May 21st, 2018|
Picture this: it’s a sunny Monday morning in January. You wake up in your tiny Adams Morgan apartment, ready to start a new week after a busy holiday season. You need to get the morning briefing printed and on your boss’s desk, so you rush to throw on your clothes, snag a quick Greek yogurt on your way out the door and book it to the bike-share at 15th and Euclid. You hop on your mighty steed and pedal south, mentally going over the bills on the floor today and thinking about whether you will be able to make it to Franklin Hall for trivia tonight. As you come up on the intersection of 15th and U, you see you have a yellow light and pedal faster, quickly glancing at your phone to check the traffic ahead. As you cross the intersection, you are suddenly thrown from your bike by the crunching impact of a car plowing into you as it makes a left onto 15th. The last thing you hear before you black out is the siren of the ambulance on its way.
You wake up in the hospital a few hours later, IV drips hooked up to your arm. The doctor tells you that you were very lucky, as the impact with the car and the pavement didn’t seriously injure your head or neck, though your helmet was cracked in half. You did, however, sustain several broken ribs, a shattered femur and a concussion. You spend the next several days recuperating in the hospital, racking up medical bills and trying to keep abreast of the work coming in from your oh-so-helpful bosses. When you finally get out, you are told that your right leg will never be the same and that the medical bills aren’t quite covered by your insurance. You check the police report and learn that the driver of the other vehicle was cited for reckless driving. Frustrated, you find the number for driver’s insurance company and call them, only to have your claim denied. You seek out legal representation but discover that no lawyer in town will take your case. Has the world gone mad?
What the heck is contributory negligence?
You, my poor unfortunate soul, are the victim of a legal doctrine known as contributory negligence. Contributory negligence, or “contrib” as it is known in some legal circles, is an old and extremely harsh rule that once applied to all negligence claims in the District of Columbia. It is normally raised as a defense to a negligence claim and states that a person is barred from recovery if there is evidence that the plaintiff’s negligence was a substantial factor in causing the injury, even if the defendant was also negligent, so long as the plaintiff’s negligence contributed in some degree to the injury. The burden rests on the defendant to prove the plaintiff’s contributory negligence, which must be done by a preponderance of the evidence (more likely than not). Attorneys generally refer to this as the “1% rule”: if you, as the plaintiff, are found to have contributed even 1% to your injury, then you will be unable to recover any compensation whatsoever. This doctrine frequently results in extremely harsh results for plaintiffs, particularly in the case of automobile collisions with pedestrians, cyclists and other unprotected victims.
Such collisions are not an uncommon occurrence. In 2014 alone there were 844 crashes involving people riding bicycles in the District of Columbia, with 669 of those involving injuries. Many of those injured will receive little to no compensation to cover medical bills, lost wages and damages to their property. The system fails them at every level, and the contributory negligence rule is a big part of that failure.
Just Thank the British
Contributory negligence is an old doctrine with its origins, like the majority of American jurisprudence, in British common law. The doctrine was first used in the 1809 case of Butterfield v. Forrester. In that case, the defendant Forrester placed a wooden pole against the road next to his house as he was repairing it. Butterfield, the plaintiff, was riding quickly down the road at around 8 p.m. and, in the twilight, did not see the pole. He struck the pole squarely and was thrown from his horse, resulting in significant injuries. At the trial, the judge instructed the jury that if someone riding with reasonable care could have avoided the pole, and if the jury found that Butterfield didn’t use reasonable care, the verdict should be for Forrester. The jury found that Butterfield had not used reasonable care, and thus the doctrine of contributory negligence was born.
American law imported the contributory negligence rule along with the rest of British common law, and the majority of states in the country adhered to this doctrine for many years. However, in 1908 the U.S. Congress chose the alternative doctrine of comparative negligence when it enacted the Federal Employer’s Liability Act. Comparative negligence generally requires a much greater amount of negligence on the part of the plaintiff to permit a bar on recovery. State legislative and judiciary bodies soon began to follow suit, with all but four states adopting some form of comparative negligence by the early 1990s. Unfortunately for those of us in the DMV, the five remaining holdouts are Maryland, Virginia, North Carolina, Alabama and the District of Columbia, which have all stubbornly maintained pure contributory negligence rules since the 1800s.
Last Clear Chance: A Very Small Shield Against Contributory Negligence’s Sword
The District of Columbia, unlike several of the other recalcitrant jurisdictions on this list, adds another wrinkle into the mess: the “last clear chance” doctrine. According to this doctrine, there exist certain circumstances where a plaintiff, who would otherwise be barred from recovering by contributory negligence, may recover damages. In order for the doctrine to apply, the plaintiff must have been in a position of danger caused both by the defendant and the plaintiff, and the plaintiff is oblivious of the danger, or is unable to extract themselves from it. While in this position, if the defendant was aware (or should have been aware) of the plaintiff’s danger and inability to rescue themselves, and the defendant fails to exercise reasonable care in avoiding injury to the plaintiff, then the plaintiff may recover despite having been contributorily negligent. While this doctrine does provide a way to avoid some of the the harsh results of contributory negligence, it is a very narrow doctrine that can be difficult to apply practically in a case.
Fisher v. Latney, a recent case from the D.C. Court of Appeals, provides a clear picture of just how narrow this doctrine can be. In that case, the plaintiff was driving on a three-lane road in the far-right lane. The plaintiff proceeded to change lanes from the right lane to the left lane, merging into the lane in front of the defendant’s vehicle. The left bumper of the plaintiff’s vehicle collided with the front of the defendant’s vehicle and, as a result of that collision, the plaintiff was injured. At trial, the plaintiff acknowledged that there was evidence that he was contributorily negligent, but asked the judge to permit the jury to find that the defendant was liable under the last clear chance doctrine. The judge refused and, on appeal, the Court of Appeals upheld his decision. It explained that its reasoning in the case was twofold: first, there was no evidence that the Plaintiff was unable to save himself from the danger that he had put himself in by changing lanes suddenly; and, second, there was no evidence that the defendant was in a position to save the plaintiff, as the plaintiff’s lane change was sudden and unexpected. It is reasoning like this that prevents reliance on the last clear chance doctrine from being a viable option for D.C. plaintiffs, as it doesn’t take much for a court to determine that a Defendant had no opportunity to avoid the crash and save the plaintiff.
A New Hope for Carless Washingtonians
Fortunately for those of use who ride, walk, or suffer through the endless stream of maintenance closures, mismanagement and track fires that are the D.C. Metro, the District of Columbia city government has heard the cries of the carless masses and made a significant change. On November 26, 2016, Mayor Muriel Bowser signed into law the unanimously-approved Motor Vehicle Collision Recovery Act of 2016. The Act carves out a broad exception to the rule of contributory negligence in cases involving a motor vehicle and pedestrians, bicyclists or any other non-motorized users (like skateboarders, Segway-riding tourists or people who still think hoverboards are cool). This exception allows a plaintiff utilizing any non-motorized method of transportation to recover a portion of the total verdict in a case, even if they are found to have been contributorily negligent, so long as they are found to be 50% or less at fault in a collision with a motor vehicle. The portion of the verdict recoverable will be equal to the amount by which the defendant is found to have been at fault in the case, so long as the plaintiff is 50% or less at fault.
So, for example, if a jury finds that an injured bicyclist was 10% negligent in an accident, that bicyclist would recover 90% of the verdict. If the bicyclist were found to be 51% at fault, however, the bicyclist would be found to be contributorily negligent and would recover nothing. This new law thus changes the way contributory negligence can be used, confining its applicability to situations where a plaintiff’s negligence is greater than the aggregated total amount of negligence of the defendant(s). It is also worth noting that the bill expressly preserved the last clear chance doctrine, allowing a contributorily negligent plaintiff to still recover if the defendant was in a position to observe the plaintiff’s danger and had the opportunity to avoid the harm. As such, the District now provides greater protections to pedestrian and bicyclist plaintiffs than Maryland or the Commonwealth of Virginia.
Let us take the case of our hapless Hill staffer from the beginning of this article as an example of this in action. In his case, the fact that he failed to remain aware of his surroundings while passing through the intersection on a yellow light and, more importantly, that he was actively looking at his phone when he was stuck, would raise significant contributory negligence concerns in the minds of any attorney considering their case. This would result in said staffer not receiving the just compensation that he would otherwise be owed and finding himself buried in medical bills. But, under the Motor Vehicle Collision Recovery Act, that same injured staffer (who, remember, was NOT faulted by the police for the crash, while the driver was charged with reckless driving) would likely have a strong case and be able to recover the compensation he is owed.
It’s Time to Update the Law
The District’s decision to make this change to the law has brought it in line with the majority of the country and does much to provide much needed protections to those in the District who are most at-risk for serious injury in a car crash: namely, those who are not protected from injury by a car. While this is a significant step in the right direction for the District, we should also encourage this city and the surrounding states to move forward from harsh, old standards and place all negligence cases under the modern rule of comparative negligence, just like the 46 other states in the U.S. Until then, the District’s many bikers, metro-riders, and pedestrians may travel with the assurance that, if they are struck by a motor vehicle in D.C., they have the best legal protection in the DMV.
 Sinai v. Polinger Co., 498 A.2d 520 (D.C. 1985)
 Aetna Casualty & Surety Co. v. Carter, 549 A.2d 1117
 Gen. Elevator Co. v. D.C., 481 A.2d 116, 119 (D.C. 1984)
 See DDOT Traffic Safety Statistics Report for the District of Columbia(https://ddot.dc.gov/sites/default/files/dc/sites/ddot/publication/attachments/2012-2014%20Annual%20DC%20Crash%20Analysis%20Report.pdf)
 Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)
 The Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. (1908).
 Andrews v. Wilkins, 934 F.2d 1267 (D.C. Cir. 1991).
 Fisher v. Latney, 146 A.3d 88 (D.C. 2016)
 They are not.
 See DC Code § 50-2204.52.