In Virginia, the fact of the officer writing the bicyclist a ticket wouldn't be admissible in a civil suit for damages between the driver and bicyclist. Is that different in DC?

If you think the District should be a comparative negligence jurisdiction, that's fine, and if cops are writing erroneous tickets, they should be better trained; But people are losing their medical-bill lawsuits based on the judge applying the current law, not the cops' mistakes.

by Dave on Feb 16, 2011 12:13 pm  

Great point David. Thanks for writing.

Question for everyone: By what process does law enforcement learn and stay abreast of traffic law? Something like dooring seems like a simple lesson to this layperson.

by Geof Gee on Feb 16, 2011 12:15 pm  

Do you mean less than 51% at fault can collect damages?

by Michael Perkins on Feb 16, 2011 12:58 pm  

Civil actions nice but to me it is more important to address the lack of criminal actions. Once you step into a car, you are in control of a deadly weapon so you should be responsible for whatever happens while it is under your control.

by movement on Feb 16, 2011 1:07 pm  

Very nice topic.

Drives home a couple of points but the glaring error that has me nearly apoplectic, though, is that DC ought be a state and this author seems to have assumed DC is a state. I want my rights as a citizen and a cyclist!

by Truman on Feb 16, 2011 1:09 pm  

Virginia and Maryland are two of four states that apply contributory negligence. DC, of course, is not a state. :-)

by Rich on Feb 16, 2011 1:23 pm  

If you get the phrase "otherwise not protected by tons of steel" written into a law, you can retire. LOL.

by Jasper on Feb 16, 2011 1:40 pm  

@Jasper:

If you get the phrase "otherwise not protected by tons of steel" written into a law, you can retire. LOL.

How about the phrase "vehicles greater than .025 tons GVW"

:)

by oboe on Feb 16, 2011 1:54 pm  

@oboe, I think CaBi bikes are greater than 0.025 tons GVW. At least they feel that way on a windy day. Ugh.

by Ward 1 Guy on Feb 16, 2011 2:14 pm  

@ oboe: How about the phrase "vehicles greater than .025 tons GVW"

Legally more effective, but no fun so it does not count ;-)

by Jasper on Feb 16, 2011 2:52 pm  

I don't know all the legal terms. I agree with movement that more important than the civil law/lawsuits is the non-civil law (whats that called?) that would mete out justice w/o forcing a victim to make a civil law suit, which is time consuming and emotionally draining. No one should be forced into taking up a civil law suit to get justice. The laws should be such that justice comes from the system outside civil court. E.g., if someone hits you from behind there should be absolutely no reason to have to go to civil court to get ER visit, PT, and missed work paid for.

by Tina on Feb 16, 2011 2:56 pm  

@ Tine--

I usually don't comment on posts that don't deal with WMATA or economic policy, I'm making a very limited exception here. I disagree with you about access to courts.

The reason we require civil courts to adjudicate accidents is due process. Yes, the victim deserves compensation but the driver deserves his rights, too. I don't see how abbreviating due process will, in the end, make things better than they are now.

Perhaps I'm not being charitable enough in interpreting your comment in this manner. I think we need to think about ways to accelerate the litigation process in some circumstances and reduce costs to access the justice system. Maybe that would address you concern?

by WRD on Feb 16, 2011 3:03 pm  

@WRD,
last year while driving a (borrowed) car I was rear-ended. The car I was driving was totaled, I took a trip in an ambulance to a hospital ED, missed some work and needed some PT. This was in MD, one of the states with the contribitary negligence law. However I did not need to waste my time and emotional energy going to civil court to get any of that paid for b/c the fault was correctly attributed to the driver who struck me. Thats how it should work.

I believe one major reason I recieved justice is b/c I was not subject to negative "road user-type" bias by the police or any other decision maker in the system. Currently I know there is a much greater chance of not being treated as fairly, of recieving justice, if the same thing were to happen while I was on my bike. Currently there is a serious systemic bias against non-car road users for getting the justice I recieved as car road-user.

by Tina on Feb 16, 2011 3:21 pm  

Truman, there are a lot of places in federal documentation where DC is referred to as a state. For example DC is required to have a "State Recreational Trails Coordinator" for that program. DC used this in their lawsuit a few years ago to prove that they should be afforded many rights that states are. Sadly, the judges did not see it that way. Nonetheless, it is still common to refer to DC as a state even though it is not. Technically, neither is Virginia.

by David C on Feb 16, 2011 3:23 pm  

@Dave. In Virginia, the fact of the officer writing the bicyclist a ticket wouldn't be admissible in a civil suit for damages between the driver and bicyclist....people are losing their medical-bill lawsuits based on the judge applying the current law, not the cops' mistakes.

I'm not sure that the problem is with judges. Insurance companies cooperation or lack thereof can make a big difference. A ticket in a contributory negligence state makes the claims rep assume that this is not a claim they should pay--even with the insurance companies who try to be reasonably fair. And as far as I can tell, the insurance companies have either never heard of the last chance rule or they realize that the victims haven't.

There was a fatality in Baltimore with facts nearly identical to the DC case of Washington v A&H Garcia Trash Hauling. Although the DC holding in that case did not apply--and was not even suggested as persuasive--Baltimore police did blame the cyclist for reasons that would make you think the policeman had read that case (A cyclist who rides in the parking lane when there are parked cars is negligent).

The plaintiffs went to great effort to show that the policeman was wrong (fortunately there was a videotape of the accident). I was only hearing about this through emails by nonlawyers but I gather that either the police are brought in as experts or the business records exception gets the police report in.

@Dave Alpert. Sorry for being a broken record, and thanks for mentioning the "convoluted exceptions," but I still would prefer that you say something like "unless the driver had the last clear chance to avoid the accident." Of course you need not go into the last clear chance rule to support your case against the doctrine of contributory negligence. But it would be unfortunate if a victim reading your commentary became discouraged. Insurance companies spin accident victims by saying basically what you said--even when it is completely obvious that the victim would win under the last chance rule. That approach can lead people with property damage but not little or no medical bills to not pursue the matter.

by JimT on Feb 16, 2011 4:47 pm  

Another twist on this is that Maryland has a law that permits insurance companies to exclude out-of-state pedestrians from the driver's "no fault" coverage. I'm not by any means an expert in this, but a friend was struck (as a ped) several years ago in DC by a MD driver and learned about MD law then. She had minor injuries and, had the driver's no-fault insurance kicked in, she would have been able to recover her "economic damages" (medical expenses and wage loss) from the insurer regardless of who had been faulted. ("Non-economic" damages -- pain and suffering -- generally are not covered under no-fault.) Because he was a MD driver and she was a DC resident, though, the insurer refused no-fault coverage and she had to negotiate with them for coverage under his liability insurance (same insurance company, different part of the policy). She fortunately had a police report that clearly faulted him, is a lawyer herself, and had a small claim, and they ultimately paid without her having to resort to a lawyer or the courts. But other, more seriously-injured and less capable DC peds hit by MD drivers would probably be looking at a civil lawsuit and the contributory negligence standard(unless they were blind or deaf, with a cane or dog, in which case the driver is strictly liable under DC law); with a police report that was ambiguous or faulted them, it would be an uphill battle, at least based on the testimony at the hearing (all of which can, btw, be watched on the DC council website).

I favor more criminal prosecution, too, but criminal convictions don't automatically mean the driver has to pay medical bills and juries may be more willing to make a driver pay $$ than to put them in jail.

by Eileen on Feb 16, 2011 4:55 pm  

So it seems like if you survive the crash, you will not remember it. That appears to be what these have in common.

The low hanging fruit here, to my eyes, is changing the report form from car on car to car on bike or ped. Not having that form reinforces the bias in favor of cars, it would seem.

by Jazzy on Feb 16, 2011 5:48 pm  

"Question for everyone: By what process does law enforcement learn and stay abreast of traffic law? Something like dooring seems like a simple lesson to this layperson."

On the rare occasion that they make relevant changes to DCMR title 18, they'll send out a training teletype or circular. The problem is that few guys outside of hard-core traffic officers actually sit down and read the code behind the citations that they write. It doesn't help that training in the academy was more focused on parking than the substance of DCMR and moving violations.

by Boomhauer on Feb 17, 2011 12:20 am  

"On the rare occasion that they make relevant changes to DCMR title 18, they'll send out a training teletype or circular."

It seems to me that the bicycle-related parts of title 18 get changed by the Council almost every session.

by contrarian on Feb 17, 2011 9:23 am  

"It seems to me that the bicycle-related parts of title 18 get changed by the Council almost every session."

They might do minor changes, but the main provisions that are relevant are that cyclists have the same rights and the same responsibilities as motor vehicles unless otherwise provided. The bicycle registration regs aren't enforced anymore by MPD, and I've never seen anyone write tickets for equipment or bicycle parking-related infractions.

by Boomhauer on Feb 17, 2011 10:15 am  

The MPD stay up-to-date on the law? Surely you folks jest. Take a look at a DC license plate on any car. See those decals that say "See Windshield Sticker" that are located in the same place as the "month" and "year" stickers on Virginia license plates? Those are there because when DC switched to putting the registration expiry on a windshield sticker several years ago, MPD officers started ticketing DC residents who had expired decals on their license plates, even though no new license-plate decals were being issued. Evidently it was deemed more effective to issue a bunch of new "See Windshield Sticker" decals than it was to communicate to the cops that they should look at the windshield.

(There was probably a benefit for when DC residents drive out of the District, too, as cops elsewhere were likely unfamiliar with the new system, but I recall the MPD issue being the one that got the media coverage.)

by Rich on Feb 17, 2011 10:25 am