Washington, D.C., is one of just five jurisdictions in the United States that follows a contributory negligence standard of practice. Contributory negligence is a harsh and restrictive rule. Black’s Law Dictionary defines contributory negligence as “… the situation where the plaintiff has not exercised due care and has contributed to the accident.” But this is a literal definition. Its implications on your ability to make a claim for your pedestrian accident are more nuanced. In Washington, D.C., if a jury finds you to be even 1% negligent in the pedestrian accident that caused your injury, you are barred from making a recovery against the defendant. Contributory negligence in a DC pedestrian accident or any other personal injury accident is complex.
But how do we know whether a jury will find you at least 1% responsible? Many pedestrians believe it is never their fault if a car strikes them. However, the reality is that the laws in DC for pedestrians are not so simple. Contributory negligence law impacts many pedestrian accident cases. This rule can be contrasted with other states that follow a comparative negligence standard. You can still make a claim if a jury finds you 20% responsible in those jurisdictions. The effect of that 20% finding is that you may recover only 80% of the damages you suffered. While many believe it is a more reasonable rule, this is not true in DC, Maryland, or Virginia. The only way to potentially avoid the contributory negligence standard is to file suit against the defendant in the state he resides, assuming the defendant lives out of the area.
The contributory negligence rule is an affirmative defense raised by the defendant. While it is a concept that we will discuss during your initial consultation to get ahead of it, the reality is that the defense has to prove the defense. In other words, we do not necessarily have to prove that it does not apply; the defense must show that it does. This gives us a slight advantage tactically. Does the defense have a way of establishing that you acted negligently in your accident? If they allege that you were outside the crosswalk, but no evidence supports that, the defense should fail. But, of course, juries can be unpredictable. If they do not believe your narrative and do believe the defense, then their verdict will support that, and you will lose.
This is also known as the humanitarian doctrine. It originated from common law to make contributory negligence less restrictive on recovery in tort cases. This rule allows a plaintiff to recover despite being contributorily negligent. While this rule does not come up much in accidents involving exclusively cars or trucks, it is a much more significant factor in pedestrian accident cases. It focuses on which party had the last clear chance to avoid the accident. In almost all cases, that will be the car. For example, even if you are not in a crosswalk or sidewalk, but a car has plenty of time to stop and doesn’t, the last clear chance doctrine may preserve your ability to make a claim. However, it is not so simple.
Caselaw looks for whether “inattentive peril” existed at the time of the accident. If there was inattentive peril, the negligent driver must have known the pedestrian’s predicament. Inattentive peril can be contrasted with helpless peril when a pedestrian negligently puts himself in a position of actual peril from which he cannot extricate himself.
One last instance where a court will not likely apply the last clear chance doctrine is in cases of prior negligence. For example, if a driver was negligent in not getting his brakes repaired on his car, and the brakes not working were the reason for the pedestrian accident, then the court will not apply the last clear chance doctrine. In this case, the pedestrian will not be able to recover due to contributory negligence despite the defendant driver’s clear negligence.
If you are in a pedestrian accident at a crosswalk in Washington, D.C., you are unlikely to be contributorily negligent. However, it is still possible. For example, if you walk in front of a car from the sidewalk and the car has no time to stop, you may be found contributorily negligent. This makes sense. Of course, walking in front of a car that does not even have time to stop is negligent. Even if they were arguably negligent by not anticipating that you would walk in front of the vehicle, that is not what the law cares about in DC.
A judge cares about whether you were even 1% negligent yourself in causing the accident. Moreover, in this scenario there is no last clear chance for the driver to stop because you stepped out at the last possible moment. Thus, there would be no road to recovery in this hypothetical involving a crosswalk.
A sidewalk pedestrian accident is less likely to involve contributory negligence. The one instance where we have encountered this may be possible is with a biker. In Washington, D.C., bicyclists have the right to use the sidewalk. While this is a strange and inconvenient rule, it is a way for the District to encourage a greener city and keep bikers safe from drivers. Of course, the flip side is that it is more dangerous for pedestrians. Although, bikers are required to yield to pedestrians on the sidewalk.
A bicyclist in a crosswalk has all the rights and responsibilities as a pedestrian in a crosswalk, though cyclists must yield right-of-way to pedestrians. This is sometimes a point of contention as many believe a crosswalk is designated solely for pedestrians. However, the rules for crosswalks are similar to those for sidewalks in DC.
The DC pedestrian accident attorneys at Gelb & Gelb, P.C. will assist you from start to finish with your case. First, we help you determine whether your case has any merit. Remember, despite the driver’s clear negligence, you may not have a viable claim. In other words, even if a driver hits you when you have the right-of-way, you must beware of contributory negligence as an affirmative defense. However, our skilled and experienced attorneys may be able to defeat this defense with the well-established doctrine that exists in DC. If we decide you have a case worth pursuing, we will ensure you receive medical treatment for your injuries while we collect evidence and investigate your accident. Once that is complete, which may take several months or years, we build your case and begin settlement negotiations with the defendant’s insurer.
In the majority of cases, we can settle a case before moving to trial. Through our decades of experience, we can accurately evaluate a case’s worth. Once we receive a settlement offer that we deem representative of your damages, we will recommend that you accept it. We will move forward to trial if you are still unsatisfied with a settlement offer despite our recommendation.
The laws involving contributory negligence in a DC pedestrian accident can be complex. There are hundreds of rules, and then there are countless exceptions to those rules. Do not take on this process alone. Reach out to a personal injury attorney today for a free case evaluation.