Maryland Medical Malpractice Lawyer Blog
The Maryland Court of Appeals just issued its decision in the Coleman v. Soccer Association of Columbia case regarding whether to abandon the doctrine of contributory negligence (if a plaintiff is the least bit negligent, the plaintiff loses) in favor of the doctrine of comparative negligence (if a plaintiff is negligent, the plaintiff’s recovery is reduced by the percentage of the plaintiff’s negligence). Those on the victims’ side will say that this decision is a refusal to move from an antiquated doctrine to a modern doctrine. Those on the corporate and insurance side will consider this a win.
As set forth in the decision, contributory negligence traces its roots to 1809 in England. Almost all states in the U.S. subsequently adopted the doctrine contributory negligence. But over the years, all but four states and the District of Columbia have adopted comparative negligence. Those states that have abandoned the doctrine of contributory negligence have done so on the basis that is not fair to prevent a plaintiff from recovering when the defendant is negligent and the plaintiff is only 1/10th of 1% negligent.
In the Coleman decision, the Maryland Court of Appeals recognized that it had the authority to change from contributory negligence to comparative negligence since it was that court that originally adopted contributory negligence. However, the court said that for such a change to take place the Maryland legislature should make the change.
Two judges, Bell and Harrell, issued a colorful and strongly worded dissent. They said:
“Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. 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. Accordingly, I dissent.
My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”
The dissenting judges also made a particularly fascinating observation: “As the author of one tort law treatise noted in response to [a previous Maryland decision upholding contributory negligence]” The history [of legislative attempts to abrogate contributory negligence] appears more nearly indicative, itis suggested with respect, of the superior ability of insurers’ lobbyists to influence a committee or its chairman in a non-public decision-making than an entire legislative body in an open vote.” The author goes on to note that, in the Senate’s first opportunity to vote on a comparative negligence bill, it passed 45-1 on the floor before being defeated behind closed doors in the House Judiciary Committee.”
We handle cases like these all of the time in my practice and I frequently am faced with defense claims of contributory negligence. Many times, these defenses can be diffused.
Contact Andrew G. Slutkin with further questions or inquiries at 410-385-2786