. To keep this from happening, we need only educate bicyclists and motorists. They say that creating any special legal subclass or method of recovery for bicyclists would distort the legal system in some unspecified way.

I would certainly agree that education is important and we need more of it for both bicyclists and motorists. But even with highly educated commuters, drivers, and bicyclists, the inequities I outlined above will still be a real threat to bicyclists (and incidentally, no threat to motorists). It is always going to be easy to blame bicyclists for being at fault and bicyclists are always going to suffer all of the physical harm.

Conclusion: Comparative Negligence is an Improvement

I think switching to comparative negligence for collisions involving bicyclists (and pedestrians) would be a huge improvement. The forty-six states that apply some form of comparative negligence to all collisions (as does federal law and most other developed countries) are not contemplating switching back to contributory negligence. We live in an area where the minority (and antiquated) view, contributory negligence, still applies. Bill 20-884 can be the first step towards adopting the fairer, more modern, approach to handling negligence cases.

Please review my disclaimer.