BRIEFING MEMORANDUM

DT: June 17, 2010

TO: Members of the Council of the District of Columbia & their Staff
FR: Shane Farthing, Executive Director, Washington Area Bicyclist Association (WABA)
RE: Supporting Overturning the Contributory Negligence Doctrine for Bicycle Accidents by Act of
Council

BRIEF ISSUE:

The District of Columbia’s continued recognition of contributory negligence as a complete defense in a

negligence action, when combined with the uneven enforcement of bicycle laws by the District’s police
officers and lack of understanding of bicycle laws among the general public (i.e. potential jurors), makes
recovery for damages suffered by cyclists injured in collisions with motor vehicles difficult and
unpredictable.

To ensure fairness of recovery for injury, to promote fairness in the law, and to modernize the
approach of the District of Columbia in the field, the Council should cease recognition of contributory
negligence as a complete defense to a tort claim, and should instead move to a more progressive
standard based on a model of comparative negligence.

RESEARCH:

Contributory negligence is a common law defense to a negligence (tort) action. A jurisdiction that
recognized contributory negligence as a complete defense to a negligence claim disallows all recovery by
the plaintiff if the finder of fact determines that the plaintiff contributed (through her own negligence)
to the harm suffered in any degree.

Black’s Law Dictionary (7th Ed., 2000) defines the contributory-negligence doctrine as “The principle that
completely bars a plaintiff’s recovery if the damage suffered is partly the plaintiff’s own fault,” and
states within the definition that “Most states have abolished this doctrine and have adopted instead a
comparative-negligence scheme.” Currently, only four states (Alabama, North Carolina, Virginia, and
Maryland) and the District of Columbia retain the contributory-negligence doctrine as law.

The current authority for contributory-negligence doctrine in the District’s common law is Wingfield v.
Peoples’ Drug Store, Inc., 379 A. 2d 685, 687 (D.C. App. 1977), stating that “the District of Columbia does
not recognize different degrees of contributory negligence. The rule is simply that contributory
negligence bars a plaintiff's recovery.” Following the citations back through time, it appears that
contributory-negligence doctrine was simply accepted as a “general rule” of jurisprudence by the Court:
“The only question here presented, as we see it, is whether contributory negligence is a valid defense to
[a plaintiff’s] claim. As a general rule, contributory negligence is a good defense to an action based on
negligence….” Karma Construction Co., Inc. v. King, 296 A. 2d 604, 605 (D.C. App. 1972) (emphasis
added).

APPLICATION TO CYCLISTS IN THE DISTRICT:

Where negligence of a victim is more likely to be wrongly presumed, the contributory negligence
doctrine is especially troubling as it eliminates recovery for that victim. In the District, such improper
presumption of negligence is common when a collision involves a cyclists. The District seemingly admits
as much by producing the joint MPD-DDOT document entitled “Common Enforcement Errors Involving
Bicyclists” (available at:
http://ddot.washingtondc.gov/ddot/frames.asp?doc=/ddot/lib/ddot/information/bicycle/laws/bicyclee
nforcementscenarios.pdf).

Where an officer improperly cites or tickets a cyclist—as is the case in the numerous examples
referenced—a finder-of-fact, especially if a jury of citizens more likely (like the officer) to be familiar
with vehicular rules and unaware of their specific applicability to cyclists, will be more likely to find
negligence on the part of the cyclist. Such improper finding, rooted in improper enforcement by an
officer and lack of specific knowledge by the fact-finder, would eliminate recovery for the cyclist-victim.

While WABA works diligently to educate cyclists, police officers, and citizens on the proper application
of bicycle laws, misunderstandings still permeate and commonly lead to improper enforcement and
conflict. The existence of the contributory-negligence doctrine in the District serves to compound the
effects of these misunderstandings by essentially saying to cyclists: “The District knows that it often
errors in enforcement, but where that error in enforcement can be used to support a finding of
negligence, the District will not allow recovery of damages.”

A legal system rife with inconsistent enforcement and application of bicycle rules, combined with an
outdated doctrine that allows blaming the victim for her injuries has resulted in some cyclists coming to
lack faith in the system of legal protection and enforcement. The inevitable results of this lack of faith
are (1) a chilling effect on cycling and benefits to the livability of the District, and (2) the much-derided
“scofflaw cyclist” who chooses to ride individualistically, disregarding the law because she feels it does
not protect her. Both results are unacceptable.

CONCLUSION:

While it is the responsibility of citizens to follow the law, it is also the responsibility of lawmakers to
ensure that laws accurately fit the reality and context of the jurisdiction. In the District, cyclists operate
daily within a context of poor enforcement of protective provisions and misapplication of traffic
regulations in a manner that improperly faults cyclists for legal behavior.

This improper application of the law is compounded by the contributory negligence doctrine,
threatening to prevent cyclists in accidents from any recovery. The vast majority of jurisdictions in the
United States have abolished contributory negligence as an outmoded and too-blunt instrument for the
allocation of recovery for negligence. To the extent the District cares about livability, multi-modal
transit, and the expansion of cycling as a viable lifestyle option for all of its residents, it should do the
same. Please abolish the contributory-negligence doctrine as a bar to recovery for cyclists in the
District, and replace it with a more modern and appropriate comparative negligence system, as most
states have already done.