Maryland’s Highest Court Declines to Abrogate Contributory Negligence, Punts to Legislature

       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

Maryland May Require Mandatory Continuing Legal Education

Maryland is one of only five states that does not have a continuing legal education (CLE) requirement.  However, this may soon change.  In 2010, the Professionalism Commission, now called the Maryland Professionalism Center Inc., created by the Court of Appeals and headed by the Judge Lynne A. Battaglia, submitted its proposal for CLE.  That proposal was set to take effect on January 1, 2011; however, the Court of Appeals has not yet approved it.  Judge Battaglia would like Chief Judge Robert M. Bell’s successor to “be part of the decision.”  Chief Judge Bell retired on July 6, 2013, his 70^th birthday, in compliance with the mandatory retirement age for judges in Maryland.

            The issue of mandatory CLE has been debated since the mid-1970s, but has yet to succeed.  Mandatory CLE has both supporters and opposition.  The Maryland Professionalism Center, proposes that attorneys licensed in Maryland should complete a minimum of 10 CLE hours every year.  Attorney Paul Mark Sandler of Shapiro Sher Guinot & Sandler, speaking in support of mandatory CLE stated that CLE “is not a burden.”  Both Glenn M. Grossman, bar counsel for the Maryland Attorney Grievance Commission and Prince George’s County Circuit Court Judge Julia B. Weatherly support CLE.  However, the Maryland State Bar Association (MSBA) opposes mandatory CLE.  Attorney Peter Makuski of Goozman, Bernstein & Markuski, speaking on behalf of the MSBA cited to the lack of evidence that mandatory CLE will result in fewer attorney grievances and the added expense to attorneys, particularly new attorneys, of paying for mandatory CLE. 

            Only time will tell whether Maryland will join the majority of the states in requiring CLE. 

Supreme Court Rules on Authority of Arbitrators

On June 10, 2013, in a unanimous decision, the United States Supreme Court in Oxford Health Plans LLC v. Sutter, held that as long as an arbitrator is arguably construing the contract, a determination by that arbitrator that the parties to an arbitration agreement intended to authorize class-wide arbitration survives judicial review under section 10(a)(4) of the Federal Arbitration Act (FAA). 

            This case arises out of a dispute over a contract entered into between John Sutter, a pediatrician, and Oxford Health Plans (Oxford), a health insurance company.  Pursuant to that contract Sutter was to provide medical care to individuals within Oxford’s network, and, in turn, Oxford was to pay Sutter for those services at prescribed rates.  The contract included a clause requiring arbitration of claims and prohibiting any “civil action concerning any dispute.”   The contract was silent as to whether class-wide arbitration was permitted. 

In 2002, Sutter filed a complaint against Oxford in New Jersey Superior Court on behalf of himself and a proposed class of other physicians who had similar contracts with Oxford alleging that Oxford was in breach of its provider agreements with class members in regard to payment of claims, Sutter also alleged other violations of state law.  In reliance on the arbitration clause in the contract, Oxford moved to compel arbitration.  The parties agreed to allow the arbitrator to determine whether the agreement allowed for class arbitration.  In 2003, the arbitrator determined that the parties' agreement authorized class action arbitration.   In 2005, Oxford filed a motion in federal court to vacate the arbitrator’s determination.  The District Court denied Oxford’s motion.   In 2007, the Court of Appeals for the Third Circuit affirmed.  

In 2010, the Supreme Court, in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”  When Oxford requested that the arbitrator reconsider its determination in light of the Supreme Court’s decision in Stolt-Nielsen, the arbitrator issued a new opinion.  In that opinion, the arbitrator found that Stolt-Nielsen had no effect because the agreement at issue here between Sutter and Oxford authorized class arbitration and unlike in Stolt-Nielsen the parties here were disputing the meaning of their contract and, thus, his role as arbitrator was to construe the arbitration clause “in the ordinary way to glean the parties’ intent.”  In so doing, the arbitrator  “found that the arbitration clause unambiguously evinced an intention to allow class arbitration.”

Oxford then returned to federal court, the District Court again denied its motion, and the Court of Appeals for the Third Circuit again affirmed.  The Supreme Court granted certiorari to address the circuit split over whether section 10(a)(4) of the FAA allows a court to vacate an arbitration award.  Ultimately, the Supreme Court affirmed the Court of Appeals.  Under the Supreme Court’s holding in this case, when contract disputes arise between parties that have a contract with an arbitration agreement, an arbitrator, not the court, will interpret and decide the intent of that agreement. 

            Also, on June 10, 2013, the Supreme Court granted certiorari in BG Group PLC v. Republic of Argentina.  This case arises out of an arbitration award obtained by the BG Group PLC, a British investment company, against Argentina, stemming from Argentina’s 2001 economic crises.  An arbitrator with the United Nations Commission on International Trade Law issued the award in BG Group’s favor and the United States Court of Appeals for the District of Columbia Circuit vacated the $185 million award obtained by BG Group PLC.  The decision was vacated on grounds that as a precondition of arbitration, BG Group PLC and Argentina were required to have aggrieved investors first bring a claim in a court in which the investment was made 18 months before initiating arbitration.  The Supreme Court will be addressing whether in disputes such as this, involving multi-staged dispute resolution processes, if a court or an arbitrator should determine when the pre-conditions of arbitration are satisfied. 

Maryland Courts Employ a Balancing Test When Deciding Motions to Transfer Venue

           The Court of Special Appeals recently reviewed various factors to consider when determining the appropriate forum for pending matters. Appellants Tracy Scott and her minor son, Charlie Scott appealed the judgment granting transfer of their claim from the Circuit Court for Baltimore City to the Circuit Court for Calvert County under the theory of forum non conveniens.  The Court of Special Appeals held that the transfer was improper, and reversed and remanded the case to the forum that was originally selected by the plaintiffs. 

            Appellants Tracy Scott and Charlie Scott filed suit in Baltimore City Circuit Court alleging negligence on the part of Raja I. Hawit, M.D., Johns Hopkins Hospital and Johns Hopkins Hospital employees Carolyn J. Ogborn, M.D. and Tyler Reimschisel, M.D in a medical malpractice action.  The claims against Ogborn and Reimschisel were subsequently dismissed.  Dr. Hawit is a pediatrician that provided medical care to Charlie as a newborn and years thereafter at Calvert Memorial Hospital.  Mr. Hawit’s practice is located is Hungtingtown, Calvert County.  Johns Hopkins Hospital’s principal place of business is in Baltimore City.   

            In the Complaint, Appellants alleged that Dr. Hawit diagnosed Charlie Scott with jaundice and ordered tests for bilirubin on June 3, 2001, the day after Charlie’s birth.  The test results placed Charlie in the “medium to high risk for developing kernicterus” category.   Complications such as brain damage and hearing loss may occur when extremely high levels of bilirubin are found in the body.   Charlie was tested again the next day and results indicated that he was placed in the “high risk category for development of kernicterus.”   On June 8, 2001, Charlie was admitted to Calvert Memorial Hospital for double phototherapy and eventually discharged for administration of the treatment at home.  On June 9, 2001, Dr. Hawit advised against the continuation of the at-home treatment and instructed Mrs. Scott to bring Charlie in for a follow up visit in three to four weeks. 

            Charlie was subsequently seen by Dr. Ogborn and Dr. Reimschisel and Johns Hopkins Hospital.  Drs. Ogborn opined that Charlie was “a normally developing and healthy child” and stated that she and Dr. Reimschisel agreed that he did not require further evaluation or treatment. 

            By August 21, 2001, Charlie’s condition had worsened.  Charlie was admitted to Children’s National Medical Center for seizures.  Plaintiffs filed suit in Baltimore City Circuit Court alleging that Charlie’s injuries were permanent and due to inappropriately treated elevated bilirubin levels.

            Dr. Hawit and John Hopkins Hospital responded to the Complaint by individually filing motions to transfer the action to Calvert County Circuit Court pursuant to Maryland Rule 2-327(c).  A hearing regarding the motions took place in January 2012.  The factors considered were: (1) plaintiffs’ residency in Calvert County, (2) Dr. Hawit’s medical office and residence were located in Calvert County, (3) the alleged tortious act took place in Calvert County, (4) Dr. Hawit does not regularly practice in Baltimore City, (5) Hopkins’ principal place of business is in Baltimore City, (6) the alleged negligence on the part of Hopkins’ agents took place in Baltimore City, and (7) venue was proper in Baltimore City.  At the conclusion of arguments, the Circuit Court granted the motions to transfer, finding that the factors weighed strongly in favor of the case being tried in Calvert County: the residency of the plaintiffs, Dr. Hawit’s location and where the majority of the care at issue occurred. 

            The Court of Special Appeals held that the case could have been heard in either Baltimore City or Calvert County.  The Court cited the Court of Appeals’ opinion in Nodeen v. Sigurdsson:

            “Although the court generally has wide discretion in deciding whether to grant the motion [to transfer], it is an abuse of that discretion for the court to disturb a plaintiff's choice of venue when the balance does not weigh strongly in favor of the proponents of the transfer.”

Nodeen v. Sigurdsson, 408 Md. 180-81, 968 A.2d 1075, 1081-82 (2009).

            The Court in the instant matter held that there was a meaningful connection to Baltimore City:  it is the situs of one of the alleged torts said to produce Charlie Scott’s ultimate harm as well as the situs of the principal place of business of one of the defendants.  The only factor that pointed solely toward Calvert County was the residence of the plaintiffs, yet the plaintiffs had been traveling from Calvert County to Baltimore City for treatment for several years.  The Court further held that Baltimore City and its jurors would have an interest in the quality of medical care rendered there just as a Calvert County jury would.  Although plaintiffs were “foreign” as Calvert County residents filing suit in Baltimore City,  this factor did not tip the balance to support the holding that the "balance weighed strongly in favor of Calvert County.”

            The Circuit Court judgment was reduced and the case remanded for further proceedings.

Article contributed by Danielle Williamson 

             

            

Historic Judicial Appointments to the Maryland Court of Appeals

On July 3, 2013, Governor Martin O’Malley announced two historic judicial appointments to the Maryland Court of Appeals.  The Honorable Mary Ellen Barbera was appointed as Maryland’s first woman Chief Judge of the Maryland Court of Appeals.  

Governor O'Malley also appointed the Honorable Shirley Watts to fill the vacancy created by the retirement of Chief Judge Bell.  These appointments give the Maryland Court of Appeals its first ever female majority, first female Chief Judge, and first African American female judge.

In addition to the selections to the Maryland Court of Appeals, Governor O'Malley made several selections in the lower courts.  Lisa Hall Johnson was appointed to the District Court for Baltimore County, Joan Elizabeth Ryon to the Circuit Court for Montgomery County; Stacy Adele Mayer to the District Court for Baltimore County; and Gregory Cronin Powell to the District Court for Prince George’s County.

Municipalities Held Immune from Tortious Acts of Off Duty Police Officer

 In Clark v. Prince George’s County, 211 Md. App. 548, 65 A.3d 785 (2013), the Court of Special Appeals held that Prince George’s County (“the County”) was entitled to governmental immunity from common law tort claims committed by an off duty county police officer.  Additionally, the court affirmed the trial court’s grant of judgment in favor of the County in a suit for vicarious liability of the officer because the evidence presented at trial demonstrated there was no material factual dispute that the officer was not acting within the scope of his employment.  The Court of Special Appeals also held that the trial court did not abuse its discretion by granting the County’s motion in limine to preclude evidence of the officer’s mental health history and prior violent acts.

           The incident giving rise to the litigation occurred on January 24, 2007 when an employee of the Prince George’s County Department of Homeland Security, Keith Washington, used his service weapon to shoot Brandon Clark and Robert White while they were completing a scheduled delivery inside Washington’s home.  As a result of the shooting, Clark died and White sustained permanent physical injuries.

The personal representatives for Clark’s estate and White (“Plaintiffs”) sued the County for common law torts of negligent hiring, retention, and entrustment of Washington, for vicarious liability for torts committed by Washington, and for a constitutional tort claim.  The Circuit Court for Prince George’s County dismissed the common law claims on governmental immunity grounds and bifurcated the remaining claims.  At the close of the Plaintiffs’ case-in-chief in the vicarious liability case, the trial court granted judgment in favor of the County, finding that Washington was not acting within the scope of his employment at the time of the shooting.  Before the trial for the constitutional tort claim, the trial court granted the County’s motion in limine to preclude evidence of Washington’s mental health history and prior violent acts.  Without this evidence, the Plaintiffs could not make out a prima facie case.  Summary judgment was granted to the County on the constitutional claim, and the Plaintiffs appealed.

            The first issue considered by the Court of Special Appeals was whether the trial court erred by dismissing the common law torts against the County.  The Court of Special Appeals observed that counties are generally shielded from tort liability stemming from governmental actions.  Furthermore, the court noted that operation of a police department is quintessentially governmental.  The Plaintiffs argued that Jones v. State, 425 Md. 1. 38 A.2d 333 (2012), altered the law of governmental immunity.  The Court of Special Appeals, however, quickly distinguished this case by recognizing that Jones involved liability against the State of Maryland, whereas the instant case dealt with alleged tort liability directed toward a local municipality.  Ultimately, the court held that the trial court properly dismissed the common law claims brought by the Plaintiffs.

             The Court of Special Appeals next considered whether the trial court erred in granting judgment in favor of the County in the vicarious liability case.  To properly address this issue, the court had to determine if the evidence at trial generated a material factual dispute as to whether Washington was acting within the scope of his employment at the time of the shooting.  The court explained that the general test for determining scope of employment is determining whether the tortious acts were performed in furtherance of the employer’s business, and whether the employer authorized the acts.

            In this case, the court found that no material factual dispute existed because Washington was not acting within the scope of his employment.  Dispositive to the court’s determination included the fact that the shooting was allegedly done in self-defense, and that Washington was off-duty the entire day the shooting occurred, was plain-clothed and never identified himself as a police officer before the shooting, and his duties to the County were office-oriented rather than patrol-oriented.  Additionally, the court relied on the Court of Appeals decision in Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467 (1991), which held that, even though police officers are “on call” 24 hours a day, every act at every time by an individual officer is not necessarily in furtherance of the State’s business or incidental to police work.  The Court of Special Appeals, accordingly, affirmed the trial court’s grant of judgment in the vicarious liability case.

             The final issue considered by the court was whether the trial court erred by excluding evidence of Washington’s prior mental history and violent acts in the constitutional tort claim.  At trial, the Plaintiffs sought to introduce job related psychiatric evaluations dating back as early as 1995, and a non-job related police report from 2004 based on an altercation with a man in attendance at a 2007 home owner’s association meeting.  The trial court excluded the evidence because the psychiatric reports were too attenuated, and that Washington’s actions at the 2007 meeting were not indicative that he would later shoot someone.  The Court of Special Appeals found the trial court’s rationale for granting the County’s motion was not an abuse of discretion and, therefore, affirmed the trial court’s decision to preclude the evidence.

            Having found in favor of the County on all issues on appeal, the Court of Special Appeals affirmed the Circuit Court for Prince George’s County.