In Washington, D.C., a bill was slated for a committee vote today that would make it easier for bicyclists to recover damages when they are injured in motor vehicle accidents. The bill was postponed until Wednesday, which might be the last time to advance the bill before the end of the year. Proponents of the bill argue that the current law of contributory negligence unfairly punishes injured bicyclists who are even the slightest bit at fault in an accident. The bill would carve out an exemption to the liability law that would require insurance companies to use the comparative liability model employed by most states and weigh the relative fault of the parties involved in the accident.
Most states use the doctrine of comparative negligence when determining whether an injured party can recover damages. Under the law of comparative negligence, an injured party’s damages might be reduced, depending on the level of fault of the injured party. However, the law of contributory negligence is much harsher and can bar an injured party’s recovery even if that party is only 1% at fault. Only a handful of jurisdictions use the doctrine of contributory negligence. In addition to the District of Columbia, these states include Alabama, Maryland, Virginia and our own state of North Carolina.
Bicycling has grown more popular in Washington, D.C., over the past six years and the number of accidents involving a bicycle has more than doubled over the same period. As a result, an increasingly powerful bicycle lobby has developed in the area, and that lobby is pushing the passage of this bill. Proponents of the bill argue that the doctrine of contributory negligence is not only outdated but also does not account for the fact that injuries to bicyclists are far more serious than those to motorists. Opponents of the bill argue that the bill could increase auto insurance rates or lead to a challenge to tort law under other facts.
It is unlikely that such a bill would be proposed in Charlotte, since bicycling has not taken off in popularity here as it has in places like Washington, D.C. However, it is a reminder that not only cars, but also bicycles, have duties on the roadways. Because North Carolina also uses the doctrine of contributory negligence like Washington, D.C., the failure of a bicycle to comply with these duties can bar an injured bicyclist’s recovery of damages. So what are the duties of a bicyclist on the roadway in North Carolina?
Under North Carolina law, bicycles are included in the definition of a “vehicle.” G.S. 20-4.01(49) states that a vehicle is
Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon fixed rails or tracks; provided, that for the purposes of this Chapter bicycles shall be deemed vehicles and every rider of a bicycle upon a highway shall be subject to the provisions of this Chapter applicable to the driver of a vehicle except those which by their nature can have no application.
As a result, any statutory provision that applies to a vehicle, applies to a bicycle. G.S. 20-154 requires bicyclists to use handsignals when turning. G.S. 20-146 requires bicyclists to drive on the right side of the road. G.S. 20-173 requires bicyclists to yield to pedestrians at crosswalks. G.S. 20-129 requires bicyclists to have lamps on their bicycles when used at night. G.S. 20-137.4A prohibits a bicyclist from texting and bicycling. And G.S. 20-138.1 provides that a bicyclist who drives his bicycle on a public street while impaired does so in violation of the driving while impaired statute.
If a bicyclist is injured in an accident with a motor vehicle, the bicyclist might try to recover damages, alleging the negligence of the motor vehicle driver. The motor vehicle driver might then raise the defense of contributory negligence. Typically, to prove a plaintiff’s contributory negligence, a defendant must prove that the plaintiff had a duty to exercise reasonable care, the plaintiff failed to meet that duty, and the plaintiff’s failure to exercise reasonable care was both an actual and proximate cause of the plaintiff’s injuries. Negligence per se, however, assumes the failure to exercise reasonable care based on a person’s violation of a law which was intended to protect the public. If a plaintiff is negligent per se, then a defendant raising the defense of contributory negligence must prove only the issue of proximate cause.
Most traffic laws are designed to protect the public, and therefore, a violation of them would constitute negligence per se. However, certain statutory provisions specifically exempt the violation from being considered negligence per se. For example, as part of the texting and driving statute, G.S. 20-137.4A(c) states that “Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in any action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle.”
Another such example is contained in subsection (c) of G.S. 20-171.9, which contains helmet and restraining seat requirements for children riding on bicycles, and states that “No negligence or liability shall be assessed on or imputed to any party on account of a violation of subsection (a) or (b) of this section.”
It will be interesting to watch and see whether the D.C. bill is successful in its passage. For now in D.C., as well as in North Carolina, bicyclists will need to continue to exercise caution when bicycling on roadways if they want to avoid the consequences of the law of contributory negligence.
If you have been injured in a motor vehicle accident, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.