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Contributory Negligence Fights Off Extinction Yet Again

Being one of only five States (including the District of Columbia) that still recognizes the affirmative defense of contributory negligence as a complete bar to a tort plaintiff’s recovery in a negligence action, Maryland has seen several attempts to abolish the doctrine come and go, but like Rocky Balboa, every time someone tries to knock it out, contributory negligence keeps getting back to its feet.

The latest round in the contributory negligence fight came in the Court of Special Appeals, where now retired Chief Judge Bell was one of two dissenters to the majority’s decision to allow the long-standing doctrine to remain in full force and effect. Coleman v. Soccer Association of Columbia (July 9, 2013). Prior to hearing Coleman, the court last reviewed whether to abrogate the common law doctrine of contributory negligence in 1983, at a time when many states, mostly through legislation, were abolishing it in favor of some form of comparative negligence model. In 1983, the Court declined to abrogate the contributory negligence doctrine in large part due to its view that the legislation had been introduced many times on the topic, and the legislature refused to abolish it. Thirty years later in Coleman, the majority of the Court of Appeals kept contributory negligence around for basically the same reasons. The court acknowledged that it had the authority to abrogate the doctrine because it was a creation of the judiciary centuries ago, but it declined to do so because of the legislature’s repeated refusal to do so over the years, including as recently as 2007. The majority of the court determined that the numerous failed attempts to abolish contributory negligence in the legislature represented a clear indication of present legislative policy and, given the legislative intent, the majority did not think it was appropriate for the court to enter into the policy-making realm.

Although the majority opinion was fairly succinct and straight forward, the two-judge minority opinion written by Judge Harrell was, in a word, lengthy. Very lengthy. Notwithstanding its breadth, the minority opinion can be summed up by stating that the minority believes that the contributory negligence doctrine is grossly unfair, and they would not let the legislature’s inaction prevent the court from doing what should be done. In a concurring opinion endorsed by three other judges, Judge Green acknowledged that he did not necessarily endorse contributory negligence. For the majority of the court, it was not about whether the court preferred contributory negligence or comparative negligence. Rather, the court’s function is to interpret the law, not to invade the function of the legislature and enact into law “a sweeping revision of an established rule of law,” such as contributory negligence.

Unless the legislature takes up the comparative negligence cause again, it appears as though contributory negligence will stick around a while longer in Maryland. Regardless, the court’s recent decision begs a different question – if comparative negligence replaces contributory negligence, will it matter? Although outcomes of specific cases would certainly change, on the broader scale, one could argue that the tort landscape would not significantly change if a form of comparative negligence was adopted in Maryland. As it currently stands, contributory negligence is rarely a successful basis for summary judgment in Maryland. The appellate courts have stated that the issue of contributory negligence is generally, one of fact for a jury to consider. Even in cases where the issue should be clear enough for a case of contributory negligence to be decided by summary judgment, a lot of Maryland trial judges are simply too hesitant to grant a dispositive motion on that basis. In fact, the Coleman case presents a perfect example of one that should have been disposed of by summary judgment. The plaintiff kicked a soccer ball into a net and when he went to retrieve it jumped up and grabbed the top of the goal, which caused it to fall on top of his face. This is a textbook contributory negligence case where a plaintiff clearly acted unreasonably and his actions, more than anything else, caused his damages. It should have never seen a trial, yet it did. A review of the docket shows that the defendant did file a motion for summary judgment, and it was denied. Presumably, contributory negligence was a ground for the motion.
When a contributory negligence case survives summary judgment, it goes to trial. As the Coleman case shows, juries do sometimes find that a plaintiff was contributorily negligent. Again, however, in my opinion, Mr. Coleman was undeniably the primary author of his own tale. In cases where the issue of contributory negligence is a closer call, juries often develop their own kind of comparative negligence. Even though the contributory negligence doctrine requires a bar to recovery even if the plaintiff is only 1% negligent, the fact is that juries do not apply it so strictly. Jurors often compromise over the issue of primary negligence and contributory negligence but adjusting their verdict to demonstrate that the plaintiff takes some responsibility, but when they believe the primary actor is the defendant, the jury often will make sure the plaintiff receives some damages award. This outcome is essentially a jury-generated comparative negligence outcome.

Finally, there is the issue of settlement. After all, most cases are settled prior to trial. Will the adoption of comparative negligence change the way parties evaluate cases for settlement? When evaluating a case for settlement, if there is a contributory negligence defense, the general evaluation involves the chances of success of the defense versus failure, and one common manner of determining a value is to use percentages. I would think that evaluating a case under comparative negligence principles, which is inherently percentage-based, will often cause the evaluator to arrive at the same number that he/she would have arrived at under a contributory negligence evaluation. While a defense evaluation might no longer include the prospect of complete victory, a plaintiff’s evaluation would take on the added knowledge that a trial recovery would be less than full value on account of a comparative negligence finding. In essence, cases where there is strong evidence that a plaintiff’s own negligence was a significant cause of an accident will likely have low settlement values, regardless of whether the jurisdiction applies comparative negligence or contributory negligence. Likewise, if a defending party is relying on an argument that a plaintiff may have minimally contributed to an accident, the settlement value still would take into account that the case will still go to trial and a jury likely will not care.

In essence, one may argue that all of the debate in Maryland over contributory vs. comparative may be much ado about nothing. However, the plaintiff’s bar and defense organizations show no signs of agreeing with such an argument, and we can expect the debate to resurface in the Maryland legislature soon enough.

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