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View Diary: Maryland Court of Appeals Upholds Contributory Negligence (Refuses to Allow Comparative Negligence) (15 comments)

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  •  The majority is sometimes wrong (1+ / 0-)
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    hannah

    In this case, I think the majority of the states are wrong, but the majority of the Maryland Court of Appeals is right.

    Every lawyer who has ever tried a negligence case in a contributory negligence jurisdiction (and I've tried a number of them) knows that if a plaintiff's negligence is a really minor cause of the injury, most juries will simply find that the plaintiff wasn't negligent at all, since they know that a finding of contributory negligence means the plaintiff gets nothing.  So the problem isn't the trivially negligent plaintiff getting nothing while the grossly negligent defendant gets off with paying nothing.

    The real question is whether, when both parties are negligent, the plaintiff should get something for his or her injury.  The problem with the comparative negligence rule is that it makes virtually any case where there is some evidence of negligence on the part of both parties into a viable case -- frequently for both parties.  And by doing that, "transaction costs" such as legal fees and expert witness expenses are greatly multiplied.

    Bin Laden is dead. GM and Chrysler are alive.

    by leevank on Tue Jul 09, 2013 at 10:30:11 PM PDT

    •  So, here too, the role of the middleman (0+ / 0-)

      is greatly exaggerated to his advantage.

      We organize governments to deliver services and prevent abuse.

      by hannah on Wed Jul 10, 2013 at 02:34:58 AM PDT

      [ Parent ]

    •  You haven't said which side you represent (0+ / 0-)

      and based on your comment about "transaction costs" it sounds like you have been representing the defendants which means that your bill is being paid by the insurance company, is that correct?  

    •  In smaller cases, the injured party is not (0+ / 0-)

      entitled to a jury.  In those cases, the cases are decided by a judge not a jury.  Judges are well aware of contributory negligence rule and do rule against the injured party based on it.  You can bet that the defense bar relies heavily on it in presenting their case.

      And in larger cases, the injured party may have difficulty obtaining a lawyer as plaintiff's attorneys get paid only if the injured party wins, and many lawyers don't want to take a chance on a case that will require a lot of time and money to try with the chance that they will be nothing.  Now there are some lawyers that will take these cases, but it takes some persistence on the part of the injured party to find them, and many injured people will give us after being told by 2 or 3 lawyers that they are not willing to accept the case.  

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