Maryland Comparative Negligence on the Way?

Certainly, the title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the heart of the matter.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee’s view, the Court could effect that change by Rule, as opposed to judicial decision.

(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; andcoa
(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs’ lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs’ is more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions are going to split off within the interest groups.

Disecting every word, I love how Judge Bell notes that contributory neglience is a common law rule in Maryland. The unspoken implication to me: it is a rule the court can change if it wants to do so.

But it is also worth noting that Judge Bell finds himself in the dissent on a lot of issues before the Maryland Court of Appeals. I believe that at least four of the judges on the court are going to decide to punt this issue to the Maryland legislature, noting the estimated zillion comparative negligence bills that have been introduced over the years.

  • Avenger

    The issue really is one that is appropriate for the legislature to decide, as is the issue of joint and several.

    There really is no good path to justice here. While it doesn’t seem right to have the victim suffer because one of the tort-feasors is insolvent, it also isn’t right to have a party that is deemed 5% culpable to buy the whole of the damages, particularly since a party tagged with such a percentage is one that the jury probably didn’t want to assign blame to at all but got talked into it. If I’m 5% at fault and can be held to pay 100% of the damages, you’ve essentially said “two wrongs make one right” and that never has been and never will be true.

    Perhaps a reasonable compromise would be that any party found responsible for 50%+ of the negligence can be subjected to joint and several
    The Maryland legislature should either do away with both contributory negligence and joint & several or drop the matter entirely.

    The is something wrong with the so-called civil justice system when it can be prevented from effectuating meaningful reform by any single individual or group. The amount of demonstrable fraud that has occurred in asbestos cases suggests that we should give the asbestos trial bar LESS consideration than we would give the average “man on the street”, not pay greater deference

  • Ron
    Excellent post! Maybe I’m seeing this issue from my limited vantage point of doing medical malpractice where the “common law” of contributory negligence is a bit less draconian in its application. That being said, let me wade in on this topic. Our adherence to the “common law” principle has brought about so many unjust results over the decades that it’s simply time for it to go and for MD (and D.C.) to join the 21st Century.

    This to me is an issue that should be dealt with by the judiciary, not the legislature. The latter are obviously not going to change this ridiculous rule of law any time in my lifetime.

    The Court of Appeals should simply deal with this and soon. Adherence to a vestige of centuries ago for the sake of stare decisis is not the rational answer. Apply common sense – let jurors figure out who is responsible for injuries sustained on a “comparative” basis.

    Time to get rid of the old and ring in the “new.” Maybe that could be the New Year’s resolution of the Court of Appeals.

  • Rhode Island has pure Comparative negligence. if someone is 1 percent at fault they are 1 percent liable for damages.

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