Apportioning Liability in Maryland Tort Cases: Time to End Contributory Negligence and Joint and Several Liability

Donald G. Gifford & Christopher J. Robinette

Our tale begins in 1847, “[a] long time ago in a galaxy” not so far away. Most African Americans in Maryland were held in bondage. Women had neither the right to vote nor the right to own property. The invention of the automobile would not occur for another fifty years and the Industrial Revolution had yet to transform the economy of Maryland. Accordingly, the number of accidental injuries was extremely tiny when compared to their incidence today. Legal actions seeking compensation for negligently inflicted injuries were few and far between. In that year, Maryland’s highest court, not its legislature, decided for the first time that contributory negligence—the victim’s own careless conduct that contributes to his (a woman could not then bring a legal action) injury—totally bars his recovery when the tortfeasor’s negligent conduct is also a cause of the injury, even if the tortfeasor’s wrongdoing is much more culpable than that of the victim.

Fast forward to July 9, 2013. In Coleman v. Soccer Ass’n of Columbia, six of the seven judges of the Court of Appeals of Maryland acknowledged that they regard comparative fault—a doctrine that would apportion responsibility for plaintiff’s damages between the victim and the tortfeasor according to their respective degrees of fault—as both “‘more equitable’” and “‘more socially’” desirable than the continuance of the rule of contributory negligence. Everyone on the court agreed that it has the constitutional authority to change the common law and that the court ordinarily should overturn precedent when the overruling is justified by “‘changed conditions.’” The court refused, however, to throw the doctrine of contributory negligence into the dustbin of history. Instead, it deferred to the Maryland General Assembly.

Meanwhile, a short distance up the street, the General Assembly has been paralyzed by the standoff between two of Annapolis’s most powerful groups of lobbyists: on one hand, those representing business and insurance interests and, on the other hand, those representing plaintiffs’ trial counsel. Business lobbyists, in the face of substantial empirical evidence to the contrary, annually parrot the prediction that adoption of comparative fault would destroy Maryland’s economy and cost tens of thousands of jobs. Representatives of Maryland’s business and insurance communities argue that Maryland must retain the rule of contributory negligence because, in so many other regards, the tax and litigation climate in Maryland is more antibusiness than it is in other states. Further, these advocates claim that the neighboring states of Virginia, North Carolina, and the District of Columbia are most often the jurisdictions in competition with Maryland in attracting businesses. These jurisdictions comprise three-quarters of the trivial number of jurisdictions that, like Maryland, continue to apply contributory negligence. These same lobbyists conveniently ignore the fact that Delaware, ranked by the U.S. Chamber of Commerce as the nation’s most business-friendly state, is also a comparative fault state.