The D.C. Council is weighing a major change to liability rules for accidents involving bicycles and cars. Right now, cyclists cannot claim any compensation unless the driver is 100 percent at fault. D.C. is among only a handful of states that don’t allow compensation based on comparative fault, with partial compensation depending on the circumstances. We explore the law, potential changes and what it could mean for District residents.

Guests

  • Aaron Davis Reporter, The Washington Post
  • Bruce Deming Attorney; Author, "Surviving the Crash: Your Legal Rights in a Bicycle Accident"
  • Eric Goldberg American Insurance Association, MidAtlantic Region vice president

Transcript

  • 12:06:39

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. First, a rearrangement of schedule, Police Chief Cathy Lanier will be appearing in our 1:00 hour this afternoon. We have to make these rearrangements because these are very busy people who have difficult schedules. But she will be joining us at 1:00 this afternoon. So hold your questions and comments for Cathy Lanier until then. Right now, the D.C. Council is weighing a major change to liability rules and accidents involving bicycles and cars.

  • 12:07:22

    MR. KOJO NNAMDID.C. is among only a handful of states following a system known as contributory negligence. So a cyclist who bears any fault in an accident will find it difficult to claim compensation. The same rules, by the way, apply to a pedestrian struck by a car. Cycling advocates say that fault and compensation should be determined using a fairer system. And they point to the lopsided nature of encounters between cars and bikes. Joining us to discuss this is Aaron Davis. He is a reporter with The Washington Post covering the District. Aaron Davis, thank you for joining us.

  • 12:07:57

    MR. AARON DAVISThanks for having me.

  • 12:07:58

    NNAMDIAlso in studio with us is Bruce Deming. He is an attorney and the author of "Surviving the Crash: Your Legal Limits (sic) in a Bicycle Accident." Bruce Deming, thank you for joining us.

  • 12:08:09

    MR. BRUCE DEMINGGood afternoon, Kojo. Thank you for having me.

  • 12:08:10

    NNAMDIIf you have questions or comments, we know this tends to be a passionate topic. Whether you happen to be a bicyclist, a pedestrian or a driver, you can call us at 800-433-8850. How do you think fault should be determined in accidents involving cyclists and cars? Do you think cyclists put themselves in danger when they don't follow the rules of the road, 800-433-8850? Or you can send email to kojo@wamu.org. You can shoot us a tweet @kojoshow or go to our website, kojoshow.org, ask a question or make a comment there. Aaron, there are a lot more bikes on the roads of Washington, D.C. these days, what has that meant for the number of bike accidents?

  • 12:08:53

    DAVISI think you've hit on exactly why this is becoming an issue that's risen to the level of the D.C. Council's attention. You know, there are 15 miles of new bike lanes throughout the city. You're seeing more car lanes, parking lanes moved. You're seeing these dedicated bike lanes. But there's a lot of -- there's just -- there's thousands of bike-share bikes on the road now. In the last -- we looked at the statistics in the last four years, the number has over doubled from, you know, less than 300, in 2009, 2010, to almost 600 last year, according -- early estimates, according to the city. And that's just reported accidents. Those are the ones where it was bad enough that the cops were called.

  • 12:09:36

    NNAMDIDramatic rise in bicyclists, dramatic rise in accidents, tell us about this bill. Who's being it? What would it do?

  • 12:09:42

    DAVISThis bill is authored by David Grosso. He's an at-large, Independent. And it would change for -- it would carve out for bicyclists a rule that would move them more like 46 other states, in that, if there is an accident, that there's more of a discussion of who was at fault. It's not clearly one or the other, you're right it's an old law, contributory negligence. It dates from English common law. And under that scenario, if you are one percent at fault, if you -- if a police officer believed you swerved a little bit on the road, maybe it was dusk and you didn't have -- your light wasn't on yet, you know -- whatever the contributing factors are, if you were at all at fault, then you have no right to claim on the insurance.

  • 12:10:29

    DAVISAnd, of course, when you're dealing with bikes and you're dealing with motorists -- motorists have to carry car insurance, bicyclists do not. And so you end up with bicyclists often trying to make claims on motorists' insurance. And, you know, and in that case, you end up with the situation where very often, if there's any sign that the bicyclist did anything wrong, that they're not allowed to claim a dollar.

  • 12:10:51

    DAVISAnd they have, you know, medical bills. They have days without work, you know? And if you have car insurance and you bust up your car, you get sometimes, you know, you can get a rental car for those days. If you're a bicyclist, you might have to take a taxi, if you get a broken leg and so there's all these expenses that keep compounding.

  • 12:11:10

    NNAMDIAnd this happens, of course, because usually in accidents between bicyclists and drivers, the drivers don't usually get injured, the bicyclists often do.

  • 12:11:19

    DAVISRight.

  • 12:11:19

    NNAMDIThat's why this comes up. Okay, Bruce Deming, right now accidents are evaluated under that system known as contributory negligence. What does that mean in plain English? We just heard from Aaron that it means that if the bicyclist is one percent guilty, that bicyclist cannot claim any from the driver's insurance at all.

  • 12:11:40

    DEMINGWell, you know, Kojo, it sounds incredible, but it's true. And it's an antiquated doctrine that originated in Old England back in 1809. It's no longer the law in England, by the way, nor is it the law in New Zealand or in 46 states, where it was the law for a period of time through the 19th and 20th centuries. But basically what it says is, that if the injured party in an accident -- in this case, the cyclists -- did anything wrong, no matter how infinitesimally small or how insignificant -- if they did anything that was even arguably contributing to the occurrence of the accident, no matter how small in comparison to the fault of the driver, they are barred from recovering a single cent for their injuries, which may be incredibly substantial.

  • 12:12:30

    DEMINGAs we all know, the disparity between a 4,000 pound automobile and a human being is enormous. Cyclists that are severely injured in accidents often look at debilitating injuries that can follow them for their entire lives. And so this one percent rule is incredibly significant. There are only five remaining jurisdictions in the entire country that have it. In my experience representing hundreds of cyclists over almost 30 years here in the District and the surrounding area, it's the number one legal doctrine that insurance companies use effectively to deny claims. And it needs to be changed. D.C. is really moving in the right direction to modernize this rule in favor of the doctrine of comparative negligence, which is about...

  • 12:13:17

    NNAMDIWell, let's talk about the one-percent rule for a second and contributory negligence. Because it seems that the one-percent rule is intended to indicate that, as Aaron pointed out and you did, if the bicyclists contributed in any way whatsoever, but it does say one percent. How is that assessed? Supposed you contribute one half of one percent?

  • 12:13:35

    DEMINGEven if it's one have of one percent, Kojo, you can't recover. You know, these are subjective terms, obviously. But it really goes to the question of whether a judge or a jury feels that there is any fault at all on the part of the cyclist. And if there's any fault at all, no matter how small, they're barred from recovering anything.

  • 12:13:53

    NNAMDIOkay. What is comparative negligence?

  • 12:13:54

    DEMINGComparative negligence is the common-sense alternative. And what comparative negligence means is that the trier of fact in a court case or, the insurance adjusters say, simply looks at the relative fault of the two parties. If it's determined that the cyclist...

  • 12:14:11

    NNAMDIIt takes us out of the one-percent zone, so to speak.

  • 12:14:13

    DEMINGIt does, yeah. It takes us out of the one-percent zone. So if the cyclist did something wrong -- let's forget about percentages here -- the trier of fact is going to compare the level of wrongdoing on the part of the cyclist to the level of wrongdoing on the part of the driver. And if they determine that there is some fault on the part of the cyclist -- presumably a minimal level of fault -- then they will simply reduce the amount of compensation paid to the injured party -- in this case, the cyclist.

  • 12:14:41

    NNAMDIAnd this is what the D.C. Council, David Grosso's would introduce, comparative negligence, Aaron?

  • 12:14:47

    DAVISYes. But only for bicyclists, in these incidents where motorists and bicyclists collide, which has raised a lot of other questions. Pedestrians say, "Hey, what about us? If we're walking down the street and get hit by a motorist, we're at least as bad off as a bicyclist." And, you know, then you've got -- you can make an equal case if you're a motorist. If you are hit by another motorist, you know, maybe your turning signal wasn't working. But maybe the other guy was, you know, crossed the middle line and hit you. Equally there, there's a question of why wouldn't you have comparative negligence standard as well?

  • 12:15:18

    NNAMDISpeaking of the pedestrian analogy, I think that's what Allison in Rockville, Md., wants to talk about. Allison, you're on the air. Go ahead, please. Hi, Allison, are you there? Allison, I was depending on you to tell me about your pedestrian incident. Turn down your radio and talk to us in real time. Can you hear us? I think we'll have to put Allison back on hold for a while before we can get her. But she did want to talk about it. You've mentioned that 46 states have this system. Can you talk about that and the history behind these laws of comparative negligence?

  • 12:15:52

    DEMINGWell, as I mentioned, Kojo, the doctrine of contributory negligence was the law in many, many states throughout the 19th century and through the early part of the 20th century. But state-by-state, it started to fall away. And this was a result of the observations of judges and judicial panels, as well as legislatures who realized that contributory negligence was simply too harsh. It was a one-size-fits-all rule that doesn't apply in a human world that is not black and white. And so state-by-state they did away with it. And now we only have five remaining jurisdictions in the country including D.C. that have it.

  • 12:16:34

    NNAMDIOkay. Let's try Allison again. Allison, you are on the air. Go ahead, please. Allison, are you there this time?

  • 12:16:41

    ALLISONYes, yes. Thank you, yes. I just wanted to say, absolutely. First of all, this law -- the comparative negligence prevails in all the other states anyway and covers everyone. I was a pedestrian. I was on the sidewalk at the time I was struck. But I couldn't prove that. And because of the injury that I sustained, the blood got into the side of the -- off the sidewalk. The blood just spattered off the sidewalk. And because this -- I was still lying on the sidewalk, but because my blood was in the -- off the sidewalk, that was considered to be the one percent fault, that, you know, that I couldn't prove that I was actually on the sidewalk. And that blood evidence was enough to ruin my case.

  • 12:17:29

    NNAMDII guess the bad news, Aaron, for Allison, is that the D.C. Council proposal would not necessarily help her, since she's a pedestrian.

  • 12:17:38

    DAVISThere was a discussion earlier this week, when this was before the judiciary committee, and that was Tommy Wells, the chairman of that committee, that he would be amenable to adding pedestrians. And David Grosso, I think, also has suggested he would be willing to include pedestrians. I think the issue is going to be is, this may very well pass out of judiciary in short order -- that there would be a bill that goes to the full Council. And then I think there is a real question of how quickly the Council could move forward on this. If you -- there's a comparison here to Maryland. And that started about two or three years ago. And actually there have been episodes over decades.

  • 12:18:15

    DAVISBut the most recent example is with dog bites and Maryland and the legislature there. There was a series of dog bites by Pit Bulls that, you know, maybe someone crossed over the fence. And so they were partly at fault because they were in the yard. But it was your dog who bit me and, you know, that did all this injury. Equally, you know, you don't have people walking down the street who carry car insurance or the kind of personal liability insurance that might cover those kind of situations. So the Maryland legislature went back and forth over years about what to do with this.

  • 12:18:43

    DAVISLast year, the Maryland high court reaffirmed contributory negligence as the standard in the state. But the legislature has started a move toward giving dog -- victims of dog bites a little bit more rights.

  • 12:18:57

    NNAMDIBruce, as an attorney, I'd like to have you weigh-in a little bit more on Allison's case. Allison, you said that you were hit while you were on the sidewalk...

  • 12:19:04

    ALLISONAbsolutely. I was on the...

  • 12:19:04

    NNAMDI...but that you fell onto the sidewalk. But because your blood spilt onto the street, you could not prove that you were not on the street?

  • 12:19:12

    ALLISONThat's correct. It spilled into the gutter part of the street, right next to the curb.

  • 12:19:18

    NNAMDIYou were hit by a car?

  • 12:19:19

    ALLISONYes, I was.

  • 12:19:20

    NNAMDIAnd the driver was able to claim contributory negligence on your part?

  • 12:19:24

    ALLISONOf course.

  • 12:19:25

    NNAMDIDoes that sound like the way it works, Bruce Deming?

  • 12:19:27

    DEMINGIt certainly does. And, you know, I can't comment on her specific case...

  • 12:19:30

    NNAMDISure.

  • 12:19:31

    DEMING...because I don't know all the evidence, but it certainly sounds typical of a situation where someone can be caught up in this almost unthinkable doctrine. I don't think many people realize or appreciate how punitive this doctrine is, Kojo. And the fact that there's a possibility that an injured party did anything at all, no matter how remotely connected to the accident that might have contributed to it, if there is that argument to be made, the insurance company and their lawyers will make it. They will deny liability and they will force people like Allison to go to court and have to go through all the expense and the effort of a trial in order to prevail, if they can.

  • 12:20:10

    NNAMDIAllison, thank you very much for your call. Ryan in Chevy Chase, Md. wants to reinforce a point that we had already made but Ryan, I'll let you speak for yourself. Ryan, you're on the air. Go ahead, please.

  • 12:20:21

    RYANHi, Kojo. Thank you for taking my call. My brother used to run ten miles a day and was struck by a school bus while he was in the crosswalk in Maryland last year. And he was -- he left a nine-year-old son and his wife. And he was -- they were not able to collect anything because of this law. And we did hear about how it was upheld. And I never heard of it and I don't think most people ever heard of it, unless they've been involved in some type of an accident.

  • 12:20:58

    NNAMDIHow was your brother found to have contributed the necessary, at least 1 percent to his own demise?

  • 12:21:06

    RYANBecause it was -- there was one witness and they stated that the bus had the green light. And whether he was standing on the sidewalk right in -- next to the crosswalk and was struck by the actual side mirror of the bus or whether he was technically in the street, there was only one witness to disprove -- or actually he affirmed the bus driver's account and was awards nothing because of the contributory negligence. And because he had the green light therefore they were not able to collect anything. His son has special needs and his schooling is very expensive and it's quite a burden for my sister-in-law.

  • 12:21:46

    NNAMDIOkay. Thank you very much for making that point. We're going to have to take a short break but if you have called, stay on the line. If you'd like to call, the number's 800-433-8850. We're talking about bicycles and liability. And you can also send us an email to kojo@wamu.org or shoot us a tweet @kojoshow. Are you a cyclist? Have you ever been in a bike accident? If you were injured did you receive any compensation, 800-433-8850? I'm Kojo Nnamdi.

  • 12:24:02

    NNAMDIWelcome back. We're discussing bicycles and liability with Aaron Davis. He's a reporter with the Washington Post who covers the district. Bruce Deming is an attorney and the author of "Surviving the Crash: Your Legal Rights in a Bicycle Accident." They both join us in studio. Joining us by phone now is Eric Goldberg, the Mid Atlantic Region vice-president for the American Insurance Association. Eric Goldberg, thank you for joining us.

  • 12:24:25

    MR. ERIC GOLDBERGKojo, good afternoon.

  • 12:24:26

    NNAMDIWhat are some of the issues that the association, the insurance association sees with this rule change?

  • 12:24:33

    GOLDBERGYeah, just to be clear, the bill currently before the council, what we're talking about - we're not talking about abrogating the doctrine of contributory negligence. What we're talking about really is creating a special protected class of bicyclists and a unique tort law for them. Let me make another point. While, you know, there's -- it's been said that 46 states have a comparative negligent standard, only 12 states have what's called a pure comparative negligent standard and that's currently the bill that's before the council...

  • 12:25:02

    NNAMDIWhat the distinction?

  • 12:25:04

    GOLDBERGWell, right. The other 36 states have what's called a modified comparative negligent standard. And what modified means is, for example -- and they're all slightly different -- if the plaintiff is at least as negligent as the defendant then they can't recover. So in other words, if the bicyclist is, you know, 80 percent negligent and the driver is 20 percent negligent, the bicyclist would not be able to recover.

  • 12:25:28

    GOLDBERGSo, you know, these comparative fault systems, the pure comparative fault system has been criticized for allowing a plaintiff who's primarily at fault to recover from a lesser at-fault defendant who is -- you know, who is responsible for some portion of the damages. You know, so what is the concern for the insurance industry?

  • 12:25:48

    GOLDBERGWe know that in other states that have moved from a comparative to a contributory negligent standard, auto insurance rates have gone up. So this kind of a move could only really have a negative impact on auto insurance costs for district drivers. This is especially a concern because we know that in the district about one in five drivers is currently uninsured. And we certainly don't want to increase that number.

  • 12:26:10

    GOLDBERGNow, Bruce mentioned that Maryland had taken up the issue of comparative versus contributory in 2012 following this court case that went up to Maryland's highest court. Basically the court said, look, this is not -- we're not going to change this law. It's been on the book since the 1840s. This is a policy determination for the General Assembly. But the General Assembly declined to change the law at all. One of the reasons is because the state comptroller testified as to the potential for costs to Maryland itself.

  • 12:26:43

    GOLDBERGThink about all of the state vehicles, and in the case of the District of Columbia, the city vehicles that are on the road. And these vehicles are self-insured. So to the extent that costs get increased for drivers, they also get increased for the district. And of course who pays for that, district taxpayers. This would also be the case for fleet vehicles, businesses that own fleet vehicles who are on the road that are largely self-insured. So it's a business issue as well.

  • 12:27:12

    NNAMDIWell, you pointed out that Maryland has those laws and the legislature refused to change them. Virginia has also contributory negligence laws on the books. But what does it mean if D.C. takes a different route than Maryland and Virginia, the adjoining states? Is that significant?

  • 12:27:26

    GOLDBERGYes. Well, with respect to the law that's -- or excuse me, the bill that's currently before the council, what it means is that when a bicyclist crosses over from, for example, Virginia to D.C., a new set of standards would apply to them. Now, everyone who uses the public roads has a responsibility to obey the law. It's really unclear though why a bicyclist should have a lower standard of care than a pedestrian or a motorist.

  • 12:27:51

    GOLDBERGKeep in mind also that two years ago the bicyclists got a special law enacted for them which is kind of extraordinary. It provides them in an accident for negligence with the ability to recover attorney fees, which is quite extraordinary under the United States system of law, triple damages -- treble damages and punitive damages, which again is highly unusual in a negligent situation. I don't know that that law has been on the books long enough to have evaluated its effectiveness.

  • 12:28:19

    GOLDBERGBut the point is, and this point was made earlier, is that the district is really in a state of flux. New bike lanes are being created all the time. Things are changing. In fact, just this week the bike lane in front of our office, these concrete barriers were installed to prevent drivers from entering into the bike lanes, you know, either advertently or inadvertently.

  • 12:28:39

    GOLDBERGThe point here is that the bicyclists have this new cause of action on the books and it provides them with attorney fees and other things. That and these new system of bike lanes and barriers and so forth should be given a chance to work and evaluated before we rush into changing the law.

  • 12:28:56

    NNAMDIOkay. If the District of Columbia council were to enact and the mayor were to sign comparative negligence laws that maybe even if they're modified but extended to pedestrians, would your association continue to oppose them?

  • 12:29:11

    GOLDBERGWe would.

  • 12:29:12

    NNAMDIEven if they were modified you would oppose the modified comparative negligence laws standard/

  • 12:29:17

    GOLDBERGWell, that's currently not the bill that's before the council. And we would have to take a look at the piece of legislation. If it were amended before I could make a determination on that.

  • 12:29:26

    NNAMDIOkay. You also note that the law would have to take into account a range of other legal issues, which have yet to be addressed. You may have already addressed some of them earlier but what are you talking about?

  • 12:29:37

    GOLDBERGWell, for example, the doctrine of joint and several. This is the situation where there are more than one defendant. And say for example, one defendant is insolvent or uninsured. Under a joint and several doctrine the notion is that the plaintiff shouldn't be barred from recovering merely because one of the defendants has no assets. How would the law deal with that doctrine? The bill currently before the council is silent on that. So those kinds of things would really need to be studied and worked out before moving to a change in our tort law for bicyclists.

  • 12:30:12

    NNAMDIOur guest is Eric Goldberg. He is the Mid Atlantic Region vice-president for the American Insurance Association. Thank you for joining us.

  • 12:30:20

    GOLDBERGYou're welcome.

  • 12:30:21

    NNAMDIYou too can join the conversation. Give us a call at 800-433-8850 or send email to kojo@wamu.org. Counselor.

  • 12:30:30

    DEMINGWell, let me take them in turn.

  • 12:30:31

    NNAMDIThis is Bruce Deming.

  • 12:30:33

    DEMINGKojo, first of all, you know, we always hear from the insurance industry that rates are going to go up whenever there's a piece of legislation that they feel is contrary to their bottom line and their profit. I mean, my question back to Mr. Goldberg is, when don't insurance rates go up? My insurance rates have gone up since I've been driving a car and I think everyone's has. They do it on a yearly basis. With respect to...

  • 12:30:54

    NNAMDIWell, allow me to interrupt. Aaron, is this one of the things that the D.C. Council has considered, do you know?

  • 12:30:59

    DAVISOh, sure. The insurance...

  • 12:31:00

    NNAMDIThe effect on insurance rates?

  • 12:31:01

    DAVIS...the insurance rates were a prime, you know, issue that the insurance industry raised this week in the hearing. And I think you will hear that a lot more. There are a lot of lawyers on the council and I think that's something that will be a major consideration when this does go to the full council.

  • 12:31:17

    NNAMDIBruce.

  • 12:31:18

    DEMINGWell, the next point was that he said that, you know, this is going to result in increasing payouts from the insurance industry to injured people. Well, yes, that really is the point. There are people who are having their claims denied today that don't deserve to have their claims denied due to this very harsh principle of law. Will additional monies be paid to them for, you know, their injuries? Yes, they will, hopefully. Isn't that why we have insurance companies in the first place?

  • 12:31:47

    NNAMDIRight now what happens if insurance denies a claim by a cyclist for compensation? What option does the cyclist have at that point?

  • 12:31:53

    DEMINGThe only option the cyclist has is to file a lawsuit, if they can find an attorney to take their case, Kojo. And this is an important point. Personal injury attorneys like myself take these cases on contingent fee. That means we invest a significant amount of time and energy in a case in the hope that we will be paid a fee out of a percentage of the recovery. Under this system, people that normally can't afford to pay a lawyer on an hourly basis can have access to justice.

  • 12:32:17

    DEMINGIn a case that looks like it has a solid contributory negligence argument, even if it may not have merit, most personal injury attorneys will turn their backs on these cases and they won't take them. So in many, many instances the injured party is simply shut out if the insurance carrier denies the claim.

  • 12:32:36

    DEMINGIf they do have the opportunity to find an attorney that will take their case, they're going to be looking at years of effort. It takes months and months, if not years for these cases to wind through the courts. They have to pay the costs associated with these cases, hire expert witnesses and so forth. That's on top of the contingent fee. So the bottom line is that under the doctrine of contributory negligence the doors to the courthouse and the doors to compensation are essentially slammed shut to these poor people.

  • 12:33:02

    NNAMDIA lot of people want to weigh in on this issue. I'll start with Dan in Jessup, Md. Dan, you're on the air. Go ahead, please.

  • 12:33:09

    DAN...Kojo. (unintelligible) have a general comment at the risk of sounding potentially ignorant to a bunch of your listeners. This bike law, everyone does have a right to be on the road. I would prefer if they stayed as far away from cars as possible. I'm glad you guys are discussing this because in the event that someone were in a bike lane and they were to hit a pothole or to just simply not pay attention and swerve into me and I were to be the cause of their death, you know, it would start getting into all the legal ramifications of which you guys are speaking.

  • 12:33:41

    DANSo I just kind of had a question about what specifically bike lanes in, like, the D.C., Maryland area what the rules are as far as if they're similar to crosswalks, someone walking and kind of why we have allowed bikes to become a part of the road when I have a two-ton vehicle and they have at most a 200 pound bike. And I'll go ahead and take my comment off the air. Thank you, gentlemen.

  • 12:34:00

    NNAMDIYou know, at 1:00 when police Chief Kathy Lanier joins us, that's one of the questions we'll be asking of her, if police officers themselves understand the rules of the road as they apply to bicycles. But here's Aaron Davis.

  • 12:34:11

    DAVISOne of the most interesting comments I thought this week in the hearing was Councilmember Tommy Wells who said, with the way things are right now with D.C. in transition of adding bike lanes but not being there yet on all roads that it is inevitable, it is almost required of bicyclists at some point in time to break a law to get from point A to point B. Well, you know, on one street they're following car laws, on another street they're walking across pedestrian -- they're maybe riding across a crosswalk like a pedestrian is. And there's some roads that are blocked because of the construction and they're in the middle of the road. And then what applies?

  • 12:34:44

    DAVISAnd so there's -- anyone who drives in D.C. right now sees this and sees the increasing, you know, conflict between bicyclists, pedestrians, of course motorists. And the big picture here is exactly that. There's been a lot of op-eds, a lot of columns, a lot of talk about, you know, this -- the war on bikes or the war on cars, however you want to frame it from your point of view. But it's now, you know, pardon the pun, colliding with this (word?) interest of insurance groups in D.C. which D.C., Maryland and Virginia are three of the only five left in the country that still have this.

  • 12:35:20

    DAVISAnd so they have, over many years, over decades made a convincing argument to lawmakers this should remain the case around here. I mean, this is where all the insurance industries are based, where all the lobbyists are here. And so, you know, they've made a convincing case whether, you know, that's up for the council. I think at this point they haven't decided if they should continue.

  • 12:35:39

    NNAMDIBut what is not continuing, if you will, is life as it used to be. We began this broadcast by saying that the reason that this issue is coming up is because of the rapid expansion of the number of bicyclists in the city. People have chosen it as their mode of transportation but in a way the bicyclists, at least in large numbers, are the new kids on the block. And what you hear is a lot of resentment from the older kids on the block who resent this kind of intrusion. And now that that intrusion is apparently entering into areas of the law in which pedestrians, but more drivers might find themselves having a liability, they're very resentful of this.

  • 12:36:16

    DAVISYou're right. Yes. There's very few areas right now where this contributory negligence issue is coming to a head so frequently. You know, in Maryland the case, you know, that went to the high court, I believe, was a goalpost on a soccer goal or something that fell on a guy's head. And so that doesn't happen 600 times a year in the Washington, D.C. -- at least I don't -- I'm not aware of that. And so you have that now -- every day there's an incident, there's an accident on the road and so how are we dealing with that?

  • 12:36:42

    NNAMDIHere's Gary in Bethesda, Md. Gary, you're on the air. Go ahead, please. Gary, who are you talking to in the background? Now you can hear me. Gary.

  • 12:36:52

    GARYYeah, hey, how are you?

  • 12:36:53

    NNAMDIYou're on the air. Go ahead, please. Sorry for interrupting your other conversation but join this one.

  • 12:36:57

    GARYNo, no, no. I'm in my car and getting breakfast at the courthouse but it's all good. Well, so I'm a lawyer and I'm a criminal defense attorney. I don't make my money off of personal injury. And if you don't think this is a money grab then you're nuts. Here's what it is. The bicyclists are always contributorily negligent. It is a rare case where you're going to find where some guy riding -- you know, driving his car decided just to go knock out a bicyclist.

  • 12:37:26

    GARYThe fact of the matter is they are incredibly vulnerable. They're on the, you know, busiest roads I can think of, horrible roads and, you know, rush hour traffic. You know, I'll tell you what. I have a little make believe button on my car. Every time I see a bicycle I want to push the damn thing. They're incredibly dangerous. And the problem is as a driver I've got no choice. I've got to get in D.C. I've got to drive. And you've got these crazy bicyclists in rush hour traffic. There they are in the circles. It's scary, it's terrifying as a driver. You don't want to hit these people.

  • 12:37:59

    GARYAnd now the money grab as well. You know, we've got to figure out who's contributorily negligent, come up with that percentage and then offset his recovery by that offset.

  • 12:38:09

    NNAMDIGary, you're an attorney but...

  • 12:38:10

    GARYThe money's going to be outrageous.

  • 12:38:11

    NNAMDIGary, you're an attorney but every manner in which you describe the bicyclists sounds that to you they are an alien life form. Is that how you say that?

  • 12:38:20

    GARYLet me put it this way. Here's how it is. Here's how it is. Bicyclists need to be on their own road. They cannot be on D.C. roads. D.C. roads are in horrible condition for lots of different reasons but the traffic was never -- the roads were never intended to handle the amount of automobile traffic and truck traffic and bus traffic and everything else that's on these roads. They're incredibly dangerous. And you've got somebody who's doing 15, 20 miles an hour at best, often slower than that, it's dangerous.

  • 12:38:49

    NNAMDIThe perception of bicyclists as crazy people seems to persist here in Washington, D.C. I have been to Amsterdam where there are many more bicyclists, where there are cars on the road, where there are trucks on the road. But because I guess it's been an existence there for such a long time or because maybe it's better organized than it is here, the perception is not of bicyclists as crazed individuals.

  • 12:39:14

    DAVISThat's true, Kojo. And, you know, as illustrated by the caller's perspective, bicyclists have a serious image problem. And in many cases it's well deserved. I mean, as an active cyclist myself and someone that represents cyclists, I see bike riders every day breaking the law or running through red lights.

  • 12:39:29

    NNAMDIAre they the majority?

  • 12:39:30

    DAVISI don't think they are but, you know, every time it happens it reaffirms in the minds of the people that are seeing that the negative perception. Look, you know, as cyclists on the road we can do better, *I think, and we need to do better to enforce sound riding practices and really understand that we have rights -- or responsibilities as well as rights on the road.

  • 12:39:51

    GOLDBERGAnd, Kojo, this is Eric. I mean, you know, look, there are reckless bicyclists and there are excellent bicyclists just like there are reckless drivers and excellent drivers. A concern here though is that if you remove the current standard, one of the things that you may be doing is removing an incentive for the cyclist to exercise due care and drive more responsibly and obey the rules of the road, because if now, you know, if this law were to pass and they were involved in an accident, you know, not only do you have the ability, you know, to make a recovering, but your attorney fees will be taken care of.

  • 12:40:25

    GOLDBERGUnder the old laws you can get triple damages. And you can get punitive damages even if the driver was merely negligent to a percent. So we shouldn't do things that take away an incentive for a driver -- for a bicyclist to ride responsibly. After all, one of the mantras of the bicycle association is share the road, which we need to do.

  • 12:40:46

    NNAMDIAnd you -- Gary, in Bethesda, thank you very much for you call. Here's a sampling of the common polls of this debate. We got a tweet from Darby, who says, "It's not cyclists' behavior that puts them at risks -- at risk. It's when a -- it's when car drivers don't follow the rules of the road." We got an email from Karen, "Montgomery County has spent billions of dollars on building bike paths or lanes and the cyclists do not use them. Also, I see them regularly in my area not following the basic rules of the road.

  • 12:41:12

    NNAMDI"They don't use hand signals and do not stop at traffic lights and stop signs. I would like to see this changed. They need to be aware of their own actions. Maybe cyclists need to carry insurance." What do you think about that?

  • 12:41:24

    DEMINGYou know…

  • 12:41:25

    GOLDBERGWell, in fact, in D.C., cyclists -- if you're over the age of 18 -- 16, you're not required to wear a bicycle helmet. That's one example of a regulation that probably ought to be changed if the goal is to improve bicyclists' safety.

  • 12:41:38

    NNAMDIHow about, Bruce Deming, cyclists being required to carry insurance?

  • 12:41:42

    DEMINGWell, you know, as we get an increased number of cyclist on the road, I think that the insurance industry is going to be stepping up to the plate more and more and offering insurance to cyclists. I mean, this is a two-way street. There have to be products out there that are available. Right now there's an increased number of insurance policies available to cyclists, but they're primarily in the area of property damage protection.

  • 12:42:02

    NNAMDIGot to take a short break, when we come back we'll continue this conversation. If you have called, stay on the line. We'll try to get to your calls. If the lines are busy, shoot us an email to kojo@wamu.org. Do you think cyclists need special protections when it comes to accidents? You can also go to our website, kojoshow.org, and join the conversation there. Or shoot us a tweet, @kojoshow. I'm Kojo Nnamdi.

  • 12:44:17

    NNAMDIWelcome back to our conversation about bicycles and liability. We're talking with Aaron Davis, a reporter with the Washington Post, covering the District. Eric Goldberg is the Mid-Atlantic region vice president for the American Insurance Association. And Bruce Deming is an attorney and the author of "Surviving the Crash: Your Legal Limits in a -- Your Legal Rights in a Bicycle Accident." Bruce, there was a point you wanted to make.

  • 12:44:38

    DEMINGYes. I wanted to address some points that Mr. Goldberg has made more than once with respect to a law that was passed for cyclists a few years ago. He's made the assertion that cyclists that are involved in accidents can recover attorney's fees and get trouble damages. That's absolutely not true. I'm afraid you're -- you've misunderstood that statute, Mr. Goldberg. The statute that he's referring to was an assault bill.

  • 12:45:00

    DEMINGAnd it applies to the very rare, but quite frightening circumstance where a car actually assaults a cyclist on purpose with the car or jumps out of the car and physically assaults the cyclist. That's an assault bill, not an accident bill. And under the current laws in D.C., you cannot get your attorney's fees awarded. You do not get trouble damages in a motor vehicle/bicycle accident case. It's just not the law.

  • 12:45:26

    GOLDBERGWell, I don't believe that I'm misreading the law. An assault under D.C. is the touching by a motorist against a bicyclist. That would constitute an assault. So I think that I'm reading the law correctly, Bruce.

  • 12:45:38

    DEMINGI don't -- I know of no case law that would support that. If you have it, I'd love to see it.

  • 12:45:43

    NNAMDIAaron, cycling advocates make the point that I was referring to earlier, that police officers do their best in these cases, but sometimes aren't fully aware of cycling laws themselves. We intend to ask Police Chief Cathy Lanier about that, but what do advocates say is needed there?

  • 12:45:59

    DAVISRight. There is certainly a perception among the bicyclist advocate groups in Washington that the police officers who come and respond to these accidents don't understand the -- all the laws, at least all the cycling laws. And actually just the practice of what it's like to ride a bike in D.C. And I think that it's compounded often in their minds by the fact that, as Tommy Wells said the other -- a council member -- that it's often the bicyclist who's getting loaded into an ambulance after an accident and it's the motorist who's left behind to make his case to police.

  • 12:46:34

    DAVISAnd, therefore, if there's any notation on the -- this, you know, this is the bicyclist group speaking, but if there's any notation on a police report that the bicyclist swerved, according to the motorist, or that he didn't have a light or I didn't see him or he wasn't riding where he should have been, that those kind of comments are very hard for a bicyclist to overcome in the course of a court case, that they weren't somehow contributing to this situation.

  • 12:46:58

    NNAMDIWe got an email from Amy, in Northeast. It's kind of long, but, Eric Goldberg, I'd like you to respond. Amy writes, "I've spent a lot of time in francophone Africa, where there tends to be cars, mopeds, bicycles and pedestrians moving through the streets. Once, while riding in a taxi in the capital of Burkina Faso, I remarked at the driver that I was impressed with how courteous he was towards bicyclists. He said that by law the big fish is always responsible for any injury to a smaller fish."

  • 12:47:23

    NNAMDI"By virtue of their size and weight alone, a car's responsible for any collision with a bike or person. A bicyclist is responsible for any collision with a person, etcetera. By choosing to use the bigger mode of transport you're assuming additional responsibility. I would love to see if similar laws here could prompt a cultural shift in each mode of transport's attitude to the others." What do you say, Eric Goldberg?

  • 12:47:47

    GOLDBERGWell, you know, no doubt that more education is needed. Drivers need to be more aware that there are more cyclists on the road. Cyclists need to be aware, for example, when they ride down the sidewalk downtown and collide with pedestrians, that that's an inappropriate behavior. Is the question should we change D.C. tort law to mirror the law of Burkina Faso? I don't know that I can answer that. But certainly, again, this is a public policy decision that the council needs to make.

  • 12:48:18

    NNAMDIOn now to Juanita, in Washington, D.C. Juanita, you're on the air. Go ahead, please.

  • 12:48:24

    JUANITAYes, Kojo. Thank you. One of my questions was already observed, about the cyclists having to buy insurance.

  • 12:48:33

    NNAMDISure.

  • 12:48:33

    JUANITABut I've had a few encounters with bicycles. First of all, two cars, you know, a car next to me on the left -- a bicycle squeezes between us. I don't see him coming. I don't hear him. When I look -- in front of me. Okay?

  • 12:48:47

    NNAMDIWere you driving?

  • 12:48:48

    JUANITAYes.

  • 12:48:48

    NNAMDIOkay.

  • 12:48:48

    JUANITAYeah, and there was two -- and he came up between us -- between me and the car on my left. I was in the right lane getting ready to make, you know, I mean, the left lane. He came up behind -- between us. I didn't see him, didn't hear him. You don't hear him, you don't see them. You don't see them until they're in front of you. But he wanted to -- I don't know where he went -- he went straight across the street and I don't think he stopped for the stop -- for the light.

  • 12:49:06

    JUANITAAnd another one turned -- this is the truth. I was going to make a left turn. The car -- the bicycle came up right in front of me and made -- right -- it cut in front of me as I was making a left turn. If I had hit this guy, whose fault would it have been? Mine? Because my -- I had a bigger vehicle?

  • 12:49:21

    NNAMDIBruce, many people, like our caller Juanita, get frustrated when cyclists do not observe the traffic laws. That is part of the issue here, isn't it?

  • 12:49:31

    DEMINGSure it is, Kojo. And, you know, cyclists can do better in obeying the law, just as automobiles can do better. You know, I was struck by a comment made by Councilmember Grosso at the hearing on Monday. And when he said, "Look, you know, in the end of the day, bicycles aren't going away. We're going to continue to have increased use of cyclists on D.C. roads. And cars aren't going away. So we're going to have to work -- all of us -- at taking care of each other out there. And that means paying more attention.

  • 12:49:59

    DEMINGCyclists could be riding slower and obeying the laws a lot better and automobiles are going to have to learn to look a little bit more carefully and watch for cyclists. It's just the way it has to be if we're going to get along out there.

  • 12:50:11

    NNAMDIHere's…

  • 12:50:11

    GOLDBERGAnd I agree with that point, Kojo. You know, it may be worth, as well, revisiting the regulations, the traffic safety regulations that are currently applicable to cyclists. And I'm sure Bruce knows this better than I, but I do know the last time I looked that cyclists are not required to do some of the things that drivers are. For example, passing on the right is acceptable for a cyclist in D.C. Maybe it's time to revisit some of these regulations.

  • 12:50:35

    NNAMDISpeaking of regulations, here is Claire, in Washington, D.C. Claire, you're on the air. Go ahead, please.

  • 12:50:42

    CLAIREHello. I am a bicyclist and I love the idea that the D.C. bike culture is expanding, but unlike the caller earlier who wanted bicyclists off the road, my concern is that they're getting on the sidewalks. I'd love the guests to say something about bicyclists on sidewalks. I see this mostly with the red bikes, the rental bikes. I've seen entire families riding on sidewalks. I spend many hours a week as a pedestrian, and so I've had like near accidents thinking -- there's a person next to me, and there's a bicycle coming or six bicycles coming. I think that's a big problem and I see it more and more. So I'd love to hear comments on that.

  • 12:51:20

    NNAMDIAaron Davis, I know there are segments of downtown Washington where cyclists are not permitted to ride on sidewalks, but that is not a regulation citywide, is it?

  • 12:51:28

    DAVISIt's not. The core of downtown it is legal to ride a bicycle on the sidewalk. The ironic part is that where they have located these racks that have all of the bicycles that you can, you know, share, the bicycle shares, those are on the sidewalk. And so you have to either walk or ride your bicycle off the sidewalk or onto the sidewalk to get to those racks. And that was something that was discussed the other day on the hearing as well.

  • 12:51:54

    DAVISYou know, we don't have a situation we're in where there is much of a buffer zone. There's -- in fact, there's conflicting space on the sidewalk with bicyclists and pedestrians right now.

  • 12:52:02

    NNAMDIAnd we are located on Connecticut Avenue, which during rush hour in the morning or the evening is crowded with cars, some of them going at fairly rapid rates. And I have noticed that cyclists sometimes leave the road to ride on the sidewalk because of what seems to be a fear of the rush of the traffic in which they find themselves. And, I guess, if you look at the sidewalk and you're riding and you see that it's fairly clear -- or certainly clearer than the road -- that's an option that cyclists take that is legal.

  • 12:52:29

    DAVISRight. We had one of our columnists, Courtland Milloy, wrote a column a while back to get some attention…

  • 12:52:34

    NNAMDIOh, yeah.

  • 12:52:35

    DAVIS…on this subject. And then he wrote a follow-up saying, "I talked to a bicyclist and asked him why he was riding on the sidewalk. He said he was fearing for his life riding down the middle of the road." And so, you know, there's certainly -- there's -- in any given block, in any given commute and, you know, you might have a regular route, but on a particular day it seems easier to cut, you know, onto the sidewalk.

  • 12:52:52

    DAVISI never understood much of this until, you know, I commuted by car for many years. And then just in the last year I've been working downtown more and occasionally ride my bike. And it's very fascinating to see it from both sides.

  • 12:53:06

    NNAMDIBruce, there has been some discussion around stop signs and whether cyclists should be required to observe them. It's my understanding that in Idaho, cyclists do not, in fact, have to stop at a stop sign. How about in our region?

  • 12:53:18

    DEMINGOh, you absolutely do have to stop at a stop sign. And, you know, I'm always telling people that I speak before that my number one beef with cyclists is that they blow through stop signs. It's only to the good for people to come to a complete stop, both feet on the ground, when they come up to a stop.

  • 12:53:35

    NNAMDIWhat's an Idaho stop?

  • 12:53:39

    DEMINGWell, I think a -- I don't know what an Idaho stop is, but it sounds like a roll-through to me, Kojo.

  • 12:53:42

    NNAMDIWell, they say it -- in Idaho, for 32 years cyclists have been allowed by law to slow down at stop signs, check for cars and pedestrians and continue if the coast is clear. Of course, the coast being clear always sounds like something that people who are involved in illegal activity use. You can come in now, the coast is clear.

  • 12:54:05

    GOLDBERGAnd not to defend the practice, obviously, but the makeup of Idaho and its densest urban areas, I would imagine, probably doesn't come close to the density of downtown Washington. So perhaps the rule is different for a reason.

  • 12:54:19

    NNAMDII knew I thought of that. There was an old Mom Mabley joke in which her husband answered the phone and said, "You've got the wrong number." And Mom says, "What was that?" He said, "Some guy inquiring about the weather, wanting to know if the coast was clear." Here is Nathan, in Washington, D.C. Nathan, you're on the air. Go ahead, please.

  • 12:54:36

    NATHANThanks very much. I just wanted to circle back to the discussion that you had a little earlier about the difference in sort of attitude towards cyclists here. And I think you brought up the idea of how it's a little different in Amsterdam.

  • 12:54:49

    NNAMDIYes.

  • 12:54:49

    NATHANI wonder if that has a little bit to do with our own relationship with automobile in this country, historically, where, you know, you drive when you want to drive, where you want to driver. It's long time -- it's been that way a long, long time. It's not necessarily the same way in Europe. I think the way that cities have evolved in terms of how they've tried to incorporate more cycling and more alternative transportation modes has been a little bit more forward-thinking.

  • 12:55:14

    NATHANAnd I think that as we transition to that the attitude toward cyclists by -- from the automobile drivers should be probably taking that into account a little bit. It's really doing the city a favor. It shouldn't really be seen as a hardship or a hassle because it's just not practical to think about filling our cities with more and more cars.

  • 12:55:31

    NNAMDIIndeed, you make a good point. Eric Goldberg, what we might be seeing is a kind of cultural change taking place. Here, young people, decades ago, aspired to owning a car and being able to drive it freely wherever they wanted. Today we're seeing an increasing number of young people, who, especially when they live in cities, choose not to ever own a car.

  • 12:55:54

    GOLDBERGI think that's an -- I think the caller makes an excellent point. There is a big cultural difference between here and cities like Amsterdam, which is even more dense than D.C. I've been there several times. I think that perhaps our attitudes towards bicycles and bicycling will change. If we were paying $8 or $11 a gallon for gas, instead of $3.50, we'd be driving smaller cars and driving less and making fewer automobile trips. So absolutely. I do believe that there is a huge cultural gap between attitudes here and in Europe.

  • 12:56:25

    NNAMDIWe got an email from Dan, who says, "These debates often get reduced to imagined power struggles between bikers and pedestrians and drivers. There is no such thing as a biker or a driver. There are people who are biking, walking, sometimes driving and sometimes on Metro. I don't see myself as a biker locked in existential battle with drivers. Sometimes I bike, sometimes I Metro, I frequently walk and occasionally drive. I'm not a biker. I'm a person biking."

  • 12:56:49

    NNAMDI"And those driving around me aren't drivers, they're people that happen to be driving. And no matter how I'm getting around I want to be safe." Is this, in the final analysis, the point behind all of this, Aaron Davis, trying to make sure that everyone is safe?

  • 12:57:02

    DAVISI think so. And I think we're at the beginning of what probably is a number of discussions by the council, by probably suburban jurisdictions around Washington as well. A number of issues -- should it be mandatory to ride a -- to have helmet when you're riding a bike? The equivalent there, you know, it's mandatory to ride a seatbelt -- to wear a seatbelt in a car. So that's certainly a discussion I think will be coming. I think equally, you know, requiring insurance or if you're going to carve out bicyclists for this comparative negligence, instead of contributory, that should just not be the standard for everyone.

  • 12:57:36

    DAVISCertainly there's not a lot of room on the road for anybody to get through. And, yeah, you have to also think that, you know, those 12 bikes bunched up by the light, that's 12 cars that are not on the road. So what's the benefit of that?

  • 12:57:46

    NNAMDIAaron Davis is a reporter with the Washington Post, covering the District. Thank you for joining us. Bruce Deming is an attorney and the author of "Surviving the Crash: Your Legal Rights in a Bicycle Accident." Thank you for joining us.

  • 12:57:56

    DEMINGThanks for having me, Kojo.

  • 12:57:57

    NNAMDIEric Goldberg is the Mid-Atlantic region vice president for the American Insurance Association. Thank you for joining us.

  • 12:58:03

    GOLDBERGThank you.

  • 12:58:03

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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