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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

Fault Allocation in Maryland Remains Undisturbed

Angela W. RussellMaryan AlexanderAngela W. Russell, Maryan Alexander, and Lauren Marks
Earlier this month, the Court of Appeals upheld the long-standing contributory negligence doctrine rather than abandoning it for some form of the comparative negligence doctrine.

Writing for the majority in James K. Coleman v. Soccer Association of Columbia, et al. (No. 9, September Term, 2012), Judge John C. Eldridge explains that, even though the Court has the authority to abrogate the contributory negligence doctrine, it is improper for the Court to change the negligence system in Maryland because it is contrary to legislative policy. Over the years, there have been several bills proposed to the legislature that are aimed at abolishing the contributory negligence doctrine, all of which have been rejected by the General Assembly. The Court of Appeals interprets the failure of those bills as suggestive of a legislative policy to retain the contributory negligence doctrine in Maryland. Even though the Court has authority to change the common law, the majority quotes Chief Judge Bell, who incidentally dissented in the Coleman opinion, to point out that the Court should not enter the public debate even when the issue involves a matter of common law. The Court held that the common law should not be disturbed if it is contrary to the public policy of the State set forth by the General Assembly.

Judge Harrell dissented and Chief Judge Bell joined in the dissent. The dissent argues that contributory negligence is antiquated and that the early justifications for the doctrine are no longer compatible with the values of modern-day society. When first adopted, the contributory negligence was justified as a means to protect newly developing industry against the possible windfalls awarded by juries to plaintiffs. According to the dissent, the protection of industry at the expense of injured plaintiffs is an out-dated justification that defies notions of fundamental fairness. Justice requires the allocation of liability amongst everyone at fault. The dissent points to the trend across the United States in abandoning the contributory negligence doctrine to support a change in Maryland. The dissent advocates for the adoption of pure comparative negligence to be applied prospectively in negligence actions only, and not to strict liability and intentional tort claims.

Both the contributory and comparative negligence doctrines address the apportionment of damages based on the allocation of fault amongst the parties. The allocation, however, varies significantly depending on which doctrine is applied. Contributory negligence, the doctrine which is currently applied in Maryland and in only four other states, including Alabama, North Carolina, Virginia, and the District of Columbia, is an affirmative defense rooted in common law that is available to any party in a wrongful death, personal injury, or property action. Under the contributory negligence doctrine, an injured party is precluded from recovering any damages from a negligent defendant if the injured party’s actions are a contributing factor in causing the injury — even if the injured party is only 1% responsible for causing his or her own injuries.1 The contributory negligence doctrine was first adopted by the Maryland Court of Appeals in Irwin v. Sprigg, an 1847 decision.2 Several bills have been introduced in the Maryland General Assembly to repudiate the doctrine of contributory negligence and to replace it with a comparative negligence system, but all initiatives for this change have failed.

The more modern comparative negligence doctrine is followed in forty-six states. There are three types of comparative fault standards: pure comparative fault,3 modified comparative fault with a 50% bar,4 and modified comparative fault with a 51% bar.5 In a pure comparative negligence jurisdiction, a plaintiff’s fault is compared to the defendant’s degree of fault and the plaintiff’s recovery is reduced proportionately based on his or her own degree of fault. For example, in a pure comparative negligence jurisdiction, if a jury finds that the plaintiff is 5% at fault and the defendant is 95% at fault, the plaintiff’s recovery is reduced by 5% and the plaintiff will recover 95% of his or her damages from the defendant. In jurisdictions where the 50% bar rule is applied, the plaintiff will recover nothing if he or she is 50% or more at fault. In 51% bar rule jurisdictions, a plaintiff will recover only if he or she is found to be less than 51% at fault.

In April of 2011, the Standing Committee on Rules of Practice and Procedure, in response to a request for information and advice from the Chief Judge of the Maryland Court of Appeals, issued a report indicating that, to the extent that the contributory negligence doctrine is a common law doctrine, it can be changed by judicial decision, as has been done in several other States, but that it cannot be changed by the Court’s judicial rulemaking ability. The Court’s rulemaking powers pursuant to Article IV, §18(a) of the Maryland Constitution are limited to matters affecting practice and procedure in Maryland courts and judicial administration. The contributory and comparative negligence doctrines are matters of substantive law that exceed the Court’s rulemaking powers. In April of 2012, a year after the Standing Committee issued its’ report, the Court of Appeals granted certiorari in James K. Coleman v. Soccer Association of Columbia, et al. (No. 9, September Term, 2012), a case which resurfaced the heated debate over whether to change the negligence system in Maryland by ameliorating or repudiating the contributory negligence doctrine.

In that case, James Coleman, an assistant soccer coach, jumped up and grabbed the crossbar of an unanchored soccer goal, which caused the soccer goal to tip over onto Coleman’s face and caused a facial fracture necessitating the installation of titanium plates. While being treated at the hospital, Coleman admitted that he had smoked marijuana on the day of the accident. A jury in the Circuit Court for Howard County found that the soccer association was negligent in failing to properly anchor the soccer goal, but that Coleman was barred from any recovery because he was contributorily negligent in causing his own injuries. In consideration of the potential broader implications of the Coleman decision, including its effect on the outcome of litigants claims and the potential larger scale economic implications on the region, the Court of Appeals reviewed briefs filed by both parties in the Coleman case, as well as “friend of the court” briefs from interested groups, such as the American Tort Reform Association, U.S. Chamber of Commerce, Coalition for Litigation Justice, Inc., American Insurance Association and the American Medical Association, to name a few.

Coleman, along with other proponents of changing the current contributory negligence standard, argued that the doctrine is unjust and antiquated. Coleman, in his appellate brief, cited legal scholar, Professor William L. Prosser, a critic of the contributory negligence, for his opinion that the contributory negligence doctrine allocates the entire loss onto the plaintiff, who is least able to bear it and who is often less at fault, while the defendant gets off unscathed. They argued that barring Coleman from recovering any damages leaves no incentive for the defendant to correct its own negligent conduct and leaves Coleman with no compensation for his medical bills. They further argued that the doctrine undermines the main purposes of the justice system – to deter negligent acts by assigning liability to those that performed those acts.6

Those who advocated for the preservation of the contributory negligence standard pointed out that abandoning the doctrine would upset other aspects of the State’s tort law system, including the application of joint and several liability, the assumption of the risk doctrine, and contribution amongst tortfeasors. They argued that it is the General Assembly that should implement any changes to the State’s negligence system, particularly where there have been no significant events that require any change. They further noted that all initiatives to bring about change to the current system have failed with the General Assembly, the people’s representative, and that the judiciary should not interfere. They advised that changing to a comparative fault system would lead to (1) an increase in insurance premiums, including the cost of automobile insurance, general liability, and medical malpractice insurance costs; and (2) cause an increase in litigation and associated costs to individuals, businesses, and local governments, i.e. require the hiring of additional State personnel to handle the increased litigation in the courts.7

Whatever side of the debate you agree with, it is undeniable that changing the tort liability system is a massive undertaking that requires careful consideration of the implications on Maryland, its’ citizens, small businesses, and the State’s overall economic climate. To uproot the tort liability system that has been in place for over a century brings with it much uncertainty and could threaten Maryland’s economic edge. A contributory negligence standard arguably helps Maryland maintain its economic and business competitiveness. Moving away from contributory negligence could increase litigation and its associated costs.

The Maryland Court of Appeals has determined that any change to the negligence system is best delegated to the legislature. It is the legislature that is best equipped, through its committees and public hearings, to study the effects of a tort liability system change, to gauge and factor public opinions on these issues, and to make necessary changes, if any. The judiciary has not been afforded with the far-reaching rule making powers necessary to effectuate the type of sweeping change to the tort liability system that a modification in the law on contributory negligence would bring. According to the research conducted by the Standing Committee, thirty-three States that have switched from contributory negligence to some type of comparative negligence system have done so by statute. Only twelve States have made the transition through judicial decision. If Maryland were to transition to a comparative fault system, several statutory provisions, i.e. joint and several liability and contribution amongst joint tortfeasors, would also need to be changed, along with many statutes that refer to or hinge on contributory negligence. The judiciary is simply unable to repeal or amend these statutes, hence, the Court has agreed that task is best left for the legislature to handle.

In practice, the strict result of a contributory negligence defense — the chief complaint amongst those who oppose contributory negligence — is often tempered by the actions of juries. Despite evidence to support a finding of contributory negligence and a jury instruction on contributory negligence, juries are sometimes reluctant to allow the defendant to get off “scot free” and instead will award the plaintiff some reduced amount of damages to account for the plaintiff’s degree of fault. In effect juries, in cases where they deem it appropriate, have been known to apply what is akin to a comparative negligence standard, despite being in a contributory negligence jurisdiction and irrespective of Maryland law. The injustice complained of by those who seek a change in Maryland’s tort system simply is not always reality when a jury doles out justice.

With the court’s recent decision some members of the legal community are pleased, while others remain dissatisfied. Although the contributory negligence debate has been put to rest for the time being, the direction of Maryland’s tort liability system is regularly debated in the legal community, and the initiative to abrogate the contributory negligence doctrine may well resurface. It will be interesting to see whether Maryland’s position on contributory negligence remains unchanged or whether it eventually becomes one of the growing number of states who have adopted some form of comparative fault. For now, contributory negligence remains a viable defense in Maryland.

Angela Russell is the regional managing partner of Wilson Elser’s Baltimore office.. She has significant trial experience and has tried cases across the state of Maryland., in the District of Columbia and Minnesota. Her practice encompasses the defense of professional liability matters, including medical malpractice and legal malpractice actions as well as claims against agents, brokers and other professionals. Angela also regularly handles catastrophic general casualty matters.

Maryan Alexander is an associate at Wilson Elser Moskowitz Edelman & Dicker LLP.

Lauren Marks is a law clerk at Wilson Elser Moskowitz Edelman & Dicker LLP.


1See, Board of County Commissioners of Garrett County v. Bell Atlantic, 346 Md. 160 (1997).

2 6 Gill 200 (1847).

3 The pure comparative fault is recognized in the following thirteen states: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.

4 Twelve states apply the 50% bar rule, including Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia.

5 The following twenty-one states recognizes the 51% bar rule: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming.

6 William L. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 469 (1953).

7 Testimony of State Treasurer Nancy K. Kopp before the Senate Jud. Proc. Comm., SB 267, 2007 Session (March 6, 2007).

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