By: Wayne Cohen, Cohen & Cohen, Washington D.C. (

My name is Wayne Cohen, and I’m a trial lawyer in Washington, D.C.. I want to extend a special thanks to my buddy Spencer Aronfeld for allowing me to guest blog. Spencer and I go way, way back. Let’s just say that George Bush (#1) was President when we attended law school together at the University of Miami. After graduation, I left and headed back home to Washington, D.C., where I have practiced law ever since. I currently am the Managing Partner of Cohen & Cohen, P.C.. Ok, enough about me!

In today’s blog, I’m going to talk about why Washington, D.C. is a tough place to get injured. When talking to a lawyer about a personal injury, you’re almost guaranteed to hear one word over and over again: negligence. That’s because tort law, the type of law the deals with personal injuries, is based around a person’s acts that are either done intentionally or negligently. It’s usually easy to show that someone intentionally hurt you (if someone beats you up in a bar brawl, odds are he didn’t accidentally beat you up … he acted intentionally). Negligence, however, can be harder to prove. As a general statement, negligence can be evaluated either as “comparative” or as “contributory.” The first category compares the level of negligence of both parties while the second category looks to see if the injured person contributed at all to his injuries.

Let’s take a simple scenario and see how it plays out differently based on comparative versus contributory negligence. Polly is a pedestrian. Davey is driving a car. Polly knows she should only cross the street in the crosswalk but she doesn’t feel like walking all the way to the crosswalk, so she looks both ways for cars, doesn’t see any, and crosses in the middle of the street. Davey is making a right turn out of a driveway and doesn’t look for pedestrians because he knows no one should be in the middle of the street. Davey hits and injures Polly. Both Davey and Polly were not doing what they should have been doing. They both acted negligently.

Let’s start with comparative negligence, the scheme that Florida uses. Here the jury will determine how negligent each party was, giving a percentage to both parties. Assume that Davey was more negligent than Polly. He’s 80% responsible for injuring Polly, and she’s 20% responsible. Here comes the math! If he jury determines that Polly should get $100,000 for her injuries, and Davey was 80% responsible, then Polly will receive $80,000 from Davey for her injuries. In some places, even if Polly was 80% responsible for her injuries and Davey 20%, Polly could recover $20,000 from Davey. If you’re Polly, you like this. If you’re Davey, you don’t!

There are a few states (DC, Maryland, Virginia, and North Carolina might be the only ones left) that still use contributory negligence. In those states the jury will determine that if Polly’s negligence contributed at all to her injuries. If it did, poor injured Polly is out of luck. Using the same scenario, if Davey is 80% responsible and Polly 20% responsible for causing her injuries, Polly gets no money from Davey. If you’re Davey, you like this. If you’re Polly, you don’t.

My law firm, Cohen & Cohen, P.C., handles injury and car accident cases in Maryland, D.C., and Virginia, so we are always faced with the difficulties of contributory negligence. In one case I was presented with, the defendant was speeding down the road, while intoxicated, with the radio blasting, and struck the potential client. The potential client was crossing the road, but out of a crosswalk. Under the theory of contributory negligence, if the potential client is even 1% at fault, then no compensation will be awarded.

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