Tuesday, June 6, 2017

DC Moves to Comparative Negligence for Pedestrians and Bikers

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.