Effective November 16, 2016, the Council of the District of Columbia repealed the long outdated “contributory negligence” doctrine as it applies to pedestrians and cyclists in the District.[1]  Incredibly, more than a year later, many auto insurance companies, including their claims adjusters and investigators, are not aware of this momentous change, unless and until they are informed of it on a case-by-case basis.

Formerly known as the “1% rule,” the doctrine of contributory negligence was often used by insurance companies to deny claims by injured cyclists and pedestrians wherever there was even a whiff of an argument that the victim did something  wrong - no matter how minor - that arguably contributed to the cause of the accident, even where the negligence of the driver was acknowledged. By denying these claims, auto insurers forced bike and pedestrian accident victims to bear the expense and uncertainty of having to fight their cases in court in order to receive compensation for their own serious injuries.

To date, 47 jurisdictions in the United States have rejected the doctrine of contributory negligence in favor of more reasonable standards. Only four jurisdictions, Virginia, Maryland, North Carolina, and Alabama, still maintain it on their books. Every significant legal commentator, jurist, and scholar has condemned contributory negligence as inflexible, punitive, and outdated. Yet, it persists in these four remaining jurisdictions largely due to the intense lobbying and campaign contributions of the auto insurers, who profit from it by denying millions of dollars in claims from injured accident victims annually.

Many of the states that have overturned contributory negligence have adopted the more reasonable doctrine of “comparative negligence.” Under this approach, if an accident victim is determined to be slightly at fault, then the judge or jury assigns a percentage to the level of fault they believe the victim possessed, and their damages compensation is reduced by that percentage. 

By way of an example, let’s say that a pedestrian or cyclist is struck by a motorist while in a protected crosswalk, using the “Walk” signal. The evidence establishes that they had the legal right of way, and the driver was negligent in not keeping a proper look out. Let’s also assume, however, that the accident took place at night, and the injured party was wearing dark clothing. One might argue that even though the victim had the right of way in that crosswalk, their dark clothing might have contributed to the cause of the accident even though the driver was negligent in striking them. If the jury believes that the victim was therefore – say 25% at fault under these facts - then their damages award is reduced by 25%, but not eliminated. In contrast, under the doctrine of contributory negligence, if they were even 1% at fault, they would get nothing at all.

Some insurance carriers have wrongly assumed that the new law in DC adopts the standard of comparative negligence, but this is not the case. Under the new law in DC, so long as the cyclist or pedestrian victim’s level of negligence is not greater than the driver’s (i.e. not greater than 50%), the victim recovers 100% of their proven damages, to include medical expenses, property damages, lost wages, and compensatory damages (otherwise known as “pain and suffering”). In plain terms, as long as the driver’s negligence is found to be greater than the victim’s, the victim is entitled to an award of all of their proven damages – not a reduced amount.

As of the date of this article (January 2018), I continue to encounter claims adjusters from every major auto insurer that are either unaware of the change in DC law entirely, or are under the misapprehension that the new law in DC is comparative. It is not. Hopefully, as time passes, all stakeholders will come to understand the revised standards correctly.

I also hope that as time passes, the legislatures in the remaining four jurisdictions where “contrib” still exists (VA, MD, NC and AL) will come to their policy senses, reject the tired and disproven arguments of the insurance carriers, and do away with this harsh, outdated doctrine once and for all.

[1] The Act, officially known as D.C. Act 21- 490, or “The Motor Vehicle Collision Recovery Act of 2016,” passed the D.C. Council on October 4, 2016 by a unanimous vote of 13-0.  The Act applies to all “non-motorized users” of the road, and in addition to pedestrians and cyclists, applies to skateboards, non-motorized scooters, Segways, tricycles, and “other similar non-powered transportation devices.”