Perpetuating Injustice: Analyzing the Maryland Court of Appeals’s Refusal to Change the Common Law Doctrine of Contributory Negligence

Andrew White

The modern perception that contributory negligence is a “dinosaur” reflects the fact that it was created in a different era. In 1809, Lord Ellen- borough, Chief Judge of the King’s Bench, created the doctrine of contributory negligence, simultaneously incorporating it into the common law of England. Under contributory negligence, a plaintiff is completely barred from recovering damages in a negligence suit when he or she fails to use ordinary care and is an immediate and proximate cause of his or her injury. At first glance this seems fair—negligent plaintiffs are barred from recovery. However, contributory negligence does not account for the proportionate fault of each party. A plaintiff who is only slightly negligent will be completely barred from recovery, even when the defendant is primarily responsible for the accident. A good example is a jaywalker who tries to cross an intersection late at night and is hit by a driver who is speeding, has his headlights off, and runs a red light. Under contributory negligence, the jaywalker is completely barred from recovery because he was negligent in unlawfully crossing the street, even though the speeding driver who ran the red light is arguably more at fault for the accident.