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
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