By Angela W. Russell, Esq. & Maryan Alexander, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP
Writing for the majority in James K. Coleman v. Soccer Association of Columbia (No. 9, September Term, 2012), Judge John C. Eldridge explained that, even though the court has the authority to abrogate the contributory negligence doctrine, it declined to change the negligence system in Maryland because it is contrary to legislative policy.
Some members of the legal community are pleased with the court’s decision, 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 remains to be seen whether Maryland retains its position on contributory negligence or eventually becomes one of a growing number of states that have adopted some form of comparative fault. For now, contributory negligence remains a viable defense in Maryland.
Both the contributory and comparative negligence doctrines address the apportionment of damages based on the allocation of fault among the parties. The allocation, however, varies significantly depending on which doctrine is applied. Contributory negligence, the doctrine that is currently applied in Maryland and in only three other states (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 percent responsible for causing his or her own injuries.
The more modern comparative negligence doctrine is followed in 46 states. There are three types of comparative fault standards:
•In a pure comparative negligence jurisdiction, a plaintiff’s fault is compared with the defendant’s degree of fault and the plaintiff’s recovery is reduced proportionately based on his or her own degree of fault.
•In jurisdictions where the 50 percent bar rule is applied, the plaintiff will recover nothing if he or she is 50 percent or more at fault.
•In 51 percent bar rule jurisdictions, a plaintiff will recover only if he or she is found to be less than 51 percent at fault.
In April 2012, the Court of Appeals granted certiorari in Coleman, a case that had 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 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 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. 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 who performed those acts.
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 among tortfeasors. Some would argue that to uproot the tort liability system that has been in place for more than 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. From either perspective, 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.
In practice, the strict result of a contributory negligence defense is often tempered by the actions of juries – the chief complaint among those who oppose contributory negligence. 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 is simply not always a reality when a jury doles out justice. In any event, for now the contributory negligence standard has been preserved. It will be interesting to see whether Maryland’s position on contributory negligence remains unchanged or whether it eventually becomes one of the rising number of states that have adopted some form of comparative fault.