Contributory Negligence in Maryland

Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that continues the continues to use contributory negligence instead of comparative negligence. Under the majority rule doctrine of comparative negligence, when both the accident victim and the defendant contributed to a loss by failing to exercise the required degree of care, fault is relatively apportioned by the accident victim and the defendant(s). Accordingly, the damages awarded to the accident victim are decreased in direct proportion to her own negligence. For example, if the jury found that the accident victim's damages were worth $500,000 but felt that the plaintiff was 20% at fault for the accident, the jury award would be effectively $400,000.

The contributory negligence standard we use in Maryland is more harsh to injury victims and creates real challenges for Maryland personal injury lawyers seeking justice for their clients. Under this rule, the accident victim's failure to exercise due care which contributes even in the slightest way to plaintiff injuries is an absolute bar to recovery. Under the example above, even if the jury believe the plaintiff was only 1% at fault for her injuries, she would be completely barred from a recover.

The Maryland Court of Appeals adopted the doctrine of contributory negligence in1847 in Irwin v. Sprigg. In 1966, Maryland adopted the Second Restatement of Torts' definition of contributory negligence. The Restatement defines contributory negligence as "the conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant. . . . ."

Personal injury lawyers in Maryland representing accident victims have sought and been denied relief from the harsh effect of the contributory negligence rule for years by the Maryland legislature. In 1868, Maryland Court of Appeals adopted the last clear chance doctrine, allowing recovery by accident victim, who otherwise would be barred for recovery under the contributory negligence doctrine, if the defendant had the last chance to avoid the accident.

The doctrine of the "last clear chance," which is that where the accident victim has through her own negligence placed herself in danger of injury at the hands of another which she is unable to prevent, that if the other knows or should know of his peril in time to avoid injuring him, and she fails to exercise reasonable care to do so, she is guilty of actionable negligence. The basis of the doctrine of last clear chance is that the defendant has actual knowledge, or is under some legal duty that charges him with knowledge:

(1) that if he persists in a course which he is pursuing it will result in injury to another,

(2) which the other cannot, because of ignorance or disability, be reasonably expected to avoid,

(3) when the actor either has or is chargeable with that knowledge in time by the exercise of ordinary care to avoid injuring the plaintiff, but

(4) fails to do so.

In other words, the defendant is negligent, the accident victim is contributorily negligent and the plaintiff makes "a showing of something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence." Nationwide Mutual insurance. v. Anderson, 160 Md. App. 348, 356 (1995).

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