Contributory Negligence

There has been an interesting two-level debate in Maryland regarding the legal doctrine of contributory negligence.

What is contributory negligence?  Well, here it is in a nutshell.

Imagine you are in a car accident in Utah (not that I would wish such a thing), let’s say in a head-on collision.  You suffer $100,000.00 worth of extensive medical bills, lost wages, damages to your car, etc.  The other driver is drunk, driving at 70 miles in a 30 zone and is actively fleeing a cop.  You are driving at 33 in a 30 zone, per a speed camera over the intersection.  The case goes to jury and the jury finds that the other driver is 98% at fault and you are 2% at fault.  How much money should you get?

Well, in Utah – a state that rejected contributory negligence and uses a variation of the doctrine of comparative fault – you would get (I am informed) 98% of your damages because you were only 2% at fault.  So you get $98,000.00, not $100,000.00.  Essentially, your relatively minute fault affects your outcome in a relatively minute way.

In Baltimore or Silver Spring or Hagerstown or Ocean City, the outcome would be easier to calculate mathematically: you’d get nothing.  Your negligence contributed, however slightly, to the accident; you lose everything.

Maryland, a few other mid-Atlantic jurisdictions and Alabama are reportedly the only states to have retained this piece of the common law of England to this date; Texas, Utah, New Hampshire, South Carolina, Alaska and other conservative states are in a sense more “liberal” than allegedly liberal Maryland on this point.  Many attempts to conform this doctrine to the one of the various forms of comparative fault have met with absolute failure in the Maryland General Assembly.  There can be no doubt that some legislators are influenced by the hard-working lobbies that claim that Maryland’s economy would be ruined if it were to hold the same legal doctrine as New Jersey or Connecticut, two largely suburban and prosperous states fairly similar to Maryland in many ways.

Maryland’s Court of Appeals has fairly broad powers to develop legal doctrines consistent with the Maryland Constitution but has not been very aggressive historically in developing such doctrines.  A debate has arisen, however, as to whether modern life and modern automobile insurance economics justify a judicial re-writing of the common law on this point.  Note well that no statute discusses the topic; the doctrine of contributory negligence exists in court decisions that ultimately derive from the Maryland state  Constitutional doctrine of the right of the people of Maryland to enjoy the benefits of the common law of Maryland as it stood on Independence Day, 1776.

A Court of Appeals Rules Committee has opined (Daily Record paywall) that the Court does not have the power to change the doctrine of contributory negligence.  In my view, this is the proper ruling.  While I think that comparative fault is fundamentally fairer than contributory negligence in terms of the proportional justice, courts should not be in the business of acting as mini-legislatures, and should invoke their powers reluctantly in order to defend law, not to invent new law.  The General Assembly of Maryland is competent to address the issue of comparative fault and no fundamental legal principle such as equal protection of the laws, due process of law or separation of powers mandates the introduction of comparative fault (indeed, the imposition would probably constitute a violation of the separation of powers doctrine.)

That said, I hope that someday Maryland will be as progressive as Utah, Wyoming and Oklahoma on this issue.

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