Todd Lamb, executive director of Maryland Citizens Against Lawsuit Abuse, and Ellen Valentino write an editorial in the Maryland Daily Record on the apocalypse that would occur if Maryland joined 90% of states in this country and adopted a comparative negligence standard. Essentially, the authors’ argument makes two points: (1) comparative negligence should not be adopted by anyone other than the Maryland legislature and (2) comparative negligence would cause great economic hardship for Maryland.
I understand the authors’ point that any change in the standard should come from the legislature. I think the majority of the Maryland Court of Appeals will agree with the authors on this. On the other hand, as Judge Bell pointed out in commissioning a study on contributory/comparative negligence, Maryland’s contributory negligence rule is a common law rule. Arguably, the legislature’s failure to act is not approbation of contributory negligence. Can the court never change a rule because the legislature has not changed it for them? But I’m getting too far afield… I can see arguments on both sides of this issue.
The idea that Maryland’s economy is going to suffer from comparative negligence is just plain silly. Maryland, Virginia, Washington D.C., Alabama, and North Carolina are the only jurisdictions in the country that have retained contributory negligence. Has any serious economist – which I define for these purposes as someone who has taken an introductory economics course – suggested that these economies are meaningfully stronger and have lower inflation because of contributory negligence? Please.
The idea that someone who is 1% responsible for their injuries should not be able to recover against a negligent party who is 99% responsible for their injuries is really intellectually indefensible. The only good argument for keeping contributory negligence in Maryland is “It has always been that way so why change it?” I don’t agree with this argument. But at least I understand it.
What also drives me nuts is how casual jackpot justice award arguments are with the facts. The authors write:
Consider a New York Times report of a woman who was awarded $14.1 million by a jury several years ago because she was hit by a subway train while attempting to commit suicide by lying on the tracks. Obviously, she contributed to her own injuries.
First of all, it was 9 years ago not several. Here’s the story. But here is the crazy part: it is the only place on the Internet you can find a report of this lawsuit. Take out your Google and look for it yourself. The article does not give a case name, does not provide the names of the parties or a lawyer in the case, nothing. There is no way to fact check it. In fact, no one comments specifically about the case. The only time it gets brought up elsewhere on-line is by tort reform advocates referencing the article. So this verdict happened and no one picked it up? What are the chances? Worse still, even this article states that the woman denied trying to commit suicide. This quote reports it as an agreed upon fact.
Okay, let’s set aside the minor problem of making up facts about a made-up story that happened 9 years ago. But what is the evidence that this verdict would lead to a $14.1 million verdict if it happened in Maryland? We have a cap on non-economic damages in Maryland. How was this verdict broken up?
I agree with Todd Lamb about lawsuit abuse although I suspect our definitions of lawsuit abuse differ. I’m sure he is a smart guy with a lot of ideas about how to improve our justice system. The Swiss cheese-like nature of the facts in this editorial do not reflect this. Mr. Lamb is entitled to his own opinions but he is not entitled to his own facts.