Until recently, the District of
Columbia has long recognized the doctrine of contributory negligence as a
complete defense in a negligence action.
Under contributory negligence, if a plaintiff is involved in an accident
and even 1% at fault for what happened, the plaintiff is precluded from
recovery. Currently, the District of
Columbia and only four states use the contributory negligence standard:
Alabama, Maryland, North Carolina, and Virginia. Other states have employed one
version or another of comparative negligence, which compares the fault of the
parties and allocates responsibility to pay damages according to percentage of
fault.
As of November 26, 2016, the District
of Columbia enacted The Motor Vehicle Collision Recovery Act of 2016, carving
out a specific exception to the District's legal negligence standard in
automobile accidents involving a motor vehicle and pedestrians, bicyclists, or
other non-motorized users (like Segways and skateboards). The law enables a plaintiff pedestrian or
bicyclist to recover if they are negligent, as long as they are found to be 50%
or less at fault in an accident with a motor vehicle. Specifically, the Act states as follows:
(a) The negligence of a pedestrian,
bicyclist, or other non-motorized user of a public highway involved in a
collision with a motor vehicle shall not bar the plaintiff’s recovery in any
civil action unless the plaintiff’s negligence is:
(1) A proximate cause of the plaintiff’s injury;
and
(2) Greater than the aggregated total
amount of negligence of all the defendants that proximately caused the
plaintiff’s injury.
Motor Vehicle Collision Recovery Act
of 2016, 2015 Bill Text DC B. 4
In effect, the new law introduces
“modified” comparative negligence in cases involving accidents between
motorized vehicles and pedestrians or bicyclists. By illustration, if a jury finds that an
injured bicyclist was 25% negligent in an accident, the bicyclist would recover
75% of the verdict. If the bicyclist
were found to be 75% at fault, however, the bicyclist would be found to be
contributory negligent and would recover nothing. This 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).
Notably, the bill expressly preserves
the doctrine of “last clear chance,” allowing a contributory negligent
plaintiff to still recover if the defendant was in a position to observe the
peril of the plaintiff and had the opportunity to avoid the harm. The Act also does not affect the doctrine of
joint and several liability.
When dealing with an accident
involving a pedestrian or bicyclist, the application of negligence is uniquely
fact and situation specific. It may be that comparative negligence was
promulgated as a result of the District’s urban environment and because
pedestrians and cyclists, taken together, represent the most vulnerable users
of our roadways. In contrast, Maryland has
long maintained the doctrine of contributory negligence over instituting a
comparative negligence standard, despite being brought forth before the
Maryland General Assembly on numerous occasions within the past several years. Only time will tell what effect this law will
have on the courts, litigation, insurance costs, and costs to individuals and
businesses within the District.
