Gross Negligence Standard for Homeowners Defending Their Homes

Guy breaks into your house. Your are terrified that harm will come to you, your spouse or your children. Yet something holds you back from taking decisive action to protect your family.. the threat of a civil lawsuit by the burglar.

To stop this insanity, House Bill 207 has been introduced by House Delegate William J. Frank from Baltimore County, to raise the negligence bar for people who use force against a home or office burglar to make them immune from civil liability unless they acted “with malice or gross negligence.”burglar
Naturally, Maryland courts are clogged with frivolous lawsuits by personal injury lawyers representing criminals who were injured breaking into homes of the innocent. Just ask John H. Josselyn who is with the Associated Gun Clubs of Baltimore:

Far too many attorneys are willing to initiate a civil action on behalf of criminals who allege that the victim, who was acting legally in self-defense, did something that violated the rights of the attacker. Defending a civil action, even when it is a frivolous lawsuit, involves great expense.

Let’s take a breath and break this quote down and get our arms around whether there is even a portion of it that is not demonstrably false on its face.

Let’s start with the first four words: “Far too many lawyers….” Really? Exactly how many are there? How many lawsuits have been filed in Maryland over the last 10 years by criminals injured by homeowners defending their own home? My question to Mr. Josselyn is what information did you have at your disposal when you gave what apparently is a sworn statement? Who are these lawyers and where were these lawsuits filed? Upon what were you basing this information you passed along to the Maryland House of Delegates that went beyond, “Yeah, that sounds like it is probably right.”

Then Mr. Josselyn says it often causes the innocent victim great expense even if the lawsuit is frivolous. I can’t recall any, but I’m sure over the history of time a frivolous lawsuit has been filed against an innocent homeowner properly defending their personal property. But I’m not willing to concede that the homeowner actually bore any expense. Most likely, in the one in a million times this happens and there is a lawyer involved, there would be insurance coverage to defend the claim. Lawyers sue uninsured renters about as often as you can expect Tiger Woods to host “The View.” Please trust me: more money is being spent by Marylanders on House Bill 207 then has ever been spent out-of-pocket by a Maryland resident defending a lawsuit filed by a lawyer against someone without insurance on behalf of a burglar.

Moreover, can someone compile a list of people around the country in the last 10 years who failed to defend themselves properly against the fear of an intruder because of a lawsuit. Couldn’t you count them on your hand? Aren’t these same people that can’t fill up your entire hand also certifiably insane?

Here’s what makes House Bill 207 even more inane: if we are trying to protect against frivolous lawsuits, are these insane personal injury lawyers going to come to their senses and not file a frivolous lawsuit because we now have a gross negligence standard instead of pure negligence?

But let’s give credit where credit is due. This bill is pure political genius. Who is for criminals? Can I get a show of hands? Okay, nothing, how about innocent homeowners? Great, everyone’s hand is up. Now, we just need everyone to stop there and put your critical thinking skills aside. Now, everyone who picks the criminals over the good guys must be the bad guys.

The Daily Record story on this bill is titled, “Plaintiffs’ bar opposes use of force homeowner immunity bill.” Well played, Delegate Frank and friends. Well played. That’s the spin you want: personal injury lawyers are in favor of criminals because they want to file civil suits on their behalf. But the article indirectly underscores this false premise by pointing out that the Maryland State Bar Association, which includes all lawyers, also opposes this bill. It is not just trial lawyers.

If House Bill 207 becomes law, it will have no real impact on lawyers, burglars, or homeowners who are all going to do pretty much the same thing with or without a gross negligence standard and any conflicts between the two – except in very unusual and rare circumstances – will play out the same way. So beyond the “every useless law on the books is a bad law” and “gee, maybe we should focus on getting people jobs instead of scoring political points” sense, this bill is harmless.

But this bill has a larger purpose in the big picture. On the television show Lost, James Sawyer called it the Long Con. Maryland insurance companies want Maryland legislators to put on training wheels on the idea of immunities and heightened negligence standards. The more practice legislatures have a changing fundamental negligence law, the more comfortable they will get. Pick off a few immunities here, add some heightened negligence standards there, and then the room is warmed up to apply these same principles in car accident, product liability and medical malpractice cases in Maryland. Insurance companies, give them credit, have the patience and fortitude to wait out the Long Con. Which is why advocates for victims and consumers need to fight these otherwise nonsensical skirmishes.

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