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Bicycling


DC Council postpones fixing an injustice to pedestrians and cyclists because Kenyan McDuffie's dog ate his homework

I'm on vacation in Copenhagen, but am writing a post anyway )using a Danish keyboard where the punctuation is all in a different place= because I'm sufficiently annoyed at Councilmember Kenyan McDuffie. He seems to have just read a very important bill to protect people walking and bicycling at the very last minute, then asked for an extension because it didn't say what he thought it did.


DC's contributory negligence debate wouldn't happen here in Copenhagen. Photo by the author.

A quick history here. Bicycle riders have been talking about the unjust "contributory negligence" rule for years. This rule says that if someone is even 1% at fault for a crash, he or she can recover nothing from the insurer of, say, a driver who hits and seriously injures him or her.

Two years ago, Tommy Wells (ward 6) was chairing the committee with jurisdiction to change the rule, and he tried a bill to change to "comparative negligence," where you can recover in proportion to your fault (if you're 25% at fault, you could recover up to 75% of your injuries). But Councilmember Mary Cheh (ward 3) opposed the bill, as did trial lawyers, because it would interfere with another legal doctrine called "joint and several liability." You can learn more about this here.

But suffice to say, there were two possible ways to fix the problem, and the one Wells was promoting didn't have political support. Cheh promised to write a bill that fixed her concern, and she then introduced it the following year, in January 2015, along with Jack Evans (ward 2), David Grosso (at large), Anita Bonds (at large), and Charles Allen (ward 6 and Wells' successor).

Here's a chart by David Cranor explaining the difference between the two bills, in terms of how much a victim can recover based on his or her fault under current law, the 2014 bill, and the current bill.


Here, the X axis is for how much the cyclist was at fault, and the Y is for how much the driver has to pay. The red line shows how the law works today, the green one explains a 2014 bill that didn't pass, and the purple and blue ones show Kenyan McDuffie and Mary Cheh's proposals, respectively. Graph by David Cranor.

Kenyan McDuffie was now chairing the committee with jurisdiction, and nothing happened for over a year. The committee then marked up the bill on April 21, 2016. The committee report endorses the bill, saying:

The Committee finds, based on the testimony, significant risk of injury, and national trend, that the District of Columbia law should institute a modified comparative negligence standard for bicyclists and pedestrians in the District. Therefore, the Committee recommends that the Council enacts Bill 21-0004, the "Motor Vehicle Collision Recovery Act of 2016."
Suddenly, the bill is in crisis

Monday night (Copenhagen time, anyway), Martin Di Caro broke the news that McDuffie was suddenly concerned about the language of the bill. David Cranor breaks down McDuffie's apparent concern, which is that someone 10% at fault might be able to recover more than 90%. McDuffie wants the purple line in the graph above, where the recovery slopes down to 50% and is zero after that.

But the sloped-line approach failed two years ago. Suddenly it seems we're back where we were then, with some councilmembers willing to support one solution, some wanting another, and not enough for a single solution.

The Washington Area Bicyclist Association says it supports either approach, but is insistent that one of them be enacted. I might not be seeing everything, being in Denmark let alone not privy to conversations between McDuffie and Cheh, but it sure seems like McDuffie, after sitting on the bill for 15 months, suddenly read it for the first time very recently, realized it said something different than what his own committee report endorsed, and got cold feet.

The council has now postponed debate on the bill for two weeks, until July 12.


Photo by the author.

McDuffie needs to get this solved in two weeks

One of my elementary school teachers had a sign with the old phrase, "Lack of planning on your part does not constitute an emergency on my part." This is like the student who procrastinates on an assignment until the last minute, then needs an extension. Only McDuffie is a very smart professional legislator with extensive legal experience and staff who also have law degrees.

But fine, McDuffie got his extension. It will mean cyclists and pedestrians are in jeopardy for two months more, because the council can't take a second vote until September thanks to its August recess, but they've been waiting years for a fix.

If McDuffie decides to go along with Cheh's approach, great. If he can convince her and a majority of the council to go with another solution palatable to WABA, that's also fine. But what won't be fine is if two weeks pass (during which time there's a holiday, by the way) and then the council is still not ready to move forward. Two years ago, the bill got delayed two weeks also, and instead of then passing, it was delayed more and more and ultimately almost two years.

If that happens because McDuffie wasn't paying attention, this will all be on him, under the "you break it, you buy it" doctrine. It would reflect very poorly on him. Fortunately, he has several ways out of looking bad—just get some dmn bill passed )where the heck is the asterisk on this keyboard=, either Cheh's version or something else that has seven votes.

To stay up to date on how this unfolds, fill out the form below. Meanwhile, I'll go back to walking the streets of Copenhagen, where Danish law places the presumption of fault on the driver in any crash. Hey, how about amending the bill to say THAT instead?



Bicycling


DC's harmful traffic law needs to go, one way or another

If a driver hits you while you're walking or biking in DC, the law makes it almost impossible to collect from the driver's insurance. A bill to fix that is suddenly in jeopardy just hours before a scheduled vote. Please ask the DC Council to move it forward.

As of now, DC's "contributory negligence" law says that if a person on foot or bike who is involved in a crash is even one percent at fault for what happened, they can't collect any damages. The Motor Vehicle Collision Recovery Amendment Act of 2015, which is scheduled for a vote today, would let people collect damages as long as they were less than 50% at fault.

Today, Councilmember Kenyan McDuffie plans to introduce an amendment that would change exactly how much a person could collect, using a "comparative negligence" standard that basically means that a person's claim to damages would be proportional to their fault in the crash. It looks as though Councilmember Mary Cheh would oppose the bill if it includes McDuffie's amendment.

Efforts to end contributory negligence, which really does have harmful effects, have been going on for years. There are credible arguments for both McDuffie's and Cheh's positions on how to word the new law, but we need to pass one or the other.

With or without the amendment, the proposed bill will improve the rights of pedestrians, cyclists and other non-motorized road users on DC's streets. That is very much needed, especially as the number of people who use our streets for something other than driving continues to swell.

Update: Councilmember McDuffie moved for the Council to vote on the bill on July 12, and his motion passed.

This morning, 75 people sent 450 letters to Councilmembers urging them to do away with contributory negligence, one way or another. Thank you for your efforts, and look for more from Greater Greater Washington on how pass the bill as the vote nears.

Bicycling


DC is on the verge of ditching a harmful traffic law

Right now, DC has a law that keeps drivers from being held responsible for damages when they harm vulnerable road users. After years of organizing and effort, the DC Council is about to vote on a proposal to change this. You have a chance to speak up.


Photo by mjmonty on Flickr.

Traffic collisions happen every day. Sorting out who is responsible for the damages afterwards is a complex job that often involves the police, insurance adjusters, lawyers, and even judges and/or juries. In our region, however, a strict legal standard called "contributory negligence" has made things harsh, but simple: If you are even 1% at fault in a collision, you cannot collect any damages.

If that sounds weird to you, you're not alone. The District, Maryland, and Virginia are among the last holdouts in the US to use this standard. Forty-seven other states have switched to a more common-sense standard called "comparative fault," where damages are assigned in proportion to blame.

I shared my own personal story in a a recent post about how I came to learn about this obscure legal topic—the hard way, courtesy of a minivan driver, while I was riding my bike. While I am grateful I survived and recovered, I know I'm not alone, and others aren't as lucky as me with the court system. That's why myself and others have been advocating since 2014 for the District to adopt the "comparative fault" standard for pedestrians and cyclists who are hit by drivers.

Road users who don't have insurance adjusters or legal representation to advocate on their behalf are victimized a second time after a collision when their claims for damages are denied because insurers are confident most victims will not have the evidence to prove they are untainted by even 1% of fault.

Various DC Council members have explored legislation to make this change, but have faced stiff opposition from AAA and the insurance industry, who can afford multiple full-time lobbyists. However, patient and persistent advocacy from leaders on the council and community groups like WABA and All Walks DC have brought us to the brink of victory.

On Monday, the DC Council's Committee of the Whole scheduled the Motor Vehicle Collision Recovery Amendment Act of 2015 for a full Council vote on Tuesday, June 28, 2016.

On top of making it so a person on a bike or on foot who was contributorily negligent in a crash with a motor vehicle would still be able to collect damages if they were less than 50% at fault, the bill makes it clear that it covers people using non-motorized vehicles outside of just bikes (or people on foot), and retains what's called the "last clear chance" doctrine, which says that even if the person who was hit was contributorily negligent, the person who hit them can still be responsible if they had a clear chance to avoid the collision.

If you care about this issue, now is the most important time to let your councilmember know that you support fairness for pedestrian and bicycle crash victims. You can rest assured that they are hearing from the insurance industry, so let them hear from you too.

Politics


Silverman, White, Gray, and White can form a paint caucus on the next DC Council

Tuesday night, three incumbents lost their primaries for re-election to the DC Council: Robert White beat Vincent Orange at large, Vincent Gray unseated Yvette Alexander in Ward 7, and Trayon White took out LaRuby May in Ward 8. Many observers noticed that there's something similar about all of their last names: They're (achromatic) hues.

We supported Robert White and Gray, and from a policy standpoint, this election means a big step up for the quality of the DC Council. White and Gray will likely cast many better votes than Orange or Alexander would, and write better quality, better thought through legislation as well.

But putting all of the serious stuff aside for a moment, after each election recently I've made a graph of the number of elected officials whose names are also on the Photoshop palette.

While Orange, the most colorful sitting member (literally) lost, the three new ones bring the total up to four, the all-time high last achieved in 2011. That's the three victorious challengers plus Elissa Silverman, who came onto the council two years ago.

(Note that these folks haven't technically won election; they all are on the ballot in November. But in overwhelmingly Democratic DC, a Democrat is virtually assured of winning the general election.)

This chart excludes Carol Schwartz, whose name derives from the German word "schwarz," meaning black. She was on the council from 1985-1989 and again from 1997 to 2009, when Michael Brown defeated her for a non-Democratic at-large seat.

Are there any more Quentin Tarantino characters waiting in the wings for 2018? There's often speculation about a comeback for Kwame Brown or Michael Brown (which, let me say, would be a terrible idea). Orange also could seek another seat in the future; it wouldn't be the first time he left the council and then returned.

Politics


For DC Council in Ward 7: Vince Gray

In DC's Ward 7, mostly east of the Anacostia River, former mayor Vince Gray is running to take back his old seat on the DC Council from Yvette Alexander. We hope voters will return him to the council.

While ethical issues from his campaign marred his mayoralty and serious questions still remain, on the policy issues, he was very strong. He was the champion of DC's ambitious sustainability plan and the forward-thinking moveDC plan which called for bus lanes, protected bikeways, and much more. Under Gray, the DC government set ambitious goals for the future, ones we can only hope the District comes close to achieving.

Even before his term as mayor, he was an excellent councilmember and an excellent chairman. Having him back in the legislature will be a major win for DC. When he chaired the council, he charted a constructive course toward DC's zoning update and other long-term planning processes.

Gray was never shy about saying, loudly and publicly, that DC should reduce its reliance on private cars. He's also been adamant that DC needs more housing. In response to a question on the issue, he said,

The District's zoning laws are arbitrary and impose a significant burden on further growth, especially for affordable housing. As mayor, I fought to change our height limitations in order to allow for the development of more high rise buildings to support more residents. As councilmember, I will support zoning changes to make building more affordable units easier and more straightforward.
Yvette Alexander, on the other hand, has been a poor councilmember. She has shown little to no leadership in her ward to improve bus service, despite the fact that large numbers of her constituents ride the bus and transit to many neighborhoods is not what it could be. (Compare that to Ward 5's Kenyan McDuffie, who recently fought for and won funding for a new express bus line on Rhode Island Avenue.)

Alexander criticized bicycling at a rally about the bikeway on Pennsylvania Avenue and told Dave Salovesh that she wanted to keep being able to make U-turns across the lane (a very dangerous maneuver).

She responded angrily on Twitter when we reported her opposition, insisting she supported barriers on Pennsylvania Avenue, but refused to specifically state she supported them in front of the John A. Wilson Building, where the councilmembers park.

Having Gray back on the council would likely mean a big boost for good public policy. We hope Ward 7 voters will choose him in the Democratic primary. Early voting begins May 31, and election day is June 14. You can find out more about times and places to vote here.

This is the official endorsement of Greater Greater Washington. To determine endorsements, we invite regular contributors and editors to participate in a survey about their preferences and opinions about upcoming races. The editorial board then decides whether to make an endorsement.

Politics


For DC Council at large: Robert White

There's no doubt about it: Vincent Orange should not continue as a DC councilmember. There are two people vying to unseat him who would both make excellent councilmembers. In the Democratic primary on June 14, we urge voters to pick the one who has the best chance to win, and that is Robert White.

Robert White is a good candidate

For a race as important as this, there has sadly been little press coverage and other attention. If you haven't been hyper-engaged in the race, you may know little or nothing about Robert White, which is a shame, because he is a strong supporter of the issues that matter to the Greater Greater Washington community. We endorsed him (along with Elissa Silverman) in the general election two years ago.

White has said he supports rezoning areas such as Georgia Avenue NW, Rhode Island Avenue NE, and Martin Luther King, Jr. Avenue SE to add housing. He wants to ensure that costs don't spiral out of control for middle-class families. "We have to look at all ways to increase housing options in order to push down the cost of housing," he told Edward Russell.

He's spoken in favor of adding more bus lanes, for expanding the bike lane network, and strengthening Metro, including with more funding as needed.

He has considerable public policy experience through working for many years in the office of Congresswoman Norton and then for DC Attorney General Karl Racine. He will understand how to get things done and involve residents effectively in the political process.

White has won the support of the DC Sierra Club, DC for Democracy, the JUFJ Campaign Fund, and councilmember Mary Cheh.

No to Orange

Vincent Orange, the incumbent, simply is not a constructive force on the DC Council. He introduces legislation that is simultaneously overly specific and poorly thought through.

He introduced sloppy (and likely illegal) legislation to stop creation of new housing. Then he jumped on the "tiny houses" bandwagon with a "gimmicky" piece of legislation. He even submitted two conflicting bills about Airbnb.

Maybe it's because we're wonks, but we'd like our elected officials and their staffs to actually be thinking about a policy issue and trying to solve it. Orange doesn't seem to.


Robert White (left) and David Garber (right) images from the candidates. Base balance scale image from Shutterstock.

What about David Garber?

The third candidate in the race is David Garber. We like him a great deal. In fact, he has been an active part of the Greater Greater Washington community in the past. A number of our contributors are his personal friends. He has a strong grasp of policy issues and good values about them.

While an Advisory Neighborhood Commissioner for the Navy Yard area, he consistently supported adding more housing while also fighting for more affordable housing. He posted a really smart series of tweets about this issue recently, which sound just like what we might say.

On transportation, Garber has cheered efforts toward dedicated bus lanes. He told Edward Russell, "I think it's really important that we invest in things like better dedicated bus service and 16th Street NW is a great example of that."

He would make an excellent councilmember, and if he were in a head to head race with Vincent Orange, we would eagerly endorse him.

However, the fact of this race is that there are two candidates who are very strong on our issues. There is little actual policy difference between David Garber and Robert White; meanwhile, Robert White has an advantage on experience and, most importantly, likelihood of winning.

When should you vote strategically?

In the past, there's been considerable debate among our readers, contributors, and editors about whether to vote for the person you like the most, or the one who's most likely to beat a bad alternative.

During Vincent Orange's last race in 2012, Sekou Biddle almost beat him, with 39% of the vote to Orange's 42%. But Peter Shapiro, whom we endorsed, ended up with 11%. If enough of Shapiro's supporters had gone to Biddle over Orange, Biddle could have prevailed.

Other times, "vote your heart" has had value. Sometimes a candidate doesn't win, but getting more votes positions him or her for a later run. In a 2013 special election, we supported Elissa Silverman. She didn't win (Anita Bonds did), but her strong performance positioned her well for the following year's at-large independent contest, where she won a seat.

This contest, however, is somewhat different from 2012. Robert White is genuinely a good candidate, not a distant second best. Some allied groups that supported Shapiro in 2012 are now enthusiastically behind White. There are both fewer (if any) reasons not to support White, and a stronger accumulating consensus in his favor.

In giving their views on the race, several contributors said they liked Garber, but simply didn't know White that well; many said that if White seemed to have the edge, they'd rally to his side. We wish there were a good, independent poll to help people decide (it's very unclear whether to put any stock in this one).

We actually had a whole post written about how we weren't quite yet ready to make up our minds. After more endorsements for White rolled in and evidence mounted that he had the strongest chance to beat Orange, our editors and many contributors agreed that voters would do best to support Robert White.

Early voting begins May 31, and election day is June 14. There is no contested race for any party other than the Democrats. You can find out more about times and places to vote here.

This is the official endorsement of Greater Greater Washington. To determine endorsements, we invite regular contributors and editors to participate in a survey about their preferences and opinions about upcoming races. The editorial board then decides whether to make an endorsement.

Poverty


DC's homeless shelter plan just got a makeover

In February, Mayor Bowser put forth a plan to replace DC General with seven smaller family shelters around the District. The DC Council just made some key changes: all of the sites will now be city-owned rather than leased, and a few will be in different locations than first planned.


Photo by Jeffrey on Flickr.

After Mayor Bowser released her plan, many raised concerns about its expensive leasing agreements with private developers and the suitability of some of the proposed sites. Yesterday, the DC Council unanimously approved a revised plan that targets those concerns. The changes are expected to save DC $165 million. Here they are:

The shelter locations in Wards 3, 5, and 6 will change

Three sites, in Wards 3, 5, and 6, will relocate to city-owned land.

Many criticized the original sites: the Ward 5 location, for example, was too close to a bus depot with bad air quality as well as a strip club, and the Ward 6 location was too close to a party venue.

All three locations would have required zoning variances or exceptions to become shelter sites, but that isn't the case with the new sites.

Ward 3 Councilmember Mary Cheh and Ward 6 Councilmember Charles Allen both expressed support for the new sites. Ward 5 Councilmember Kenyan McDuffie, who previously opposed the shelter plan, now supports a shelter at either of the two proposed sites for Ward 5. Councilmember Yvette Alexander, however, said she is worried that the changes to the locations will delay the closing of DC General.

The District plans to purchase land for sites in Wards 1 and 4

DC will work with property owners to purchase two of the proposed sites, in Wards 1 and 4. If that doesn't work, DC will acquire the properties through eminent domain.

To fund the purchases, the new plan is to use capital funding originally set aside for the renovation of Ward 4's Coolidge Senior High School. Ward 4 Councilmember Brandon Todd said using the school renovation funds places an unfair burden on Ward 4 residents. But Councilmember David Grosso, who is also the Education Committee chair, assured him that the school renovations would still happen on schedule; since the renovations are still in the planning stage, the school wouldn't have been able to use the funding this year anyway.

Ward 1 Councilmember Brianne Nadeau added an amendment to the new plan that ensures the property owners of the Ward 1 site pay any back taxes they may owe to DC before the District purchases the property.

Mayor Bowser and Phil Mendelson aren't on the same page

Ward 8 Councilmember LaRuby May is worried that the new plan could overburden Ward 8 with more shelter units than other wards. She proposed an amendment that clarified the maximum number of units allowed at each site, but it failed after Council Chairman Phil Mendelson said he felt the issue could be worked out among the council before the next vote without an amendment.

While many councilmembers praised Mayor Bowser for her initiative and courage on the original shelter plan, Council Chairman Mendelson accused the mayor's office of "obfuscation and misinformation" and a lack of collaboration with the council during this process. Later in the day, Mayor Bowser made it clear that her office and the council are still very far apart on the plan.

What happens next?

"We should all be getting ready to go to happy hour, because we got it done!," said Councilmember Vincent Orange. Not so fast, though. There are still a few more steps before this bill becomes a law.

The DC Council will hold another reading of the bill on May 31. If the council approves the bill then, it goes to the mayor for approval. If she vetoes it, nine councilmembers must support the bill for it to become law. It's possible that a few of the councilmembers with misgivings, many of whom are facing tough reelections, could be swayed by lobbying by Mayor Bowser or her allies to vote against the bill.

Bicycling


A law that blames you, instead of the driver who hit you, could soon meet its end

In 2008, a driver in a minivan hit me (Tracy) when I was riding my bike on Connecticut Avenue, fracturing my pelvis in three places. The driver's insurance company denied my claim because of a law that says if you're even 1% at fault, you can't collect anything. The good news? DC is moving to change this.


Stickers from an effort to do away with contributory negligence. Image from WABA.

Currently, DC, Maryland, and Virginia use what's called a pure contributory negligence standard to decide who pays what damages after a vehicle collision involving someone on bike or foot. We wrote about contributory negligence in 2014, but the basic thing you need to know is that under this standard, if the person is even 1% at fault for a collision, they can't collect anything from the other party (or parties).

Insurance companies benefit from contributory negligence because it makes it very low risk to deny a claim, since the legal standard a court would apply is so broad.

Most people, however, agree that this standard is unfair—in fact, Alabama and North Carolina are the only states aside from those in our region not to have moved to an alternative legal standard that compares the fault of the parties and allocates responsibility to pay damages according to who was more to blame, known as comparative fault.

This might all change soon

On April 21, Councilmember and Judiciary Committee chair Kenyan McDuffie brought the Motor Vehicle Collision Recovery Act of 2016 to a vote. It passed out of Committee 3-0 and is now awaiting two votes before the full council.

This bill would make it so a person on a bike or on foot who was contributorily negligent in a crash with a motor vehicle would still be able to collect damages if they were less than 50% at fault.

The version of the bill that came to markup had two minor but substantive changes from one that was introduced last January. First, it now includes a definition of "non-motorized user" to mean "an individual using a skateboard, non-motorized scooter, Segway, tricycle, and other similar non-powered transportation devices." These vulnerable road users are now explicitly covered by the bill, in addition to bicyclists and pedestrians.

Secondly, the bill expressly retains the "last clear chance" doctrine, something that is already available under the law in the District. The basic idea behind last clear chance is that even if the plaintiff (the person who gets hit) is contributorily negligent, the plaintiff's negligence is not a bar to recovery if the defendant (motorist) had the last clear chance to avoid the accident.

Reserving last clear chance will likely result in greater protection for bicyclists because in circumstances where the bicyclist is contributorily negligent, the bicyclist would still be able to recover for damages if the motorist had the last clear chance to avoid the collision.

The bill must be approved by the Committee of the Whole and receive two affirmative votes by the full council. It would then go to the mayor for her signature. Afterwards, the bill becomes an act and must go through the Congressional approval process before becoming law. Both votes could take place before the summer recess.

Who does contributory negligence hurt?

The contributory negligence standard is particularly hard on bicyclists, in part because the public is not well-educated about bike laws in general. But the reality is that contributory negligence is actually hard on anyone with relatively small damages to claim and/or no applicable insurance coverage (e.g. pedestrians).

Most personal injury attorneys work on a contingent fee basis, and small cases do not adequately compensate them for their time. Thus, though the cost of replacing a bike or a few thousand dollars in medical bills may be substantial for an individual, it's not enough to attract an advocate to take on a driver's insurance company.

Contributory negligence is hardest on low-income people

To some, the pain and damages that fall under this threshold are the difference between getting by and falling behind. There can be no doubt that this has real consequences for seniors, communities of color and low-income individuals who can't just call in sick and watch Netflix until a back sprain heals or buy a new bike.

We know that 38% of DC households don't have access to car. We know that 28% of trips made by DC households are by foot, and another 20% by transit (which includes some walking to access). The web of incentives and laws that we're all traveling in every time we take a step or pedal across the street to the bus stop, or get behind the wheel of a car, directly affects our quality of life and shapes our behavior and choices.

Councilmember Mary Cheh (Ward 3) introduced the bill. The bill's sponsors are Councilmembers Grosso (at-large), Evans (Ward 2), Bonds (at-large), and Allen (Ward 6); Councilmember Alexander (Ward 7) is a co-sponsor.

With this legislation, the DC Council has an opportunity to choose fairness and common sense. Let your councilmember know that this matters to you: thank them for supporting the Motor Vehicle Collision Recovery Act of 2016 or let them know you want to see their support.

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