The intersection of 19th & M Streets, Northwest—where Kevin Washington was struck. Pictured 10.14.2014

The Duties of Prescience & Perfection

How DC’s legal system leaves bike crash victims without access to justice, and the opportunity before the Council to fix it.

DC Councilmembers David Grosso, Tommy Wells, and Mary Cheh recently co-introduced a bill authored by Mr. Grosso that would exempt bicyclist-automobile crashes from the doctrine of contributory negligence.

Contributory negligence is the doctrine that says, essentially, if you do anything to contribute—even 1% of the fault—to the crash that injures you, you are 100% barred from recovery. It’s an outdated and unfair doctrine that’s been abandoned by most of the nation, and this bill is a good one that will fix a major issue that systemically harms cyclists who’ve been involved in crashes.

At the Washington Area Bicyclist Association, I’ve been pushing for this change for years. But because it’s not a topic most people think about, whenever it’s raised publicly there are a lot of questions and misunderstandings—about the bill, about the concepts, and about why it’s a priority. So now is the time to address the questions and misunderstandings, and to explain why this is important.

Things you learn in law school.

I first learned about contributory negligence in law school. It was only a blip on the syllabus, really, because law schools don’t particularly focus on the law of the school’s jurisdiction. They teach you general principles and, they say, “how to think like a lawyer.” For the vast majority of the country, “thinking like a lawyer” means thinking about some version of comparative fault. Everywhere, in fact, except five outdated outliers: DC, Maryland, Virginia, North Carolina, and Alabama.

But one of the great things about being in law school is that the big legal publishing companies give you free access to their online databases. So I looked up a bunch of cases on contrib and found one that’s stuck with me to this day and, in part, led me to stick with this issue at WABA.

This case is frightening and is still good law in the District, relied upon to deny damages to injured cyclists without even examining the behavior of the other party.

So without further ado:

How you can do everything right and be found negligent while biking in DC.

The case of Washington v. A & H Garcias Trash Hauling Co.

This is a case about a crash at 19th and M, downtown.

Today, at the intersection of 19th and M Streets, NW in Washington, DC there is a protected bikeway. Some call it a cycletrack. Some call it a green lane. But its existence is recognition that a lot of people in the city get around by bike. Recent census estimates, which only reliably count those who bike to work almost all the time, say roughly 15,000 people. So when you add in all the trips that happen for other reasons, there are a lot of people biking in Washington, DC — and M Street has become the route of choice for many because of that protected bikeway.

In the late 1980s, none of that was true. Bicyclists were the outliers, and what minimal infrastructure there was for them was simply signage for designated “bicycle routes” with letters and numbers keyed to some long-lost map. And it was the late 1980s when Kevin Washington was right hooked by a trash truck, oddly named “Macho Diesel,” as it turned across him from southbound 19th Street onto westbound M Street.

I don’t know Kevin Washington. I checked the WABA database and wasn’t able to find his name there and haven’t been able to contact him. (There are a lot of Kevin Washingtons on Facebook and I’ve messaged a few, but haven’t found the right one yet.) So all I know of Kevin Washington is what I have read in the court case.

And thus, all I know about Kevin Washington is that he was a courier who one day rode his bike down 19th Street, just as many of us have. To the extent we know from the Court, he rode following all traffic laws. There is no suggestion otherwise, and such suggestion would have been relevant and therefore likely stated if true.

He rode in the right lane on the one-way street as the law required. When the right lane was blocked by a parked car less than two car-lengths from the intersection, Kevin got squeezed in a way that everyone who bikes knows. He stayed in the rightmost lane — as the law puts it, “as far to the right as practicable” — with the parked car to his right and the cab of Macho Diesel, the truck, within his arm’s reach on the left.

And then the truck turned right from the center lane and ran over him.

I don’t have the records from the trial court and so am spared, in this case, the level of detail that comes from reading the trial record or hearing the description of the crash directly from the victim. I only have the opinion of the DC Court of Appeals.

You can read it yourself. It’s short. But for those who don’t want to, here’s what it said:

  1. It’s the bicyclist’s duty, even when following all laws, to anticipate the behavior of a motorist — even behavior that violates the cyclist’s right-of-way.
  2. Kevin Washington failed to anticipate the driver of Macho Diesel making a right turn across his right-of-way and body.
  3. In failing to anticipate and accommodate the Macho Diesel’s right turn across his right-of-way, Kevin Washington failed to meet his duty.
  4. Because of the doctrine of contributory negligence, Kevin Washington’s failure to meet the duty to anticipate the driver’s right hooking him means Kevin cannot recover compensation as a matter of law, and there is no need to even examine the behavior the driver.

So the final thing I know about Kevin Washington is that the legal system screwed him.

The Court requires a cyclist to predict and avoid the negligent driving behaviors of motorists on the roadway, or it finds the cyclist negligent as a matter of law for not doing so.

Sound crazy? It is. And it’s the law of the District of Columbia.

The Court made a mistake in Point 1. And the doctrine of contributory negligence made that mistake devastating to Kevin’s chances of recovery.

Without explicitly stating it, the Court seems to have based its ruling on the general duty of all people on the roadway to keep watch. That’s a general expectation of everyone, and if you aren’t paying attention when you should be and something goes wrong, you were probably negligent.

But the very concept of “right-of-way”—which is an underlying principal of traffic design and engineering—doesn’t work if it comes with a duty to anticipate everyone else’s movements and get out of the way. And aren’t there two parties here? If Kevin had a duty to keep watch for the truck, why didn’t the truck driver have a duty to keep watch for Kevin?

Well, he did. But because contributory negligence operates as an absolute knockout rule for the victim and an absolute shield for the defendant, the Court didn’t ask that question. The driver’s behavior, no matter how egregious a departure from his duty, doesn’t matter if Kevin was deemed to have done any little thing wrong. That’s contributory negligence in a nutshell.

In this case, the DC Court of Appeals said that not getting out of the way of the truck that ran him over in a lane where he was continuing straight and had the right of way was, by itself, a sufficient wrong to throw the case out of court and direct a verdict in favor of the truck driver.

The Court holds the bicyclist to a duty of prescience and avoidance, and contributory negligence adds a duty of perfection.

This is the current state of the law for bicyclists in the District of Columbia.

Want to see it in action in 2014? Here you go:

What you see above is video from a (fortunately) relatively minor crash that escalates after the fact. But don’t focus on the post-crash escalation. That’s a separate matter.

Instead, recognize that the bicyclist is an experienced cyclist using a dedicated bike route that is marked with signage and with sharrows. He’s traveling in a straight line far enough away from parked cars to avoid being doored, which is both legal and safer than the alternative. Everything the cyclist does here is according to law and according to best practices of bicycle safety.

He is then overtaken by a truck. The truck passes well within 3 feet, which is a violation of DC law. That truck then veers in front of him (note the position of the front tire on the white line marking the edge of the travel lane) and slams its brakes—which is also, arguably, unlawful. (I say arguably because unlike laws like the 3 foot passing rule, where we can objectively see a violation from the video, questions of recklessness always involve some level of interpretation.)

So, in the end, the cyclist had some minor damage and submitted a claim to his own auto insurer, whose policy covers his bicycling.

What will the cyclist’s insurer do?

Applying Washington v. A & H Garcias + Contributory Negligence to Deny Coverage

Here’s the denial letter, redacted only to protect identities.

Letter from Geico denying coverage in the claim from the video above.

So the claim is denied. Two things to note:

  1. The insurer stated that the cyclist failed to keep a proper lookout, implying that his duty is to keep lookout for and avoid cars that violate the law and his right-of-way. That’s the effect of Washington v. A & H Garcias.
  2. The insurer denied all coverage as a result, with no discussion of the driver’s behavior or weighing of the relative faults of the parties. That’s the effect of contributory negligence.

And with contributory negligence in place for bike-auto crashes, nothing in this analysis would have been different if the driver has moved a few more inches to the right and the cyclist had been pulled under the truck’s wheels. The cyclist who followed the rules would be found negligent under this standard, and insurers and courts wouldn’t even examine the driver’s behavior.

That’s why we need this bill to pass.

Multiple ways of getting it wrong

With contributory negligence magnifying each mistake.

I spend a lot of time trying to sort out things like “right-of-way” and “duty” with bicyclists. Some of that comes from dealing with crash reports and crash victims. Some of that comes from figuring out what we at WABA should tell people to do to protect their safety and their legal rights.

But here’s the challenge:

I can’t purport to tell you how to protect your legal rights when even the DC Court of Appeals, with the full trial record, gets it this wrong—and then the contributory negligence rule compounds the mistake to deny all recovery.

I can’t purport to tell you how to protect your legal rights when the insurer is able to apply the unjust holding of the DC Court of Appeals to find negligence on the part of twenty-five years of bicyclist-automobile crash victims—and then the contributory negligence rule uses that finding to deny all recovery.

The definition of a bicyclist’s duty in Washington, combined with the contributory negligence doctrine, make it possible that cyclists following the traffic laws and regulations of the District 100% can still be found negligent and denied all recovery, even if the finder-of-fact does everything right. That’s a problem with our legal and public policy. It’s a problem with both the holding of the case and the negligence standard, and both need to be addressed.

But there are other ways to get it wrong, too.

Let’s talk about the “finders-of-fact” and some concerns about how the facts get “found” in bicyclist-automobile cases.

In the “normal” crash between a bike and a car, the bicyclist suffers some level of injury and property damage, the motorist suffers no injury and perhaps some minor property damage, and the crash activates a whole confusing chain of events. Often, the first responders to a crash are police and paramedics. Where injuries to the cyclist are significant, the cyclist is taken to the hospital for treatment. Injuries to the motorist are almost never sufficiently significant to require transport to the hospital, so the police write their report detailing the driver’s side of the story, but without the cyclist’s perspective.

The responding police officer is the first finder-of-fact. Ultimately, it is the police officer who writes the crash report and decides whether to issue citations for any behavior deemed unlawful. So the police officer is the first finder-of-fact, focused on determining whether laws were broken.

The second finder-of-fact is usually the insurance claims adjuster, and this second finder-of-fact gets all of the information gathered and produced by the police, including any situational bias that it contains. Added to this situational bias is whatever bias exists from the financial incentive for the insurer to avoid making payment from its coffers when such payment can be avoided.

So within this context, it is the insurance adjuster who makes the decision whether the insurer will compensate the victim and in what amount. The police decide whether laws were broken. The insurer uses much of the same information, plus further inquiry by the adjuster, to separately determine whether it is obligated to pay for the crash victim’s damages.

Too often, the police and/or the insurance company get it wrong. That’s not because they’re bad people, and it isn’t impugning them — as I was accused of doing by a State Farm in a recent hearing — to say that these finders-of-fact lack training when, in fact, their employers don’t provide them appropriate training.

Systemic Concerns regarding Police as Finders-of-Fact

The District’s own Office of Police Complaints has released several reports finding that there are systemic problems with police response to bicyclist crashes in the District and that better training is needed. These reports made numerous suggestions for improvement. Some were accepted. Many were rejected. And the District has not invested in the level of training necessary to systemically improve DC officers’ understanding of bicycling law and their role in responding post-crash.

The reports are official government documents that make the case clearly. I won’t repeat the arguments here.

Training Concerns regarding Insurance Adjusters as Finders-of-Fact

I don’t know what training insurance companies give to their claims adjusters about biking in the urban environment, the rules governing it, and the specific usage of bike infrastructure. I tried to find out. After the cyclist from the video above received the denial letter (also above), I wrote to GEICO, who made the denial in that case, and a pair of other major auto insurers to ask what training they provided to their adjusters. None have responded.

If any of these companies have a training program that provides this important legal and contextual background on urban bicycling to the employees they empower as finders-of-fact in bicycling cases, I will gladly amend my statements. I still await their responses to my letter.

The bottom line, though, is that there is a great deal of misunderstanding from the initial finders-of-fact in bike-auto crashes, and in a contributory negligence jurisdiction, a minor misunderstanding is the difference between having your medical bills paid or being left with absolutely nothing. There is no middle ground, no room for debate, no weighing of the relative faults of the parties to find a fair arrangement under the circumstances. Contrib is a knockout rule, where the finder-of-fact only has to look for any imperfection in the behavior of the victim to deny all compensation.

Difficulty Finding Representation to Appeal in Court

And even worse, if an insurer denies the claim, the cyclist is going to have a difficult time appealing through the court system. Taking a case to court is both expensive and complex, and most people don’t know how to do it alone. They need lawyers. And once the initial decision-maker has found a cyclist negligent and, because of contrib, pre-judged the economic value of the case to be zero, the cyclist will have a hard time finding an attorney willing to take the economic risk of representing him or her.

Most tort lawyers work on a contingent fee basis, meaning they front the costs of bringing the case and are reimbursed their expenses and paid for their time out of the compensation they achieve for their clients. As should be obvious by this point, depending on the compensation paid to bicyclists— given the Washington holding and the effect of contributory negligence—is a tough way to pay the bills. So many cyclists have difficulty finding attorneys willing to represent them once their claims have been denied.

In hearing the testimony of the opponents of the bill, this is a key point they’ve been missing. They talk about the “last clear chance” rule and the judge’s discretion in the interest of fairness and the importance of jury instructions as mitigating factors to the harshness of the contributory negligence doctrine.

Tell it to the many cyclists who can’t get through the courtroom doors.

For most crash victims, this isn’t about what happens in court. Only a small subset of crash cases resulting in the most grievous injuries and deaths make it to a courtroom. Hundreds of other cyclists facing still-significant (more than recoverable through small claims court, with its limit at $5000), but more moderate levels of damages from medical bills and property damage are economically locked out of the courtroom and need the system to work without having to resort to courts.

How WABA is Pushing to Fix this Mess

And how you can help if you live in DC

First, we decided to deal with contributory negligence and leave the holding in Washington for another day. Impact litigation is beyond our present resources, and is always a somewhat speculative approach to changing public policy. We might have pushed for a legislative change to that holding (and still may do so). But so far, we haven’t found a clear path forward to overturn the case’s holding on the bicyclist’s duty of prescience and avoidance.

Instead, we decided to focus on contributory negligence, where (1) the unfairness of the doctrine is evident on its face, (2) we have strong documentation of its harm to struck cyclists, and (3) the District is part of a dwindling minority of jurisdictions outside the modern jurisprudential trend toward comparative fault.

Ok. How do we overturn contributory negligence?

The bill currently before the Council—the Bicycle and Motor Vehicle Collision Recovery Amendment Act—takes a narrowly tailored approach that simply exempts bike-automobile crashes from the doctrine of contributory negligence. We support the expansion of the bill to include all vulnerable roadway users, but are primarily focused on the application to bicyclists due to the specific vulnerabilities of bicyclists operating in close proximity to motorists, the specific problem with the present negligence standard from the Washington case, and the finder-of-fact concerns mentioned above.

Recently, the Council’s Judiciary Committee held a hearing on the bill at which the individual public witnesses who spoke unanimously supported the bill, as did WABA, several attorneys who actually do represent injured bicyclists, the District’s Bicycle Advisory Council—which exists to inform the Council on issues related to bicycling, the District’s Pedestrian Advisory Council, and pedestrian advocacy All Walks DC.

You can read my testimony for WABA here.

However, two powerful groups oppose the bill: the Trial Lawyers’ Association and the insurance industry.

The Trial Lawyers’ Objection

The Trial Lawyers’ Association is primarily concerned with ensuring that this bill would not start a slippery slope toward abolishing joint and several liability in the District.

Joint and several liability is a legal principle about collectability of damages. It simply means that when an injured person wins a case against a group of defendants, that person can collect all of the awarded damages from any of the defendants. This is important in high-dollar cases to keep the “deep pockets” responsible for the full verdict, even if other parties who don’t have an ability to pay were also partly responsible.

Clearly, this whole idea that the court system should function to make injured people whole, to the extent monetary compensation can, is dependent on the parties found negligent being able to pay. So we appreciate the trial lawyers’ concerns. However, that’s not a good reason to oppose the bill. There are a half-dozen states that have moved to a comparative fault system—as opposed to contrib—and have retained joint and several liability without major issue.

We have the ability to do the same in DC. Fortunately, this change is being proposed as legislation (and being introduced by a set of Councilmembers who are pretty good lawyers, at that). If six other jurisdictions have figured out how to avoid the unfairness of contributory negligence while retaining joint and several liability, I am quite confident that we have enough sense to copy their principles in a way that works in DC.

We shouldn’t let this become a choice between contributory negligence and joint and several liability when it doesn’t have to be.

If we have to choose, we should choose changing contrib over retaining joint and several as a matter of public policy, because contrib affects far more people. But I won’t pursue that argument further, as it’s a false choice that we don’t have to make, and I hope that the Judiciary Committee can forge a compromise that meets the needs of both victims of crashes and the Trial Lawyers’ Association.

The Insurance Industry’s Objections

The insurance companies don’t want to pay more claims. Unlike the Trial Lawyers’ Association, the insurance industry offered little in the way of principled, policy-based concern. Their concerns were self-interestedly economic in nature.

The present system allows them to avoid providing compensation to injured parties who make small mistakes on the roadway. That’s money that doesn’t have to leave their coffers. Of course they object to a change that makes them pay out more. But as a matter of policy, insurers should exist to provide economic mitigation for risk. That means collecting money from people engaging in risky behaviors, pooling it, and using it to compensate those who suffer injuries from the risky behavior.

So when the industry protests that this will result in more cases, YES. The people who are presently injured by a more negligent party and uncompensated will be able to recover damages to pay their medical bills. That’s the point, and that’s a role that fair-minded people without conflicting economic motivations want insurers to play in our society.

And when the industry protests that this will result in higher premiums, well…that’s what they always say. But is it true? They have made the assertion, but not shown any study or analysis to support it. Some quick research on insure.com shows that 43 states with versions of comparative negligence have auto insurance rates lower than DC’s present rates under a contributory negligence regime. So it doesn’t seem that the fairer comparative fault system necessarily makes things more expensive.

Perhaps the best response to the array of slippery slope arguments being asserted by the insurance industry is simply a reality check from across the country. Forty-five states have the fairer comparative fault system. They manage to have functioning insurance markets that don’t rely on victim-blaming non-compensation to dispose of vulnerable user cases, and they are operating just fine. There hasn’t been a nationwide epidemic of people giving up their cars due to insurance rate hikes, nor has there been a spate of insurers filing for bankruptcy protection.

Whatever the insurance industry may assert about the effects of this change, the truth is, forty-six states’ insurance industries operate just fine with a comparative negligence regime. If the DC insurance industry is less able than the rest of the country’s to adapt to legal modernity, it is up to the industry to improve. It should not be up to crash victims to bear the consequences of its failure to do so.

Does this bill have a chance of passing?

It has a chance, but it will have a better chance if you take a moment to tell your councilmembers you support it and would like them to do so as well.

At WABA, we like to think we’re pretty good grassroots advocates. But we know what it means to be opposed by the insurance industry and the Trial Lawyers’ Association. We’ve failed to achieve this goal before because of their opposition, and they can bring resources to the table that we can only counter with reasoned argument and public support for better policy.

On the positive side, we can make a compelling case that the legal situation that contributory negligence puts injured crash victims in is outrageously unfair, at a time our city is seeing a boom in bicycling and our transportation plans, our sustainability plans, and the campaign platforms of the two sitting councilmembers running for Mayor all embrace and support investment in the continued growth of bicycling as a means of transportation.

It would be very difficult to square statements of general support for bicycling with a vote against this bill. The people entrusted with our public policy can’t invest in getting more people to take to the streets by bike, while allowing the continuation of a system that often wrongly finds them negligent, then denies all recovery as a result of that wrongfully-found negligence.

And even where the negligence isn’t wrongly found, the fact that contributory negligence removes the ability of the adjuster, judge, or jury to consider the full story of what happened and the relative fault of the parties is wrong. There’s no reason to remove all discretion or balancing and simply blame the victim every time. The approach is unfair and outdated—and I am optimistic that our councilmembers will recognize it as such and take the opportunity to remedy the situation.

We can’t accept a legal backdrop to biking where the roadway designers and the planners and the regulations say that we have right-of-way, but that disappears when we’re hit because the Court of Appeals insists that we presciently avoid the illegal actions of everyone else on the road. And we especially can’t have a system that deems us negligent for not getting out of motorists way even when they act illegally, then denies us all recovery because our laws have failed to keep pace with the modern trend.

The holding in Washington requires us to be prescient. Contributory negligence requires us to be perfect. That’s not a reasonable standard—and utter denial of recovery for injuries and property damage suffered as a vulnerable roadway user is not a fair price to be asked to pay for failing to meet those standards.

If you’re ever in a crash, this bill could be the difference in whether your medical bills, lost wages, and other costs are covered.

The bill isn’t a magic bullet. It won’t erase the standard in Washington, and it won’t suddenly make police and insurers and appelate judges understand being the vulnerable party on the roadway any better.

But it will eliminate the unfair standard that takes any mistake—real, or perceived by the often-untrained fact-finder—and makes it an absolute bar to the victim’s recovery. In that way, it eliminates the duty of perfection. That’s an important step toward a fair system that the District needs to take to shore up the fairness of our legal system. As our present and future leaders come to embrace and encourage bicycling as a mainstream form of transportation, they have an accompanying obligation to undertake the legal reform needed to give vulnerable roadway users fair access to justice after a crash.

We don’t have the army of lobbyists the insurance industry has sent to the Wilson Building to kill this bill. So we’re depending on the voices of regular people who bike and walk and want a safe, livable community where victims of roadway crashes get a fair hearing with fair rules.

I think we can all imagine ourselves in a situation like Kevin Washington’s: biking lawfully, right-hooked by a driver who didn’t see him, seriously injured, and seeking support from the legal system.

Kevin didn’t get that support. Instead the Court threw out his case because he didn’t do a good enough job of getting out of the way of the truck that illegally right hooked him at an intersection. That’s absurd policy with devastating human consequences, and it could happen to any of us.

Until the Council changes the rule.

If you want better treatment from the legal system if you’re ever in a crash as a bicyclist or a pedestrian, it’s up to you to help us change it.