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Contributory Negligence In Maryland

contributory-negligenceCourt of Appeals Sustains Contributory Negligence Doctrine

Maryland dodged a bullet on Tuesday, July 9, 2013, when the state’s highest court, the Court of Appeals in Annapolis, decided in a 5 to 2 ruling to exercise restraint and not rewrite Maryland’s “contributory negligence” doctrine that helps protect Marylanders from lawsuit abuse.

UPDATE – Sep 19, 2014 – Dissent Continues In Maryland Contributory Negligence Standard – Judge Issues Rare Desent In Denial Of Certiorari – Rec

“It is not our task to invade the province of the General Assembly and enact into law a sweeping revision,” according to the majority opinion authored by Judge Clayton Greene Jr.

The case was brought by a Howard County soccer coach, James Coleman, who was injured after swinging on a soccer goal. Under the doctrine of contributory negligence the coach can’t be compensated if he was partly to blame for his own injuries. In the alternative, most other states that use “comparative negligence” would allow some compensation but reduce total compensation by some measurement of the relative fault of each party, encouraging many more cases to be filed in hopes of a sympathetic jury.

The Maryland General Assembly has rejected the change in doctrines many times over the years but it was assumed by most that when the Court accepted the Coleman case, the Court would use its decision to change the doctrine and circumvent the General Assembly. The fear was so great that supporters of the contributory negligence doctrine (including myself) sponsored a 2013 bill, HB 1156, to protect the doctrine legislatively, but the measured failed.

2013 House Bill #1156 To Retain Contributory Negligence

The majority opinion stated that there might be reasons to change the doctrine but that it should be left to the General Assembly, and they should be commended for such restraint. It is a quality unfortunately too rare among US jurists. Maryland should be proud.

If the change is to be made it should be made through the legislative process because the change would have a huge impact across all areas of Maryland life. Contributory negligence is one of the few business friendly policies that allow Maryland a competitive edge over other states. The doctrine reduces frivolous litigation and holds down insurance rates and should be retained.

Read below:

    1) Excellent analysis by Barry Rascovar about the political background of the case and the court;
    2) (scroll down) Department of Legislative Services background of contributory negligence and the case.


Legislating From the Bench in MD — Not This Time


IT WAS SUPPOSED to be a grand finale for Maryland’s top jurist, Robert Bell – a sweeping re-ordering of this state’s ancient negligence standards by wiping out the common law doctrine known as contributory negligence.

But a funny thing happened on the way to Bell’s retirement as Chief Judge of Maryland’s Court of Appeals: He couldn’t get his colleagues to go along with him. Instead, as often was the case during Bell’s tenure on the state’s highest court, he found himself in a distinct minority.

By a 5-2 vote, the court upheld Maryland’s contributory negligence doctrine employing the same logic as did Bell’s predecessor, Chief Judge Robert C. Murphy, 30 years ago.

In Maryland, and a handful of other states, if you contribute to your own injury, don’t bother suing others for negligence. It’s a common law standard that dates to 1848 in Maryland, 1809 in England and possibly all the way back to 1606.

Under this doctrine, personal responsibility is deemed paramount. It’s a quaint libertarian view in a 21st century world that increasingly tries to insulate individuals from any and all harm while blaming others — especially those with deep pockets – for our own stupidity or irresponsibility.

Bell dearly wanted to discard contributory negligence. He even formed a special judicial panel to study the matter and report back to him. Those findings didn’t go Bell’s way. The group’s conclusion: This is a complicated matter best left to the General Assembly.

But the chief judge wasn’t deterred. When a test case came along, he made sure the high court grabbed it.

IF ONLY . . .

In an ideal world, a comparative negligence standard would make total sense. Juries would impartially analyze legal arguments and decide how much the plaintiff was at fault for an injury and how much the defendant was at fault.

But juries often render emotional decisions based on the tragic plight of the defendant, heartbreaking tales of loved ones and fire-and-brimstone arguments from plaintiff lawyers urging jurors to hold Big Bad Business to account.

Opening up Maryland to comparative-fault standards would create a huge financial bonanza for litigators and a veritable tsunami of lawsuits swamping Maryland courts.

It also would present an enormous danger to the financial viability of many Maryland businesses, including the state’s medical industry. The number and size of malpractice lawsuits could go through the roof. If you think finding an obstetrician in Baltimore City — a jurisdiction notorious for outsized jury verdicts against doctors — is difficult today, imagine what it would be like if litigators started suing every doctor in sight for the most minor of medical problems patients encounter. If doctors think their malpractice insurance is high now, just wait.

Contributory negligence was embraced in this country in the early 1800s in part to guard against such predatory practices by litigators. Legislators feared that juries, egged on by plaintiff lawyers demanding huge damage awards, would award sums that could kill the nation’s newly developing industries.

That same fear, in a slightly different form, still haunts state lawmakers in Annapolis — and a majority of the state’s highest court.


The larger issue facing the high court was whether to legislate from the bench.

The panel agreed it had the power to revise a common law rule like contributory negligence. That the jurists refused to do so is a tribute to the majority’s determination not to extend its authority beyond the traditional dividing line separating judicial and legislative branches.

Five of the seven judges concluded: This is a complex, deeply intertwined legal doctrine that can only be altered after considering a kaleidoscope of ramifications affecting the entire gamut of tort liability and insurance law. That’s the role of the legislature, not the courts.

Judge John C. Eldridge, who wrote the majority opinion, even used Bob Bell’s own words against him. He quoted from a 2008 ruling in which the Chief Judge had written, ”It is well settled” that when the General Assembly makes clear its wishes on public issues, “the Court will decline to enter the public policy debate” — even if the issues involve a common law doctrine.

It is doubtful these jurists would have wasted so much time and energy debating this matter had not Bell insisted.

In the end, a substantial majority merely re-stated Bob Murphy’s 30-year-old logic for maintaining the legislature’s right to determine the fate of contributory negligence. Any other conclusion, Eldridge noted, “would be totally inconsistent with the Court’s long-standing jurisprudence.”

In Dissent

‘A dinosaur roams yet the landscape of Maryland’

Three cheers for Court of Appeals Judge Glenn Harrell for adding some levity to the dry and often ponderous writings of the state’s highest court.

Harrell passionately believes the state’s doctrine of contributory negligence needs to be deep-sixed. It is unfair and out of date, he says. He prefers a pure comparative negligence standard.

The problem is that he was virtually alone in making this argument. Only retiring Chief Judge Bob Bell sided with him.

Harrell, though, didn’t go quietly. He stated his arguments at great length — nearly three times longer than Eldridge’s majority opinion and nine times the length of a supplemental majority opinion by Judge Clayton Greene (with three co-signers).

What’s eye-catching about Harrell’s rant — he’s not a happy camper — is the judge’s opening salvo, which is dripping with mockery, humor and irony.

Here it is:

”Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

“My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”

Yes, Harrell was outvoted on the state’s highest court. But at least for two paragraphs he was entertaining.


History Of Contributory Negligence

Maryland is one of five jurisdictions, along with Virginia, Alabama, North Carolina, and the District of Columbia, that retains the doctrine of contributory negligence. Forty-six states follow the doctrine of comparative negligence, under which a plaintiff may recover damages, but a plaintiff’s recovery can be reduced if the plaintiff was partially at fault.

In a letter dated November 8, 2010, the Chief Judge of the Court of Appeals asked the court’s Standing Committee on Rules of Practice and Procedure to determine whether the court could replace the doctrine of contributory negligence with a form of comparative fault through the issuance of new rules or if the change would have to be made through a judicial decision. The request also called on the committee to study the judicial and economic consequences of such a change, as well as the impact of a change to comparative fault on related legal principles, such as joint and several liability.

In response, the Rules Committee submitted its report in April 2011 and did not recommend any changes to existing Maryland Rules. The report stated:
Respectfully, the Committee believes that the doctrines of contributory negligence, comparative fault, and at least some of the various associated doctrines and legal principles associated with those doctrines are matters of substantive law that do not fall within the ambit of practice, procedure or judicial administration. To the extent they are common law doctrines, they can be changed by judicial decision, as they have in several other States, but not, in the Committee’s view, by Rule.
On April 20, 2012, approximately one year after the Rules Committee’s report on contributory negligence and comparative fault, the Court of Appeals granted certiorari in James K. Coleman v. Soccer Association of Columbia, et al. (No. 9, September Term 2012), a case many believe presents the court with the issue of retaining or modifying the current contributory negligence standard versus switching to a comparative fault system.

The plaintiff in the case, James K. Coleman, was a 20-year-old assistant soccer coach for the Soccer Association of Columbia (SAC). In August 2008, Coleman was taking shots on goal while his team was practicing at a soccer field located on the property of a public school. While attempting to retrieve a ball from the goal, Coleman jumped up and grabbed the crossbar of the goal. Because the goal frame was unanchored, the goal tipped over and fell on top of Coleman, crushing his face. Coleman suffered a fractured orbit (bone structure area around the eyes) and required hospital treatment, including the insertion of a titanium plate. While in the hospital, Mr. Coleman admitted that he had been smoking marijuana on the day of the accident.

The case was tried before a jury in the Circuit Court for Howard County. In October 2011, the jury found that SAC was negligent for failing to properly secure the goal frame, but declined to award damages to the plaintiff, because it also found that Mr. Coleman was negligent when he grabbed the crossbar. Mr. Coleman appealed to the Court of Special Appeals, but also filed a direct petition to the Court of Appeals. SAC filed a cross-appeal.

The Court of Appeals, in granting certiorari, stated that the issue was whether the court should ameliorate or repudiate the doctrine of contributory negligence and replace it with a comparative fault regime.

Oral arguments were held in front of the Court of Appeals on September 10, 2012, and lasted for nearly two hours. In an unusual step signaling the importance of the case, the court not only solicited oral arguments from the attorneys for the plaintiff and defendants, but also from those persons and organizations who submitted “friend of the court” briefs. Proponents of a change in negligence systems argued that the all-or-nothing approach of the contributory negligence doctrine is harsh, outdated, and can result in allowing people who have harmed others to escape liability. Opponents argued that a shift to a comparative fault system would increase lawsuits and liability against businesses, and make Maryland less competitive with neighboring states. Opponents also argued that the General Assembly, rather than the courts, is the appropriate venue for a change to comparative fault.

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