Photo by Rosario Esquivel on Flickr.

A bill will come to a vote today to reform DC’s “contributory negligence” rule, which often prevents an injured bicyclist or pedestrian from getting compensation. But sponsors said yesterday it’s unlikely to pass, in large part because of concerns from trial lawyers about its impact on high-dollar cases.

“Trial lawyers” bring lawsuits to help people recover money after car crashes, job injuries, employment discrimination, defective products, and more. They are often derided as “ambulance chasers” and the like. But lawsuits when people’s rights are violated or negligence has caused harm are also an important force keeping companies from ignoring safety problems or violating the law.

The trial lawyers are also well-organized and active in lobbying, locally through the Trial Lawyers Association of Metropolitan DC. According to Councilmember Tommy Wells, the TLA has been pushing councilmembers not to move forward with the bill. So has the insurance industry.

The Committee on Public Safety and the Judiciary will “mark up” the bill today. Wells, who chairs the committee, supports the bill. David Grosso (at large) was the primary author, but he is not a member of the committee. Besides Wells, the committee includes councilmembers Jack Evans (ward 2), Mary Cheh (ward 3), Muriel Bowser (ward 4), and Anita Bonds (at large).

Martin di Caro reported that Cheh does not support the bill as written now, and she likely represents the swing vote at today’s committee hearing. This surprised many cycle advocates, as she co-introduced the bill in July with Grosso and Wells and has been a strong supporter of bicycling as chair of the transportation committee. I spoke to her to understand why she feels this way.

Why are trial lawyers against the bill?

You might ask, wait a minute. This bill is supposed to help cyclists and pedestrians recover if they are injured. And trial lawyers are the people who bring those lawsuits. So why are they against this?

It’s because of a legal doctrine known as “joint and several liability.” As Wells explained it, if you’re hit by a driver who has no money, but someone else who was negligent in some way (maybe the brakes manufacturer, if the brakes failed, for example), you can also go after that party. And even if most of the fault isn’t with them, you could recover all of the medical costs from the deeper-pocketed entity.

The trial lawyers really like this provision, because they are really interested in the big cases that can mean a lot of money, both for their clients and for them. Cheh also said she wants to keep it, and noted that in the 45 states which don’t have contributory negligence, often they also don’t have joint and several liability.

Can the bill protect joint and several liability?

The original bill did not explicitly protect joint and several liability. In response to the concerns, Wells says, he and Grosso modified it.

When the victim is not at fault even the slightest amount, then under the revised bill, joint and several liability will still apply as it does now; if the victim is partly at fault, he or she can still recover from others in proportion to their fault.

However, Cheh said, that still can harm a plaintiff. Let’s say a pedestrian was 10% at fault, a deep-pocketed party 20% at fault, and the judgment-proof driver 70%. This bill would still restrict the deep-pocketed party to covering 20% of the injured person’s medical bills, compensation for lost work, and other costs.

The root problem is that trial lawyers are concerned with the less common but very large dollar value cases, which are important. But, Washington Area Bicyclist Association head Shane Farthing says, there are the far more numerous, small cases where a cyclists or pedestrian gets an insurance claim denied under contributory negligence even if the victim’s liability is extremely minor or just a police officer’s misinterpretation of the law.

Cheh retorts that if insurance companies are improperly denying claims, maybe the solution is a different law that deals with that case. But there’s no guarantee there is a good way to deal with that. Meanwhile, this bill which could do some good has had a committee hearing and is ready for a vote.

To be technical, the contributory negligence doctrine has other facets (like “last clear chance”) which can make it not applicable if a case gets to a lawsuit. Most don’t, however, because victims can’t get a trial lawyer to take their case.

It’s ironic that the trial lawyers are opposing a bill that’s necessary to help people whose cases the trial lawyers won’t take. Perhaps what we need is a some sort of bill requiring licensed DC personal injury lawyers to take a certain number of smaller bike or pedestrian injury cases. Their desire to do something about this problem might deepen very quickly in that case.

Can the bill still move forward?

Cheh also says that Wells promised to convene a discussion including her, the trial lawyers’ representative, and bicycle advocates to work it out. Wells said she misunderstood, and he only volunteered to talk to the TLA about the new language to try to preserve joint and several liability.

A discussion among those parties makes sense. Maybe there is a better way to ensure the bill can satisfy trial lawyers. Or maybe not, but if they’re going to be completely intransigent, that close-mindedness could convince uncertain members like Cheh to move forward anyway.

However, it’s disappointing that this conversation couldn’t have happened during the four months since this bill was introduced. It’s almost the end of the session, and there is little time for much more deliberation.

Grosso promised to try again next year if necessary, but Wells won’t be chairing the committee any more. Unless Grosso gets it, there’s no guarantee its next chair will want to bring the bill to a vote — Phil Mendelson never did in all the years he ran that committee.

Councilmembers could vote to move it out of committee, then work to see if there are tweaks to make at the first or second reading before the full council. Wells, Grosso, WABA, and others don’t think any more is necessary, but the trial lawyers certainly have the clout to get in more fixes if there really are any worth making.

Meanwhile, cyclists and pedestrians are getting hurt and running into a legal brick wall (or should it be car fender?) They deserve relief now, not a vague hope of something years down the road.

Update: The vote has been postponed one week to give supporters time to win over more votes. This will give Cheh a chance to have the meeting she wanted.