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.
Let’s look at an 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. That seems fair, right?
The contributory negligence standard in Maryland is harsher for 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 the plaintiff’s injuries is an absolute bar to recovery. Under the example above, even if the jury believed 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 Unfortunately, Maryland has stuck to the 165-year-old outdated rule even as almost every other state has shifted to a more reasonable model to award money damages based on the relative fault.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, you pay 75% of the harm caused.
In 2013, the Maryland Supreme Court 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 will have to be made by the legislature.
- Video that explains the contributory negligence and Maryland and provides the relevant case law (in the video’s description).
History of the Rule
The Maryland Supreme Court adopted the doctrine of contributory negligence in 1847 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 Supreme Court adopted the last clear chance doctrine, allowing recovery by accident victims, who otherwise would be barred from recovery under the contributory negligence doctrine if the defendant had the last chance to avoid the accident.
The “last clear chance” doctrine is where the accident victim has, through her own negligence, placed herself in danger of injury at the hands of another, which she cannot prevent. The defendant knows or should know of this peril in time to avoid injuring him, and if 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).
Burden of Proof
Keep in mind that contributory negligence is a defense that must be proven by the defendant in order to bar the plaintiff’s recovery. This means that the defendant must be able to demonstrate that the plaintiff’s own negligence was a contributing factor to the injury. If the defendant cannot prove contributory negligence, the plaintiff may still be able to recover damages for their injuries.
Defense lawyers love to point out that the plaintff has the burden of proof in personal injury claims for good reason – it is effective. So plaintiffs’ lawyers need to drill down on this point at trial to combat this defense.
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, “Few if any other legal principles have been criticized as much as this Court’s continued adherence” to contributory negligence.
Pending before the Maryland Supreme Court in Coleman v. Soccer Ass’n of Columbia, a case that might change contributory negligence law in Maryland.
In Coleman, the 20-year-old plaintiff volunteered to help younger soccer players in Columbia, Maryland. A soccer coach that works for the defendant Soccer Association of Columbia was coaching some young kids at Lime Kiln Middle School in Fulton, Maryland. While warming up, the plaintiff kicked a soccer ball into 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 Maryland Appellate Court 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 ensure the defendant pled contributory 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)
- Last clear chance doctrine in Maryland