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 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 crash 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 that 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 recovery. Unfortunately, Maryland has stuck to the 165-year-old outdated rule even as almost every other state has shifted to a more reasonable model to award money damages based on the relative fault. So if you are 75% negligent, for example, you pay 75% of the harm caused.
On July 9, 2013, the Maryland Court of Appeals reconsidered the issue of comparative negligence in Coleman v. Soccer Association of Columbia. In a 5-2 opinion, the court ruled that if Maryland is going to leave the Stone Age and adopt comparative negligence, that decision is going to have to be made by the legislature.History of the Rule
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 that falls below the standard to which he should conform for his 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," is 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. The defendant knows or should know of this 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 the defendant has actual knowledge or is under some legal duty that charges her with knowledge:
- that if he persists in a course that he is pursuing it will result in injury to another,
- which the other cannot, because of ignorance or disability, be reasonably expected to avoid,
- 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
- 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).Maryland Contributory Negligence Law May Be Changing
Most everyone realizes that contributory negligence is just an unfair law. In his dissent a few years back, Judge John C. Eldridge noted that "Few if any other legal principles have been criticized as much as this Court's continued adherence" to contributory negligence.
Pending before the Maryland Court of Appeals is Coleman v. Soccer Ass'n of Columbia, a case that might change contributory negligence law in Maryland.
In Coleman, the 20-year-old plaintiff was volunteering to help younger soccer players in Columbia, Maryland. A soccer coach that works for defendant Soccer Association of Columbia was coaching some young kids at Lime Kiln Middle School, in Fulton, Maryland. While warming up, plaintiff kicked a soccer ball in the goal. Plaintiff went to the goal to get the ball and grabbed onto the crossbar, probably a dumb thing to do. The goal flipped over, causing severe multiple facial fractures. Real injuries, plaintiff now has titanium plates in his face.
The jury found, probably correctly, that the plaintiff was contributorily negligent in jumping up and grabbing the goal. The question on appeal is whether the Maryland high court should join the vast majority of the rest of the country.
The court clearly appears to be wrestling with this issue. We should know sometime in early 2013 how the court will rule. Hopefully, this page will need a drastic rewrite.
One other point worth making. The Court of Special Appeals recently allowed a defendant to raise the defense of contributory negligence only because she had pled it in her answer. We tried a case a few years back in Baltimore City where the defendant pled contributory negligence and then renounced that position in discovery, providing specific answers admitting the defendant had no responsibility. At trial, the defense attorney started arguing contributory negligence. Incredibly, the court let the defendant submit evidence of contributory negligence to the jury (we won, anyway). But the take-home message is to make sure the defendant pled contribuory negligence in the answer to the complaint.More on Contributory Negligence
- Is Failure to Use a Seat Belt Contributory Negligence? (no)
- Battle in the Legislature over Contributory Negligence (surprising opposition to Maryland bill for comparative negligence from someone you would not expect)
- Maryland Drunk Driving Accident Passengers (how insurance companies try to blame the passenger in drunk driving cases)
- Will Maryland Make the Leap from Contributory Negligence? (a failed legislative effort to move Maryland out of the dark ages of contributory negligence)
- Article by Miller & Zois friend Christopher J. Robinette calling for an end to contributory negligence (agree) and joint and several liability (disagree)