By Cory Bilton
If you are injured in an accident in DC, Maryland, or Virginia, one of the first barriers to recovering from the wrongdoer is the concept of contributory negligence. Contributory negligence is a rule that states that if you are partly at fault for your injuries, you can’t recover any money from the other person that caused the accident. This rule can bring about exceedingly harsh results. Even if you were only 1% at fault, and the other person was 99% at fault, you cannot recover anything.
Only five jurisdictions use the harsh contributory negligence rule, and the majority of them are the ones in the DC area. That’s right, DC, Virginia, and Maryland all use the contributory negligence rule (North Carolina and Alabama are the other two). Since so few states use the rule, there are many people who are unaware of it. In fact, I had a guest lecturer in a law school class at GW, a practicing lawyer himself (though not a personal injury lawyer), who said during his lecture, “I don’t think there are any jurisdictions that use contributory negligence anymore.” So, many people may not realize that if they were even the slightest bit to blame, no matter how negligent the other person’s behavior, contributory negligence says you get nothing (as with pretty much all legal topics, there are some exceptions).
Due to the unfair results caused by contributory negligence, many states have rejected contributory negligence. Some states instead use comparative negligence; a rule where each person’s fault is proportionally determined by the jury and money is awarded based on the percentage of the other person’s fault. For example, let’s say that you were in an accident where you were 30% at fault, but the other guy was 70% at fault. If a jury awarded you $10,000, you would actually receive $7,000 from the defendant (the total is reduced by 30%, the amount that was your fault). For most people, myself included, this seems intuitively a better way to determine fault.
Contributory negligence is out of tune with modern society. In fact, one of the main reasons for the doctrine of contributory negligence seems nonsensical today. As the Maryland Court of Appeals wrote in a recent case, Coleman v. Soccer Association of Columbia, where they revisited whether to retain contributory negligence: “[W]hen the contributory negligence standard was first judicially adopted in the United States, the courts at the time were concerned that juries would award to plaintiffs sums that had the potential to stifle ‘newly developing industry.’” That “industry” referred to is not the tech industry, it is the railroad industry. You read that correctly, Maryland adopted contributory negligence in 1847 in a case called Irwin v. Sprigg, before cars were even invented. Despite the fact that protecting the railroad industry is not really a pressing societal problem, and hasn’t been for over 100 years now, the Maryland Court of Appeals went on to say that contributory negligence is the law until the legislature says otherwise.
Everyone injured in an accident in the DC metro area is affected by contributory negligence. However, the rule has an even bigger impact on cyclists. Cyclists riding on the roadway have all the rights and duties of a vehicle, but many drivers and police officers do not fully understand this. This often means that everyone says that cyclists “should” have done something to avoid the collision: should have been riding farther to the right, should have been riding farther to the left, should have been riding on the sidewalk, should have realized I was about to turn (literally, we’ve heard all of these lame excuses when the driver was completely at fault). If the situation involved another car instead of a bicyclist, the defendant wouldn’t make these arguments unless he thought they had an ounce of truth. But it is much easier to use baseless excuses against cyclists (often because the police arrive at the scene after the cyclist is in the emergency room). If any one of these excuses sticks, and a judge or jury believes that the collision was even the smallest bit the cyclist’s own fault, the cyclist stands little chance of recovering anything for her injuries. As cyclists become more numerous, and our metropolitan area continues to encourage more cyclists, DC, Maryland, and Virginia need to put an end to the doctrine of contributory negligence.
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