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D.C. Council weighs making it easier for e-scooter riders to collect damages after crashes

A scooter rider and bicyclist make their way along H Street NW in 2018.
A scooter rider and bicyclist make their way along H Street NW in 2018. (Robert Miller/The Washington Post)
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Scooter and e-bike riders in the District could soon have a greater chance of collecting damages when they are involved in collisions with vehicles.

The D.C. Council is weighing legislation to exempt riders of motorized bikes and scooters from the contributory negligence standard that governs tort claims in the District. The legislation would make it easier for them to recoup money for medical bills and other costs when injured in crashes.

The bill expands on a 2016 law that gave that protection to pedestrians and riders of nonmotorized bikes, ensuring them a greater chance at collecting medical costs after a crash.

Before 2016, bicyclists and pedestrians were also barred from recovering damages, even if the driver was 99 percent at fault. Lawmakers and advocates say it is time to give riders of motorized devices the right to argue fault with insurance companies and juries.

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The bill passed on first reading Nov. 17 and is expected to receive a final vote Dec. 1.

“If you’re injured in a collision on our streets, your ability to recover in a lawsuit hinges on what you were riding, whether you were walking, where you were injured and who injured you. And most important, whether your own negligence contributed even 1 percent to the crash,” Council member Charles Allen (D-Ward 6) said while discussing the proposal in committee earlier this month.

D.C. is among a handful of jurisdictions in the country that maintains the doctrine of contributory negligence. Forty-six states have abandoned that standard in favor of a comparative negligence standard, which dictates how responsibility for a collision would be shared between those involved.

Supporters of the change call the contributory negligence doctrine harsh, noting that when a scooter or e-bike rider is struck and injured, he or she is barred from recovering any damages if the rider is even 1 percent negligent.

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Because of the law passed four years ago, a bike rider has a chance at collecting damages when injured in a collision. But had the person been on an e-bike or e-scooter, their chance to recover damages are doomed because those users would not have been covered in the law, officials said.

The 2016 law, lawmakers said, was a step to offering equity to vulnerable road users but it didn’t anticipate the proliferation of motorized scooters and bikes, two transportation modes that have grown in recent years. Shared e-scooter services arrived in the nation’s capital in early 2018 and are a popular choice for residents and visitors to get around.

D.C. Council member Mary M. Cheh (D-Ward 3), the lead sponsor of the bill, said the Vulnerable User Collision Recovery Amendment Act catches the law up with the new forms of transportation.

Under the measure, she said vulnerable road users “have to be found by the jury to be beyond 50 percent at fault for their injuries in order to be barred from recovery. And that makes it so much more equitable and fair.”

The measure establishes that comparative standard will be applied in cases where the plaintiff is a pedestrian or a “vulnerable user” of a public highway or sidewalk. A vulnerable user is defined as someone “using an all-terrain vehicle, bicycle, dirt bike, electric mobility device, motorcycle, motorized bicycle, motor-driven cycle, nonmotorized scooter, personal mobility device, skateboard, or other similar device.”

The bill also expands the comparative standard to incidents that occur on sidewalks. It now applies only on roadways.

Between 2017 and 2019, 114 people were injured and one person died in crashes involving e-scooters, according to the District Department of Transportation. During the same period, 1,635 people were injured and six died in crashes involving bicycles.

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Mayor Muriel E. Bowser’s administration has expressed support for the measure. If approved by D.C. Council, the bill will go into effect after approval by Bowser (D) and a 30-day period of congressional review.

Some scooter companies, including Lime, have voiced support for the measure. The company, which operates 720 scooters and up to 2,500 e-bikes in the District, said scooters are quickly growing in popularity and “the laws should reflect the reality that D.C. residents want scooters as a transportation option.” Nearly 1 in 6 D.C. residents used e-scooters in 2019, according to a Washington Post poll.

“This bill is an important step in protecting vulnerable road users including pedestrians, bicyclists, and scooterists, who disproportionately bear the burden of traffic violence,” said Robert Gardner, Lime’s director of government relations for the Washington region.

Although advocates for scooter riders, cyclists and pedestrians support the change, the insurance industry has in the past lobbied against it, saying the switch would result in unintended consequences, including higher insurance premiums for city residents.

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In comments to the D.C. Council about the legislation last year, the Trial Lawyers Association of Metropolitan Washington D.C. urged against expanding the definition of “vulnerable user” to include electric scooters, saying the devices were relatively new and the city still lacked established regulations for the devices. The council last month approved new rules governing e-scooter services.

“Providing scooter riders with special legal standards is premature until these regulations have been established and fully vetted,” the group said.

Wayne E. McOwen, executive director of the District of Columbia Insurance Federation, did not express a position on the bill but said the city should consider additional initiatives aimed at controlling motorized scooters.

“Of course it is true that in a collision with a motor vehicle, a scooter operator is at a distinct disadvantage,” McOwen said. “Nevertheless, the simple fact is that vulnerability should not excuse responsibility. We are all taught to obey the laws, that there are consequences to not doing so, consequences from our negligence. And there should be.”

Allen said at a committee meeting on Nov. 12 that the bill will ensure road users a more equitable standard, noting that without the shelter from the contributory negligence statute, people often can’t even get an attorney to take their cases.

It will also, he said, “encourage all road users to conduct themselves safely and with due regard for others.”

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