Wednesday, April 6, 2011

Whose fault is it anyway? Contributory vs. comparative negligence

A few weeks ago, a certain BAC member stumbled while trying to explain the somewhat complicated legal terms called contributory and comparative negligence during a BAC oversight hearing (which you can see here)This topic has been discussed by several outlets over the past few years because according to WABA, it is essentially a "blame the victim liability standard".  Understanding these terms may make the difference between you getting something for injuries sustained in an accident, especially if you are biking or walking around the District, Maryland or Virginia (1). 

If an accident occurs, the assigning of fault or responsibility determines if the plaintiff (the person making a claim - usually the injured) or the defendant (the person or entity defending themselves against a claim) can receive compensation to repair themselves or their property.   Negligence is a legal term that assigns fault to someone a court determines as reckless or engages in actions that lead to property damage or injury that could have been avoided.  Contributory and comparative negligence are legal doctrines and defense strategies that, among other things, help determine fault and is compensation is should be granted.

The difference between the two doctrines can be seen using a typical accident example.  Under the comparative negligence standard,  if bike rider Sue (plaintiff) did not come to a full stop at a stop sign and collided with a car driven by Bill (defendant) who did not stop prior to making a turn, the court would assign a percentage of responsibility to both Sue and Bill and compare who was more at fault.  If Sue can prove that she was only 20 percent at fault, depending on the comparative negligence method used, she could be entitled to a comparatively allocated amount to fix her broken arm and busted bike. Under the contributory negligence standard, if Bill shows that if Sue is only 1 percent responsible because she didn't come to a complete stop, Sue wouldn't be entitled to collect any money, even if she is now bikeless and broken.

Contributory  Negligence
According to Wikipedia, the contributory negligence is a common law standard does not allow for compensation if it is determined that the plaintiff's negligence or actions contributed in any way to causing the accident, regardless of the amount of the plaintiff's or defendant's responsibility.   The District is one of only 5 states that continue to use this standard with Alabama, North Carolina, Maryland and Virginia rounding out the other four. 

The law research site says that contributory negligence is used to characterize conduct that creates an unreasonable risk that a reasonable prudent person would not commit. If a person commits an act that is unreasonably risky and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident.  While there are other accident-related legal doctrines like Last Clear Chance that could negate the effects of  contributory negligence, the District Council is currently considering changing the contributory negligence standard currently employed.

Comparative  Negligence
Since this practice makes the outcomes of contributory negligence potentially harsh for plaintiffs, who typically sustain greater injuries, most states have adopted a comparative negligence standard. Under the comparative negligence standard, a judge or jury determines the degree that a plaintiff's own negligence versus the combined negligence of all other actors or defendants, contributed to cause the plaintiff's damages. also states the comparative negligence has two types: pure and modified.  Under the pure method, a plaintiff's damages would be totaled and then reduced to reflect her contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the Sue the plaintiff was 15 percent responsible for her injury, she would be awarded $8,500. The modified comparative negligence approach requires that Sue at least less-than- half as responsible for the accident. So (depending in the state) if Sue is 50 percent or more responsible for the accident, she would not be entitled to damages.

BAC has been working to better understand contributory and comparative negligence doctrines and talking with the government to in hopes of changing from contributory to comparative because it provides more protection to cyclists and pedestrians. The Council member who has arguably has the most influence on this issue is Phil Mendelson, who chairs the Council Committee on the Judiciary and has remained cautious in his examination of the application of this legal standard in the District.

(1) Disclaimer: BAC is not a law firm and we are not making any definitive assertions regarding the law, we are just looking at the concept and leaving it to the professionals to hammer out the legalese and informing District citizens of this issue.  So, if you are injured due to an accident, please go to a hospital and then talk to your friendly neighborhood lawyer.