Maryland's highest court upholds contributory negligence

Maryland, DC and Virginia are all contributory negligence states. Under this doctrine, a plaintiff found to be even 1% responsible for a loss is barred from any sort of positive verdict. (see more here). "Most other states allow juries to consider the relative fault of all parties in determining whether, and how much, to award a plaintiff." This is bad for cyclists and pedestrians who are more likely to be plaintiffs than defendants and are unlikely to have no-fault insurance protection.

A case recently came before the courts that might have overturned this doctrine as Jim Titus discussed last summer. As he predicted, the court instead upheld it.

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. 

The Washington Post reports on the verdict

In a 5 to 2 ruling, the Court of Appeals in Annapolis said it has the power to rewrite the rules, which opponents consider harsh and antiquated. But the majority pointed to the General Assembly’s failure to do so as a reason for restraint.

In a 51-page dissent, Judge Glenn T. Harrell Jr. compared the current standard known as contributory negligence to a dinosaur that he said should be rendered extinct with “the force of a modern asteroid strike.”

Harrell, who was joined by recently retired chief judge Robert M. Bell, said the court has the power and the responsibility to depart from its previous 30-year-old ruling. He said Maryland should join 46 other states with systems that reduce a plaintiff’s compensation in proportion to his or her relative fault.

Despite the plaintiff being a bit unsympathetic, he still had a reasonable case

A jury in Coleman’s case found the Soccer Association of Columbia negligent for failing to properly secure the goal. But it also found Coleman partly to blame, prohibiting him from collecting any money to pay for treatment of severe facial fractures he suffered in the 2008 incident.

So now it is left to the legislature to fix this issue.

Over the years, the General Assembly has rejected dozens of bills that would shift to a system of comparative negligence. In his concurring opinion, Greene acknowledged that such a system may be “more equitable,” and he urged the General Assembly to tackle the issue.

Del. Kathleen M. Dumais (D-Montgomery) tried unsuccessfully last session to press for a commission that would have wrestled with the implications of any change. In light of the court’s opinion and specific guidance, she said, there may now be more interest.

Unfortunately, there are some big guns who oppose the change and nothing comparable on the other side.

Business interests, including the U.S. Chamber of Commerce, the American Insurance Association and the American Medical Association, have been successful in Annapolis — as they were in court — in arguing that such a sweeping shift in public policy would increase litigation, insurance rates and taxes.

Comments

[charlie]

The world is bigger than car-bike conflicts.

I'd agree the mid-atlantic is being a bit different on this. And not exactly sure why.

That being said, a more useful approach would be to carve out a exception on traffic accidents involving pedestrians and bikes.

[7]

>> "..a sweeping shift in public policy would increase litigation, insurance rates and taxes."

Can opponents point to this being the case in the 46 states that have comparative negligence standards? How do MD litigation rates or insurance rates (or VA or DC for that matter) compare to other states with different standards? I do note that my car insurance went down when I moved to MD from MA, for whatever that's worth.

[oboe]

Hooray for tort reform!

[washcycle]

charlie, without going too far off track, when I look at the list of organizations supporting the status quo, I'm not encouraged. Basically, it is a list of groups that are likely to be defendants (Businesses, insurance companies and doctors) not a list of people likely to be victims. This lets me know who the winners and losers will be.

The losers will be individuals who are partly (but not entirely) to blame for their injuries. And they'll lose because they aren't easily organized. That doesn't not sound like something Maryland should support.

[JeffB]

Agree with Charlie - the best next step is to find an appealing traffic injury case and use it to convince the legislatures to carve out an exception.

Then we'll only be fighting the insurance industry with, perhaps, the trial lawyers on our side :)

[T]

I think we should switch to a comparative negligence standard, but the way it's written, the Court can't just say it's so without the MGA rewriting the code.

And, I don't think that's going to happen so I think we should push for a caveat to the last chance doctrine. Basically have it codified and used as a mechanism to say that cases of pedestrian or cycling will be treated different because the car has the last chance to maneuver away, stop, downshift, or otherwise avoid the collision AND because we know that the act of that collision is far more damaging to the receipient than to the offending driver (ie, they're driving a several ton vehicle and your 25lb bike is like a blade of grass to an elephant's foot; it doesn't stand a chance.

The existent standard is supported by some industry groups--really it's insurance companies and doctors more so than anywone else, but that doesn't mean it's worthless. Consider that the legalise to date has been built around this standard, if you remove it then you've not leveled the playing field but rather significantly changed it to a lawsuit happy field day. A real change requires a legislative package that addresses a lot of it.

[Smedley Burkhart]

Do I have the last chance when "(Hey) I didn't see you"?

[Jim T]

@T: To some extent the last clear chance rule already gives plaintiff cyclist a way around contrib rule, but only in those cases there truly is a last clear chance. A big problem is that no claims agent will ever provide a claimant with sound legal advice so no claims agent will ever tells cyclist who only wants a bit if money.

So are you arguing for a law that defines last chance as a matter of law when in reality there is none? Eg two vehicles both run stop signs at same time. No real last clear chance. Do you want cyclist to recover in that case?

I think a possible problem with last chance doctrine is need for three separate acts of negligence. Driver who hits negligent cyclist is treated differently from driver who hits contributor only negligent cyclist. That aspect might be more readily curable by changing duties to observe.

Informal comments with chamber suggest. They might be ok with a safe harbor for cyclists complying with transportation code.

[Jim T]

Above I wanted to say that a driver who strikes a contributorily negligent cyclist after driver was already negligent will be subject to last clear chance rule. But driver whose simply commits the last of two negligent acts is not.

So: fail to see cyclist with strobe, cyclist going too fast, left turn into cyclist. Last clear chance and cyclist wins.

Cyclist tailgating a truck, driver left turns after truck into cyclist. Driver negligent but if cyclist was negligent as well for tailgating, then no last clear chance.

[Smedley Burkhart]

As long as this is still alive, I have another naïve question: How hard is it to convince the average suburban juror that merely _riding_ on busy road X fails to meet the reasonable and prudent standard or whatever it is in these cases?

[charlie]

"They might be ok with a safe harbor for cyclists complying with transportation code."

Yeah, that would be fine too.

[just another rider]

haha. Smedley, you stole the words out of my mouth!

Of course, *Everyone Knows* its dangerous to ride on the rode, what was made for cars, because cars are bigger than a bike and will lose when physics makes things real. Why, it's just foolish for someone to cycle in the road! **Bang! Negligent! Next case!**

Wonder if it works for the Sardine Can that cuts off an 18-wheeler?

[just another rider]

JimT,
Cyclist on sidewalk without light? Cyclist riding without reflecto-vest?

Obviously, this doesn't change status in Maryland, but I'd think it a decent time to question what counts as negligent in terms of cycling. In terms for a safe-harbor for complying with code, that'd be nice, but the write up I'd read was that the courts planned to leave it all with the legislature.