Contributory Negligence: The Un-Lottery of Personal Injury

J.D., a woman in a motorized wheelchair, tried to cross Cold Spring Lane at the eastern side of its intersection with Loch Raven Boulevard, in Baltimore City. It was dusk. She was within a marked crosswalk and the light was in her favor. A southbound car on Loch Raven turned left on a yellow light, straight into her path, leaving her on the ground and shoving the chair some 8 or 10 feet. Miraculously her personal injuries were not serious. She had managed to throw herself out of the chair moments before being struck.

More important to J.D. was that the wheelchair was destroyed. With the loss of this wheelchair, she lost her independence. She couldn’t afford a new wheelchair, and Medicaid was not going to give her another one anytime soon, except maybe a manual one which was of little use to her.

But J.D. was a self-starter. Despite having an illness that required her to use a motorized chair, she did everything she could to obtain personal injury compensation on her own. After all, she’d fought housing authorities over inaccessible public housing, pursued her Social Security Disability claim, qualified for Medical Assistance, and obtained food stamps.

J.D. hounded the driver’s insurer, but it refused to pay. The wheelchair wasn’t found in the crosswalk, they said, so she must have been jaywalking. She patiently explained why the wheelchair wasn’t found in the crosswalk. Then they said the chair was missing the reflectors required by Maryland law. They rattled off a statute, but wouldn’t make her a copy. Without a motorized wheelchair, J.D. couldn’t go to the library and look up this law. Refusing to pay the claim, the insurer sent her a letter saying it was “a clear case of contributory negligence.”

Abuse of the contributory negligence defense by insurers is only one of the reasons why, in virtually every claim involving personal injuries, it’s essential to consult a personal injury lawyer right away. This is Part II of the story of J.D., whose motorized wheelchair was demolished when a careless automobile driver turned into her path late one day as she wheeled herself across Cold Spring Lane.

As part of her personal injuries claim, J.D. pleaded in vain with the driver’s insurer to replace her wrecked wheelchair. Although they had dropped their ludicrous jaywalking defense the insurer next said J.D.’s chair lacked reflectors, so she was “contributorily negligent.” The two dreaded words. They wouldn’t pay a dime.

Crucial weeks had passed. The road had been cleared of debris. Who could tell if J.D.’s wheelchair lost its reflectors when it was smashed? J.D. couldn’t answer that, but she knew what she had to do next. She called a personal injury lawyer, who recognized how important it was to get the remaining evidence fast. The attorney visited J.D. at home, then ventured to the intersection where the debacle had taken place. The owner of the corner liquor store was on duty that day, as he had been the day J.D. was injured. He had sheltered the mangled wheelchair, hoping someone might be able to fix it for her. Luckily, the chair was still in his stockroom.

Here’s what the gentleman said:

“The insurance company sent a guy to look at the chair. I thought they were here to take it, but apparently, all they did was look at it.

“I wasn’t here then. But I saw what happened on the day of the accident. I was just coming in and saw the guy careen around that corner. Boy, I thought she was a goner….

“Nope, he didn’t have his lights on.”

Aha, thought the personal injury lawyer. What good are reflectors at dusk if the guy who hits you doesn’t have his headlights on?  

In Part III, I’ll tell you how it ended, and explain why contributory negligence is the un-lottery of personal injury. We’ll also be posting more on our resources page about “contrib.” It’s a tricky and unfair defense that is used to deny compensation to thousands of deserving claimants, including lots of people who think they don’t need a personal injury lawyer.