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.
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.
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 d€mn 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?