Thursday, June 30, 2016

CityLab: The Legal Policy That Makes Collisions Especially Harrowing for Cyclists

In four states and the District of Columbia, the contributory negligence standard bars most injured bikers from compensation.

As a cyclist, the threat of a collision looms large. On busy streets, you’re acutely aware of your tiny human frame atop a 25-pound steel contraption, fenced in on either side by many-ton behemoths whose slightest movements might derail you, or even hurt you.

This is harrowing enough; the process of filing an insurance claim for any damages incurred should not add to the agony.

Recognizing this, most states abide by a policy of “comparative fault” in the event of a crash. This standard holds that if a cyclist or pedestrian can claim less than 50 percent of responsibility for a dust-up, they’re entitled to either a full insurance payment, or one commensurate with their level of negligence as determined by a jury. The point is, they’re guaranteed some compensation.

But in Maryland, Virginia, North Carolina, Alabama, and Washington, D.C., that is not the case. That’s because in those locales, the standard of contributory negligence has not been written out of the books, like it has been in the rest of the United States. Broadly applied, contributory negligence maintains that if the harmed party is deemed more than 1 percent responsible for an accident or injury, they cannot claim any recovery payment. This standard applies across all conflicts that could lead to a civil lawsuit: workplace injury, medical malpractice, a slip-and-fall on rented property, collisions between cars and pedestrians or cyclists.

The proposed bill went to a vote before the D.C. Council on June 28. Billing and WABA were hopeful that it would pass; however,
 the council decided to review the bill again in two weeks—at which point there won’t be enough time for it to pass before the summer recess. Billing’s frustration over this pushback is undeniable. “Time is of the essence here,” he says. “Really, every day we delay it is another person who is hit and has to face all these issues all over again.”In Washington, D.C., bike advocates have been working since 2014 to pass a bill that would move the compensatory standard away from contributory negligence for injured cyclists and pedestrians. The proposed bill, says Gregory Billing, the executive director of the Washington Area Bicyclist Association (WABA), states that if a cyclist or pedestrian is less than 50 percent responsible for the collision, their recovery compensation cannot be reduced or barred. Essentially, unless a collision is explicitly the fault of a cyclist—they clearly ran a red light, or careened into a parked car while talking on the phone—they must be entitled to full medical coverage through their insurance. The D.C. Council is considering an amendment that would adjust the bill to a more comparative standard—meaning that if the cyclist is deemed 30 percent responsible for an accident, for instance, they’d be entitled only to a 70 percent payout. Either version, Billing says, would be a relief from the contributory negligence policy.

Bruce Deming is the person most injured D.C.-area cyclists turn to after a crash. Known as “The Bike Lawyer,” Deming says, “it’s frankly outrageous that in the capital of our country, we’re still holding to this standard that nobody understands to be anything other than punitive and harsh.”

Comparative negligence, Deming says, originated in England in 1809 as a means to shield employers from having to compensate harmed members of their workforce. Since the advent of workers’ compensation laws around the middle of the 20th century, comparative negligence has largely been eroded from state laws; most jurists in the U.S., Deming says, have condemned the doctrine. The five areas that still retain contributory negligence do so largely out of trepidation toward overhauling such a wide-ranging policy, adds Billing.

D.C.’s approach, Billing says, would grant injured people the level of parity they’re guaranteed in most of the rest of the country, and it shows the potential for contributory negligence to be struck down on a granular level in a way that the four other states could emulate. By championing a bill protecting cyclists and pedestrians from this policy, Billing and WABA hope to give a voice to parties whose voices are largely left out of police reports, and who rarely make it before a jury.

However, the delayed vote now means that these increased protections for cyclists and pedestrians, if passed, will not materialize until the fall. In a tragically ironic twist, a cyclist on a D.C. bikeshare was struck and critically injured near Dupont Circle, just hours removed from the Council procedure on the 28th.
The Washington Post write-up noted:
The collision came the same day the D.C. Council postponed action on legislation that would make it easier for bikers and pedestrians injured in collisions with vehicles to collect damages.
Contributory negligence, Billing says, “is an unknown part of the law that people don’t learn about until they’ve been hurt. Then, they realize that all of these things are stacked against them.”


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