The Court of Appeals reaffirmed Maryland’s long-standing doctrine of contributory negligence in Coleman v. Soccer Association of Columbia. Judge Eldridge wrote for the majority, while Judge Green concurred separately with three other members of the Court joining, affirming the capacity but not the wisdom of the Court’s alteration of Maryland law on this point. Judge Harrell, with Chief Judge Bell joining, wrote a strong and lengthy dissent critiquing the doctrine as perhaps the last of the dinosaurs not killed by an asteroid or other extinction event 65 million years ago.
Coleman was a soccer player who, after kicking a goal, reached up to grab the crossbar of the goal which had been inadequately anchored; the grab pulled the crossbar down onto Coleman’s face, resulting in severe injuries. The jury found factually that both the Soccer Association and Coleman had contributed negligently to the injuries that he sustained, which finding barred any recovery under Maryland’s contributory negligence doctrine.
Judge Eldridge’s 15-page majority opinion held that for the Court to exercise its power to change the common law of Maryland would be “inconsistent with the Court’s long-standing jurisprudence.” The 4-page concurrence took a slightly softer take on the issue, holding that the Court had the power to change common-law legal doctrines, had done so previously and that there was merit to preferring comparative negligence over contributory negligence. The concurrence noted, however, that it was better merely to encourage the General Assembly to consider the changes rather than to force the General Assembly to take action in response to an alteration of Maryland law, and that a change from contributory negligence would have practical effects on other tort doctrines and statutes best analyzed by the General Assembly.
Judge Harrell’s 51-page dissent explicitly stated that it was speaking not to the majority opinion in dialogue but into the future to provide guidance to a later composition of a Court of Appeals that would in fact overturn the contributory negligence doctrine, relegating it to a “tar pit” of judicial paleontology. The opinion makes a strong case for “pure comparative fault” as the preferred doctrine, by which even a mostly culpable tort plaintiff may make a claim for partial recovery for some damages. The dissent provides an exhaustive analysis of the Maryland General Assembly’s efforts to reconsider comparative fault and the judicial and legislative acts of other states in adopting comparative fault.
At present, Maryland, Virginia, North Carolina, Alabama and the District of Columbia are the only jurisdictions that maintain the contributory negligence doctrine. Conservative, pro-business states like New Hampshire, Texas, Utah and Alaska have rejected it. I often joke that in many ways Maryland is “England junior”, holding more firmly than most states to the common law as a right and entitlement of the inhabitants of Maryland (Md. Dec. of Rights Art. 5(a)(1).) Notwithstanding the dissent, Maryland’s courts have not been quick to change the common law. This case reinforces that observation. One suspects, however, that the next General Assembly will have a lot to consider from Judge Harrell’s lengthy dissent.