On July 9, 2013, Maryland’s highest appellate court, the Court of Appeals, declined to abandon the longstanding common law doctrine of contributory negligence, which is a complete bar to recovery for any plaintiff whose negligence contributes to his or her injuries.
In Coleman v. Soccer Association of Columbia, a case that had been highly anticipated by Maryland’s legal community, the Court affirmed that it had the power to adopt comparative negligence as the law in Maryland but elected not to do so.
In comparative negligence jurisdictions, a plaintiff recovers only for those damages for which he or she is not responsible. The 15 page opinion was accompanied by a 51 page dissent and a 4 page concurrence.
The case arose as a result of injuries sustained by James Kyle Coleman, “an accomplished soccer player who had volunteered to assist in coaching a team of young soccer players in a program of the Soccer Association of Columbia (Association), in Howard County, Maryland.”
During a team practice, Coleman jumped up and grabbed the crossbar of a goal. The crossbar was not anchored to the ground, and Coleman fell backwards, “drawing the full weight of the crossbar onto his face.”
Coleman’s injuries included facial fractures that required three titanium plates in his face. Coleman sued the Association, which asserted contributory negligence as a defense.
At trial, the parties offered differing testimony about what, if any, duty the Association owed Coleman and whether Coleman’s injuries were caused solely by his own negligence. The Association’s evidence showed that it neither owned nor provided the goal in questions, and that the goal was not in an area that the Association controlled.
The Association also offered evidence that the goal’s condition was open and obvious and that Coleman was responsible for his own injuries. Coleman disputed this, arguing further that it is common for players to hang from crossbars, and the Association should have anticipated this and anchored it properly.
At the close of evidence, Coleman submitted a jury instruction on comparative negligence, which the judge declined to give to the jury.
The jury found that the Association’s negligence was a cause of Coleman’s injuries, but that Coleman’s own negligence also contributed to his injuries. Under Maryland’s doctrine of contributory negligence, Coleman was completely barred from recovery. The trial court denied Coleman’s motion for judgment notwithstanding the verdict and entered judgment in the Association’s favor.
The Court of Appeals agreed to hear the case before it was briefed and argued at Maryland’s intermediate appellate court, the Court of Special Appeals.
Coleman’s sole issue on appeal was whether the Court of Appeals “should retain the standard of contributory negligence as the common law standard governing negligence cases,” in Maryland.
The Court of Appeals answered this question by noting that it “has the authority to change the common law rule of contributory negligence,” but it declined to abrogate this “long-established common law principle….”
Judge John C. Eldridge (Retired, Specially Assigned), who wrote the opinion, revisited the last time the issue of whether to replace contributory negligence with comparative negligence was before the Court.
In Harrison v. Montgomery County Bd. Of Educ., 295 Md. 442, 464, 456 A.2d 894 (1983), the Court ruled that contributory negligence remained the law in Maryland and that “any change in that established doctrine [was for] the Legislature.”
In Harrison, the Court reviewed the historical origins of contributory negligence, including early English cases. The Harrison Court noted that early American courts adopted contributory negligence because of concerns that high jury awards would stifle emerging industries.
Early courts also were wary of rewarding people who suffer injuries as a result of their own wrongdoing. Relying on these concepts, Maryland first adopted contributory negligence in an 1847 case, Irwin v. Sprigg, 6 Gill. 200, 205. (Maryland later modified the doctrine to note exceptions for injured persons under 5 years old and if the defendant could have exercised sufficient care to avoid the consequences of plaintiff’s carelessness.)
The Harrison court noted that in the early 20th century, Maryland’s legislature adopted comparative negligence for “certain perilous occupations,” but later repealed those provisions. In 1983, 31 of the 39 states that had adopted comparative negligence did so by statute.
While acknowledging that the trend favored adopting comparative negligence, the Harrison court noted that there are different versions and it is best to have the legislature decide which version, if any, to adopt.
The court also invoked the legal doctrine of stare decisis as weighing in favor of leaving contributory negligence as the law in Maryland absent legislative action.
Judge Eldridge noted that since Harrison, Maryland’s “General Assembly has continually considered and failed to pass bills that would abolish of modify the contributory negligence standard.”
This failure to act legislatively is “a clear indication of” and “very strong evidence that” the legislative policy in Maryland is to retain contributory negligence. Courts should not change common law contrary to Maryland’s public policy as set forth by the General Assembly.
In the concurring opinion, Judge Clayton Greene noted additional problems that would arise were the Court to throw out contributory negligence and adopt comparative negligence. How would it apply in cases of multiple tortfeasors? How would it impact the concept of joint and several liability? Would it destroy the viability of the Uniform Contribution Among Joint Tort-Feasors Act? Would it abolish the doctrines of last clear chance and assumption of the risk?
These questions, and the question of which version of comparative negligence to adopt, are best suited for the General Assembly to decide, in Judge Greene’s view.
Judge Glenn T. Harrell, Jr., in dissent, compared contributory negligence to a dinosaur that, in his view, the Court should have rendered extinct.
Judge Harrell invoked long standing criticism of the “all-or-nothing consequences” of contributory negligence. Citing many legal commentators, Judge Harrell called for a comparative negligence system that “apportions damages between a negligence plaintiff and negligent defendant according to each party’s relative degree of fault.” Ultimately, Judge Harrell would prefer adoption of pure comparative negligence.
Judge Harrell noted that even at the time Harrison was decided, the Court of Appeals recognized that jurisdictions that had transitioned from contributory negligence to comparative negligence did so with little difficulty.
Further, none of the judges on the Court of Appeals disputed that the Court had the power to make the change. Judge Harrell was unconvinced that stare decisis was sufficient reason to refrain from making the change and believed that the court need not defer to legislative inaction.
Judge Harrell wrote the dissent hoping that a future majority of the Court of Appeals would rely on it to abolish contributory negligence and adopt comparative negligence.
Coleman has implications for insurers and insureds alike. Insurers will not face the increased litigation that may have accompanied a switch to comparative negligence as Maryland sorted out implementing this new law.
When evaluating the insured’s liability, insurers can continue to consider whether a Plaintiff’s own negligence contributed to the alleged injuries, creating a complete bar to recovery. Further, the specter of a defense verdict based on the Plaintiff’s negligence can be useful to insurers during settlement negotiations.
Insureds remain able to avoid adverse liability findings for their negligence, but they also continue to risk looking like they are “blaming the victim” when they rely on contributory negligence as a defense.
It remains to be seen how, if at all, this opinion spurs any legislative action in the General Assembly to change Maryland to a comparative negligence jurisdiction.
For now, however, any plaintiff whose own negligence contributes to his or her injury is completely barred from recovery. The Court of Appeals has spoken, and contributory negligence remains the law in Maryland.
James P. Steele is a member of law firm Carr Maloney P.C. in Washington, D.C. Steele counsels insurers on complex coverage matters and litigates insurance coverage disputes. He litigates and arbitrates coverage cases involving construction mishaps, professional liability claims, uninsured/underinsured motorist policy provisions, subrogation claims, third-party additional-insured disputes, lead paint exclusions, and “other insurance” provisions.
Andrew M. Williamson is an associate with Carr Maloney P.C., primarily handling civil defense litigation. He concentrates his practice on defending clients in insurance disputes, tort liability cases, professional malpractice claims, class action claims, and commercial litigation.
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