Maryland is one of only five (5) states in the union that still adheres to the doctrine of pure contributory negligence, meaning that if a plaintiff contributes to his or her own injuries in any way, even just one percent (1%), that plaintiff is barred from any recovery. This has been so since the doctrine’s adoption by the Court of Appeals in the 1847 case of Irwin v. Sprigg, 6 Gill 200 (Md. 1847). The other states are Virginia, Alabama, North Carolina and the District of Columbia (technically not a state). Most states practice some form of comparative negligence, where a plaintiff’s award is reduced proportionally by the amount of his or her own contributory negligence, which is therefore not an outright bar to recovery.
After a thirty-year period of virtual silence on the issue, the Court of Appeals, Maryland’s highest court, recently issued an opinion in the case of Coleman v. Soccer Ass'n of Columbia, 2013 Md. LEXIS 460 (Md. July 9, 2013), which reexamines the doctrine of contributory negligence. A copy of that opinion can be found at the following web address: http://www.mdcourts.gov/appellate/coa/2013/9a12.pdf. In a 5-2 decision, the Court declined to judicially abrogate the common law doctrine of contributory negligence, reflecting a desire to leave fundamental policy changes to the legislature. Writing for the Court, Judge Eldrige summarized this desire in his opening paragraph, stating:
Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide “whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place as the rule governing trial of negligence actions in this State.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in Harrison, 295 Md. at 463, 456 A.2d at 905, declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.”
The petitioner in the case at bar presents the same issue that was presented in Harrison, namely whether this Court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison.
The case arose when James Kyle Coleman, a 20-year-old volunteer assistant soccer coach, was leading a practice of youth soccer players who were participating in the Soccer Association of Columbia (the “Association”). At one point during the practice, Coleman leapt up and grabbed the crossbar of a goal, which, unfortunately, was unanchored. Coleman fell backwards and pulled the crossbar down on him, suffering severe injuries to his face.
Coleman sued the Association for negligence in the Circuit Court for Howard County, Maryland. The Association asserted contributory negligence as a defense. Despite Coleman’s proffer of comparative negligence instructions, the court instructed the jury on contributory negligence. The jury found the Association to be negligent and that their negligence was a proximate cause of Coleman’s injuries; however, the jury also found that Coleman was also negligent and that his negligence contributed to his injuries, barring his claims as a matter of law. Coleman appealed.
Before oral argument could be heard in the Court of Special Appeals, Maryland’s intermediate appellate court, the Court of Appeals, Maryland’s highest court, granted certiorari to consider the sole issue Coleman raised on appeal, namely, whether contributory negligence should remain the common law standard governing negligence cases in Maryland.
In the majority opinion, the Court of Appeals reexamined its decision in Harrison v. Montgomery County Board of Education, which reaffirmed the Court’s adherence to the contributory negligence standard thirty (30) years before Coleman was considered. The Harrison court recognized its ability to change unsound and unsuitable common law rules, but expressed reluctance to change a rule that would be contrary to public policy. The Harrison court’s decision not to abrogate the contributory negligence standard was attributed to its recognition that the Maryland General Assembly had considered, but failed to enact, over twenty (20) bills that would have altered the standard.
Turning to the interim between Harrison and Coleman, the Court of Appeals acknowledged its power to revise common law doctrine, but also noted the Maryland General Assembly’s continued failure to pass legislation that would alter or abolish contributory negligence. Although the court recognized that contributory negligence is widely criticized and has been largely abandoned by other jurisdictions, the court considered the inaction by the state legislature to be very strong evidence of public policy in support of retaining the contributory negligence standard. As such, the Court of Appeals declined to abrogate Maryland’s 165-year-old common law contributory negligence standard.
Judge Greene authored a concurring opinion joined by Judges Battaglia, McDonald, and Raker. Judge Greene’s concurrence admitted that a system of comparative negligence would be more equitable to the determination of liability, but that implementation of such a system would be inappropriate by the court and better suited for the Maryland General Assembly.
In a dissent written by Judge Harrell and joined by Chief Judge Bell, the doctrine of contributory negligence was likened to an extinct dinosaur, stating:
Paleontologists and geologists inform us that Earth's Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.
My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.
The dissent argued that the Court of Appeals is not so bound by common law precedent as to prevent the judicial abrogation of common law rules that are widely disfavored, despite long-term legislative inaction on an issue with important policy considerations. The dissent further advocated for the prospective application of a pure comparative fault system, in which damages are apportioned among the parties by the percentage that each party contributed to the injury.
Although the debate over this issue continues, the Coleman opinion makes it very clear that the appellate courts of Maryland will not be picking a side in that fight, leaving that to the Maryland legislature.
Article Contributed by James A. Buck