Two Chances to Reform Contributory Negligence Doctrine in Maryland

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.)

Comments

[contrarian]

Good post. I'll offer some different takes:

Contributory negligence doctrine benefits those who injure others at the expense of those who are injured. Since the costs of injuries are pushed onto the injured there is reduced incentive on the part of parties engaged in dangerous activities to make them safer. There is a net societal loss as the level of injuries is higher than it would be if people were forced to bear the cost of their actions.

Contributory negligence in practice becomes no-fault. The premise of no-fault is that you use the roads at your own peril and if you are concerned about risk you can insure yourself against it. The underlying assumption is of rough parity, or specifically, that the only road users are motor vehicles. Those who suffer disproportionately in collisions suffer disproportionately under no-fault or contributory negligence.

Contributory negligence runs counter to general notions of fairness. I think most people would agree the with idea that if two people are both partly to blame for something, they should be held responsible in proportion to their share of the blame.

Finally, I have to quibble with your description of Washington v. Garcias.

In Washington v. Garcias, the court wrote: "Washington, the cyclist] was fully chargeable with the knowledge that when the truck reached M Street on a green light and proceeded into the intersection, it would either go straight ahead or turn onto M Street. The bicyclist, for his own safety, was obliged to pay close attention to the movements of the truck, and to anticipate the possibility that it might turn right, toward the bicycle.
[H]e knew that a right turn was one of three possible directions the truck might take upon reaching the intersection." Washington was found to have contributory negligence for not anticipating that a truck would illegally turn into him.

I added the italics on "for his own safety" because that's where the court reached. Washington v. Garcias created a new duty for operators of bicycles -- and only for operators of bicycles: the duty to anticipate any possible action on the part of a motorist, even an illegal action. This is a duty that is not present anywhere in DC law; it was simply made up out of thin air by the court, as a codification of the societal bias against cyclists, the sentiment that cyclists are second-class users of the roadway, and the feeling that cycling on the roadway is an inherently reckless activity. It actually runs counter to DC law, which states that cyclists have the same rights and duties as operators of vehicles.

[T]

I think Contrarian offers a very astute point, particularly toward the new interpretation (really invention) in regards to DC law.

I think sometimes we box ourselves in by seeking legal reforms. The easiest way to lobby this issue in Maryland is to resurrect the Progressive Auto ordeal from a few weeks ago. It's sad to say that not many folks heed notice of us, partially due to their own bias and partially due to them viewing our mode of transportation as a recreational pasttime, but they did take major notice of the Progessive Auto ordeal. It cost Progressive tons of customers and some MD lawmaker's found it fascinating as well. That's your 'in' on contributory negligence and that's how you attract attention on it. We would be happy beneficiaries of such a change. My two cents.

[Jim T]

@contrarian. Thanks. I think we agree that the problem with the doctrine is greatest when one class is inherently more likely to harm the other, such as the case of bike-car or ped-car crashes.

I agree that contribtuory negligence is a type of no-fault rule, and that it may tend to cause drivers to be less careful than they should be. That's a key problem with that doctrine. I find myself ambivalent about the general doctrine, because there are advantages to a no-fault regime, when all the transactions costs are considered--for cases where there is rough parity, such as driver-driver crashes. The doctrine need not be a type of moral hazard because no-fault insurance raises rates whenever one is in a crash, regardless of who had the greater fault.

Moreover, the doctrine helps us to avoid overcompensating the negligent but sympathetic plaintiff who sues the less negligent defendant with deep pockets. Failure to tell a soccer coach not to swing on a portable goal seems far less negligent than actually swiminging on the goals, but if the jury felt sorry for the coach it might find otherwise.

I don't think we disagree too much on the Washington case. Here I am merely trying to point out that the doctrine is unfair. The ability of courts to surprise everybody with new duties that seem wroong applies to both plaintiffs and defendants. Note, however, that the proposal to shield cyclists complying with vehicle code from contributory negligence, would prevent courts from creating new forms of contributory negligence (and over-rule the Washington case if enacted in DC).

What was shocking about Washington was that the cyclist was contributorily negligent as a matter of law. I doubt that courts will extent that holding to door zones or other cases where riding too far right contributed to the accident. But the fact that in this case it was negligent as a matter of law suggests to me that those other instances would at least be given to a jury to decide.

@T: If only contributory negligence were as unpopular as an insurance company taking the side of the bad driver against the heirs of the deceased. But I think that in Maryland, as elsewhere, most people oppose compensating the victims of their own foolish behavior. I'd put my money on thoughtful judges and legislatures over social media on that one.

[Barry Childress]

In case you are not familiar with the case Jim T referenced here is a brief summary (what I could find via a quick search) ...

Here's a summary of the story. Young woman killed by drunk driver. The drunk only has $25k worth of insurance, obviously not enough. Young woman has $100k of underinsured coverage and makes a claim. Progressive goes to court and seemingly helps the drunk try to prove that the young woman was partially at fault. Outrage ensues.

A couple of things. One: What's not mentioned in the article is that Maryland is a state that adheres to the old contributory negligence doctrine. If it was proven that the woman was only 1% at fault, she would be denied all recovery. Surely if the insurance company had anything to base that on, they would be doing wrong by their shareholders and other policy holders not to pursue that strategy.

Two: The attorney in the article talks about bad faith. I was under the impression that bad faith in insurance law only applied when your insurance company either refuses or does a half assed job of protecting YOU from exposure to personal liability on a claim. This didn't happen here. It's basically a disagreement between the woman and Progressive, so why shouldn't they be able to assert their rights?

At first blush I was outraged at Progressive's conduct, but as sad as this story is, it seems reasonable if they actually thought this woman might have been 1% at fault.
http://boards.straightdope.com/sdmb/showthread.php?t=662372

[Greg]

In Maryland, 70% of civil suits involving a pedestrian and a vehicle the pedestrian is at fault. Recently, as an example, my friend was hit by a truck on my block walking away from a tow truck with flashing sirens. In spite of Maryland's requirement that the driver yield right of way when approaching a vehicle using authorized flashing lights and slow to a prudent speed, he swerved around the truck and struck my friend resulting in medical bills and injuries.

My friend, because he was walking on *my property* but on the right hand side of the road as opposed to the left hand side of the road, was found to be contributory negligent and therefore not entitled to any relief.

Contributory negligence makes a lot of sense when you're talking about someone walking on ice with disregard for their own safety - however to infer that a pedestrian or cyclist needs to hold themselves to a higher standard of vigilance than someone driving a 2000+lbs vehicle is backwards and flies in the face of common sense. People holding hammers need to watch where they swing, I shouldn't need to walk around the edge of my property worrying about vehicles striking me down because I'm on the side of the road where my house is...

[JimT]

@Greg: Your final paragraph is consistent with this thread concerning the problem with contributory negligence when applied to collisions between two inequally-sized bodies.

But I have a few questions for clarification about the case you site, because your friend need not have been contributorily negligent and one wonders about his lawyer. Most important, it sounds like your friend was complying with the law. If he was on your property, then he was clearly not in the roadway or even on the sidewalk. I question the idea that there is a duty to warlk against the flow of traffic when on private property--or even on a paved sidewalk. No law requires one to walk on the left side of a shoulder--the law only applies to the roadway.

So tell me how the lawyer handled that argument? Did he ask for a ruling that there is no such duty" A judge might have been able to hold no such duty as a matter of law.

And even if he was negligent, why was he not saved by the last clear chance rule?

[oboe]

Wow. Didn't realize that "Maryland, Alabama, North Carolina, Virginia, South Dakota and Washington DC" are the only states that operate under contributory negligence standards.

Seriously, WTF?

[JimT]

In the case of South Dakota, the plaintiff's negligence has to be "more than slight". Drivers who stopped at stop signs but misjudged the speed of oncomming traffic have won cases when the vehicle with the right of way was apparently speeding. A few other states have contributory negligence under some circumstances (e.g. malpractice) while Maryland has repealed it in some csaes (e.g. failure to wear a seat belt).

I think it survives in Maryland mainly because few people are clamoring to replace it and the Legislature does not want to enact a law that will be denounced as "antibusiness" unless it gets a more tangible benefit (e.g. cleaning up the Bay, health insurance for Walmart employees...)