The DMV is politically pretty progressive, but historically has lagged behind the rest of the country on a key issue affecting victims of road violence - a doctrine known as contributory negligence. 

contributory negligence blame for accident in Virginia DCWhat is contributory negligence?

Contributory negligence is a legal rule that says if a victim is even 1% responsible for their own injury, they cannot recover. So, if you’re driving with the radio blaring, and you can’t hear a siren, and end up being hit by a police car that runs a red light, even though you did nothing wrong? Maybe you drive through a yellow light, and there is a dispute about whether you were partially to blame? There is a pretty good chance your case would be tossed out of court or that lawyer wouldn’t even take your case. 

The result of this rule is extremely unfair. Looking at your phone in a crosswalk? Speeding 2 mph over the speed limit when someone makes a left turn into you? People with serious injuries have been unable to get financial help to recover in cases with facts like these (and still are, most of the time).

This rule is particularly harsh for cyclists, pedestrians, and e-scooter riders (known in DC as vulnerable users). There is unfortunately a bias that roadways are for cars. This bias results in cyclists, pedestrians, and others being blamed for collisions.  That bias plays out in police officers, judges, and juries thinking “well they shouldn’t have been in the road, so surely they are 1% responsible.”

The District’s Motor Vehicle Collision Recovery Act for the Win!

In 2016, the District created a carve out for pedestrians and cyclists, and later expanded that to all vulnerable users. Under the new rules, a vulnerable user can recover for 100% of their injuries as long as they are not 50% or more responsible for the crash/accident. So how does that play out? If there is evidence that a vulnerable user did something that contributed to their injury (like riding at night without lights), a judge or jury will assign to them a percentage of blame. As long as that percentage is less than 50%, they can still recover financially for their injuries. 

Unfortunately, this is not the rule in Virginia. Bike commutes and walkable neighborhoods are ever popular in Virginia areas like Alexandria, Arlington, Merrifield and Vienna, but the harsh contributory negligence rule applies, and the slightest degree of fault by an injured party means they cannot recover for their injuries. 

This is great news for people injured in the District of Columbia, but Virginia has some work to do. My eye is on Senator Scott Surovell, a consistent advocate for cyclists, to drive change on this front.

These situations are tricky - do not assume that just because you did something wrong (no lights, no helmet, maybe you had a beer) that there is no path forward for you. If you've been injured by a negligent driver, call me. I can help.

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