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The Maryland Court of Appeals has upheld contributory negligence.   Contributory negligence is a legal doctrine which totally bars an injured person from recovering in a tort action if the injured person is partially at fault.  This bar applies even if the injured party is a small percentage at fault for the injury.   Insurance companies love contributory negligence because it allows them to get out of paying money to injured parties if they can prove contributory negligence.  

Two judges on the Maryland Court of Appeals favored discarding the doctrine of contributory negligence in favor of comparative negligence.

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.

In upholding contributory negligence, the Maryland Court of Appeals indicated that it was up to the Maryland legislature to decide whether to keep contributory negligence or to adopt a standard of comparative negligence.

It is not our task to invade the province of the General Assembly and enact into law a sweeping revision,” according to the concurring opinion of Judge Clayton Greene Jr., who was joined by three colleagues.

Previous attempts to change this in the legislature have failed, most likely due to the strength of the insurance lobby.

The Maryland Court of Appeals is the highest Court in the State of Maryland.   So its decision is final.

Maryland has in recent years enacted progressive legislation such as a gay marriage, the Maryland DREAM Act, and the assault weapons ban.    It would be nice to see our elected officials in Annapolis stand up to the insurance company lobby and join 46 other states who have rejected to the doctrine of contributory negligence.  

Originally posted to night cat on Tue Jul 09, 2013 at 08:07 PM PDT.

Also republished by Maryland Kos.


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Comment Preferences

  •  The Legislators need to do their job. n/t (5+ / 0-)

    Never argue with an idiot. They will drag you down to their level and beat you with experience.

    by thestructureguy on Tue Jul 09, 2013 at 08:13:52 PM PDT

    •  Oh hey, they can not even sort out the (0+ / 0-)

      Pit Bull decision, wherein God ... I mean, judges, decreed that they understand dog genetics better than geneticists and behavior better than dog behaviorists.

      Maryland legislators aren't as wacky as the Texans, but we still have clown-car gummint here.

      Thump! Bang. Whack-boing. It's dub!

      by dadadata on Wed Jul 10, 2013 at 02:46:21 AM PDT

      [ Parent ]

  •  Thanks - I learned something. Much obliged. nt (1+ / 0-)
    Recommended by:
    Villanova Rhodes

    We all understand that freedom isn't free. What Romney and Ryan don't understand is that neither is opportunity. We have to invest in it.
    Julian Castro, DNC 4 Sept 2012

    by pixxer on Tue Jul 09, 2013 at 09:15:16 PM PDT

  •  I had no idea MD was stuck in the 19th century (1+ / 0-)
    Recommended by:
    Villanova Rhodes

    I thought it was pretty much just Wyoming.

    Ok, so I read the polls.

    by andgarden on Tue Jul 09, 2013 at 09:51:40 PM PDT

  •  Before I went to law school, a lawyer (4+ / 0-)

    I was walking with in Maryland yanked me back into a crosswalk when I started to take a shortcut, saying "do the words 'contributory negligence' ring a bell?"

    They didn't, but I never forgot them after that.

    Interesting info -- time for trial lawyers to pony up some lobbying money?

  •  The majority is sometimes wrong (1+ / 0-)
    Recommended by:

    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.  

  •  such a tricky subject, but it is the essence of (0+ / 0-)

    a trial I was on a jury for. It's easier to see how this works with an example:

      One lovely autumn day, a young man on his way to work decides instead to play hookey and go fishing. Intending to get a coffee and then call in sick, he instead sees the line at the counter and in his sudden hurry heads for the bathroom instead, striding right past the yellow wet floor sign he saw out of the corner of his eye but didn't register, and pushing right through the door with the handwritten paper note at eye-level on it saying it had just been cleaned and was still wet.
         His worn out boots hit the puddle on the floor and he did the only thing possible which was to grab the faucet, which broke off in his hand as his momentum threw him against the toilet, neatly breaking the middle of his spine. Luckily it was so neatly that he survived and is not paralyzed or anything. He was out of work for a year but was now walking fine and looking for work.

         At the time that it happened, the counter-person rushed over and said that the restaurant would pay his bills, just be sure to be seen right away, and he drove himself to the emergency room. It turned out to be serious after all, and after that year in bed he had no money but had had a long time to think about what to do. [At the time this whole thing happened, the restaurant was in the middle of changing hands, and by the time the plaintiff sued he was dealing with a different entity too- their place but not 'their' fault.]

         The first day of the trial I thought it was absolutely ridiculous that the defense lawyer for the restaurant brought out poster-sized pictures of the man's last two year's tax returns before his fall. Why are we wasting our time with this? I wondered. This kid wasn't making any money as a part-time carpenter's assistant. Who cares how much he paid in taxes?
         By the end it had become very clear that the young man should have jumped on the original offer and had his ER bills and maybe some kind of PT paid for too right away, but he didn't. He all of a sudden held out for door number two and wanted "lost wages" for the year that he 'couldn't work' because there were days when he "just couldn't get out of bed."
         Well we all had a lot of sympathy for that. Then came the day when his physical therapist came to testify about why he couldn't get out of bed. This man had a lovely, full-figured, fashion-conscious, red-headed ex-wife and an 18-month old baby sitting in the back of the court room. The therapist testified that sometimes "he needed so much therapy that I had to stay overnight." The thing is, when the therapist made her entrance and walked to the stand it was momentarily confusing because she was a lovely, full-figured, fashion-conscious, red-headed individual who was his ex-wife's doppelganger except minus the baby.

    Now I didn't just tell that to tell my court story. the case here was this: The judge instructed us that it was all or nothing. If it was the restaurant's fault- they paid it all, including the wildly inflated earnings figure dreamed up by the wannabe carpenter. If it was the plaintiff's own fault at all he got nothing. We were not allowed to say it was 80/20 or 50/50 or any percentage. Our big debate was about how clearly the yellow sign related to the floor in the bathroom if the sign was in the lobby. Did the restaurant clearly mark it was wet (I said yes but others quibbled- a lot.) We eventually decided that the young man was a victim of creating his own circumstances and if he'd just gone to work that day all would have been well.
         But without skillful lawyering (this is a very small town) which the restaurant got, the initial offer from the clerk who had no authority might have stood and they- or their insurance company- might have had to pay the guy for his fall.

       But  it took a whole week of actually trying it out to see for sure that yes, this plaintiff was trying to skim and scam instead of work for a living.

    Meanwhile, the judge said we could not divide blame by the law as it was written, but if we thought that the law was written so badly that it just couldn't or shouldn't apply to any real case including this one, then we, as a jury, could nullify the law. I know that's another whole can of worms but it was one of our choices as instructed.

    We decided that, unfortunate as it was, this was not a good enough case to use to change the law with, and that it was going to have to be up to the legislature. Our plaintiff got what he deserved, unfortunately for him.

    We are all pupils in the eyes of God.

    by nuclear winter solstice on Wed Jul 10, 2013 at 06:22:26 AM PDT

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