Maryland's top court once again considered abolishing contributory negligence and, in a recent court decision decided to keep it as the law in Maryland.
"We shall hold that, although this Court has the authority to change the common law rule of contributory negligence, we decline to abrogate Maryland's long established common law principle of contributory negligence," the Court of Appeals wrote in Coleman v. Soccer Association of Columbia.
Contributory negligence is a complete bar to recovery in a negligence or personal injury lawsuit. If the plaintiff is responsible for the accident in any way, then there is no recovery. Maryland is one of the few states that still applies contribution negligence. Comparative negligence is the law of the land in 46 states. Under comparative negligence, responsibility and damages are allocated between the plaintiff and the defendant. For example, if a plaintiff is found to be 20 percent responsible for an accident, 20 percent of the recovery for damages is deducted from his award.
The case that led to this latest examination of the contributory negligence controversy involved a Fulton, Md. assistant soccer coach who filed a negligence lawsuit after he was severely injured after swinging from a goal post. The post collapsed on his face. He sued, claiming that the association had failed to inspect the goal post to make sure that it was properly attached to the ground.
The jury concluded that the Soccer Association of Columbia was negligent and that the Soccer Association's negligence caused Coleman's injuries. But, the jury also found that James Coleman was negligent and that his negligence contributed to his own injuries. Because of the contributory negligence finding, Coleman was barred from any recovery.
This case, the court said, presented the same issue that was presented in 1983 in Harrison v. Montgomery County Board of Education -- namely whether the Court of Appeals should get rid of the defense of contributory negligence in certain types of personal injury actions.
"After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison," the court said. As a result, the state's high court upheld contributory negligence and refused to adopt comparative negligence, ruling that such a change was a matter for the General Assembly.
The court pointed out that in the years immediately prior to Harrison, from 1966 to 1982, the Maryland General Assembly had considered twenty-one bills seeking to change the contributory negligence standard. None of the bills had been enacted. The Harrison Court accorded a great deal of weight to the General Assembly's failure to enact any of these bills.
Since the Harrison case, the General Assembly has considered and failed to pass several bills that would abolish or modify the contributory negligence standard. The General Assembly's repeated failure to pass legislation eliminating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence, the Coleman court said. The failure of so many bills is a clear indication of legislative policy at the present time, the court pointed out.
"It is well settled that, where the General Assembly has announced public policy, the Court will decline to enter the public policy debate, even when it is the common law that is at issue and the Court certainly has the authority to change the common law," the court said.
But the decision was not without its detractors. Judge Glenn T. Harrell, Jr. and Chief Judge Robert M. Bell dissented.
"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," Harrell wrote, adding that he hoped that some future court would "relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point."
The dissent also pointed out that, with 46 states employing comparative negligence it is no longer a trend or a doctrine of recent vintage but an established and integral doctrine of the negligence systems of nearly every state in the country and that not a single jurisdiction that eliminated contributory negligence decided to go back to the legal doctrine.
"Maryland is no longer at the crest of a wave of reform - instead, it has been left behind, one of the last bastions of contributory negligence in a world which has discarded it as unjust and outmoded. In my estimation, this qualifies certainly as a significant change warranting reconsideration of Harrison," the dissenters wrote.
Belsky, Weinberg & Horowitz has been fighting for clients who have been the victims of personal injury and negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.