This week, the Maryland Court of Appeals heard oral arguments on whether to replace the doctrine of contributory negligence with comparative fault in the case of Coleman v. Soccer Association of Columbia. The case involves a volunteer soccer coach who smoked pot before practice, tried to swing on a portable goal, and fell on his face. He sued for damages from the soccer league for failing to warn him about this hazard, but the jury found that he was contributorily negligent, so he could not recover damages.
Observers have been expecting the Court to revisit this question for the last few years, because the Court requested a special report to evaluate the two doctrines. That report, completed last year, did not make specific recommendations; but it provided alot of context that will help the Court regardless of its decision. During the 20th century, 46 states adopted comparative fault, 34 by statute and 12 by court decision, with Alabama, North Carolina, Virginia, DC, and Maryland being the only holdouts.
As we have discussed on this blog many times, the doctrine of contributory negligence has alot of good points, but it is totally unfair to cyclists. Vehicle crashes usually involve at least a bit of neligence by both parties, because a good driver is prepared for others to make mistakes. In Washington v. A & H Garcias Trash Hauling (DC 1990), a cyclist was right-hooked by a truck and the court held that the cyclist was contributorily negligent for riding too far to the right. If you ride in the door zone and get doored, whoever opened that door is at fault, but you should have known this might happen so maybe you would be contributorily negligent. So the doctrine lets drivers off the hook for paying for a cyclist's injuries; but it almost never helps cyclists because negligent cyclists don't cause serious injuries to drivers.
Outside of the cycling context, however, the doctrine can be useful. The typical driver is just as likely to win as lose from this doctrine, so by keeping extra cases out of court and the liability system, insurance costs are less. In Maryland, you don't hear about people slipping on a puddle and then suing the store owner, because people who can't keep their balance in a puddle should not walk through puddles. Many stores in the Washington area let adults shop without removing their inline skates (assuming the adults are being discreet and moving at a walking pace). In New Jersey or Florida, the owners will tell you to take them off.
In this case, Mr. Coleman took a few practice shots, went to retrieve a ball, and swung on the goal, which fell over because it was one of those portable goals that do not have poles sunken into the ground. These practice shots were not really part of his coaching duties, and the goal was neither erected nor used by the soccer league. The parents staked out one field with two goals, which the kids were using. The goal Coleman used was sitting on the field without a mate, when everyone arrived at the field, which was at a junior high school. The defense argues that the court can sidestep the question of contributory negligence by holding that the soccer league has no duty to protect coaches from their own horsing around on goals that the league neither sets up nor uses.
Given the widespread support for the doctrine of contributory negligence in the business community, one would normally assume that the Court would decide that the Legislature is the proper forum for deciding whether to repeal contributory negligence. And this case seems particularly ill-suited for the Court to fundamentally change the tort law. It would be too easy to parody the idea that Maryland now wants to award damages to people who smoke pot and swing on flimsy structures. If the Court of Appeals is going to award damages to contributorily negligent plaintiffs, one would think they would start with a plaintiff whose negligence seemed more honorable, such as a cyclist riding too far to the right or an assertive pedestrian struck in the crosswalk by a driver who fails to yield.
Meanwhile, some advocates are talking to Legislators about limiting the reach of the doctrine of contributory negligence when a bike and a motor vehicle crash. For example, a bill might modify the statute's definition of the duty of care so that a cyclist who complies with the transportation article is not contributorily negligent. I'm not sure whether these initiatives will be put on hold pending the Court's decision in Coleman. Interestingly, one of the arguments that the business community makes against a judicial rejection of contributory negligence is that a number of transportation statutes define circumstances where the doctrine does not apply. A limited bill to protect cyclists from the injustices of the doctrine would be consistent with that approach.
(Jim Titus is a member of the Board of Directors of WABA and represents Prince Georges County on the Maryland Bicycle and Pedestrian Advisory Committee (MBPAC). The opinions expressed here do not necessarily represent the views of either WABA or MBPAC.)