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Big guns join the fight over fault

A case pending before Maryland’s top court has attracted national attention as groups representing U.S. businesses, doctors and insurers are pressing the Court of Appeals to preserve a 165-year-old ruling that defendants cannot be held liable for damages if the plaintiffs’ own negligence contributed at all to their injuries.

Sen. Brian E. Frosh

In a joint brief to the judges, the U.S. Chamber of Commerce, American Medical Association and American Insurance Association last week urged the court to hold fast to its 1847 decision in Irwin v. Sprigg.

The national groups’ involvement might seem odd, in that Maryland is one of only five jurisdictions in which contributory negligence is an absolute defense.

But Mark A. Behrens, who wrote the brief, said the national groups are keenly interested in the case due to the “significant impact” that overturning the defense would have on their members doing business in Maryland.

Removing the shield would increase insurance premiums for consumers and businesses, and put Maryland businesses at a disadvantage in the region, said Behrens, of Shook, Hardy & Bacon LLP in Washington, D.C.

He noted Maryland’s proximity to Virginia, North Carolina and Washington, D.C. — three of the other contributory fault jurisdictions, with Alabama being the fifth.

“They’ll vote with their feet,” Behrens said. “The businesses will go elsewhere and the jobs will go elsewhere.”

The Maryland Association for Justice has filed a brief for the challengers, saying the absolute bar on recovery is antiquated and discourages businesses from repairing faulty equipment or practices.

A more fair approach would be comparative negligence, in which the plaintiffs’ recovery would be reduced by their proportion of responsibility for their injuries, stated MAJ, whose members are plaintiffs’ attorneys.

“The Court of Appeals is the body that gave us contributory negligence,” said Wayne M. Willoughby, a MAJ spokesman and former president.

Wayne M. Willoughby

“It is proper for the Court of Appeals to review the doctrine it created to determine if it is appropriate in today’s society,” added Willoughby, of Gershon, Willoughby, Getz & Smith LLC in Baltimore.

The Court of Appeals will hear the case on Sept. 10.

Pit bulls and precedent

Working in MAJ’s favor is the Court of Appeals’ recent willingness to change longstanding precedent.

In April, the court found pit bulls were an inherently dangerous breed, imposing strict liability for injuries on dog owners and landlords for pit bulls and pit mixes. Earlier rulings required the victim to prove the owner or landlord knew the dog had dangerous tendencies.

The decision in Tracey v. Solesky created such a furor that the General Assembly has formed a task force to examine if legislation should be introduced next year to undo the court’s decision.

At the time of the opinion, however, the Court of Appeals spelled out that it was dealing with a common-law rule — one the court had created and one the court could change.

The same is true of contributory negligence.

The court’s decision in Solesky came on April 26 — six days after the court agreed to hear the challenge to contributory negligence brought by James Coleman in his suit against the Soccer Association of Columbia.

Collapsed goal

Coleman sued the soccer association after a metal goal collapsed when he playfully grabbed the crossbar three years ago at Lime Kiln Middle School in Fulton.

In October, a Howard County Circuit Court jury found the association was negligent for failing to maintain the goal. However, the jury refused to award damages because it found that Coleman, too, was negligent.

Coleman, through his attorney Bruce M. Plaxen, appealed to the intermediate Court of Special Appeals but also filed a direct petition to the high court. Plaxen said he was not surprised when the high court took the case first.

“This issue was heading to the Court of Appeals eventually and I think they recognized that,” said Plaxen, of Plaxen & Adler PA in Columbia.

The last time the court reviewed contributory negligence was in 1983, when it let the doctrine stand, he noted.

“It’s been 30 years, I think it’s time for the Court of Appeals to look at it again,” Plaxen said.

The soccer group’s lawyer, Douglas W. Biser, said he was surprised the high court took the case first.

“That’s some indication to me that they are interested in this issue,” said Biser, of Mudd, Harrison & Burch LLP in Towson.

Biser said he did not contact any of the national groups to get their support, but quickly added that “we welcome their participation.”

He also voiced confidence that the Court of Appeals will find that any change in the longstanding contributory negligence standard should be made by the General Assembly.

“The legislature has known that contributory negligence is the law of the state and they’ve seen fit not to change it,” he said.

But state Sen. Brian E. Frosh, who chairs the Senate Judicial Proceedings Committee, predicted the high court will not defer to the General Assembly this time.

Frosh noted that the high court asked the Judiciary’s rules committee about methods of changing the standard back in November 2010.

In March 2011, the Standing Committee on Rules of Practice and Procedure responded that a change could not occur by rule, said Frosh, D-Montgomery.

“I believe they [the court] wanted to send a signal to the bar and the public that they were going to change the [standard],” he added. “Maybe I’m misreading the court but that’s my version of reading the tea leaves.”

Frosh, who co-chairs the pit bull task force, also predicted that the high court’s seven judges will approach the contributory negligence case in the same way it did the Tracey case: with a willingness to undo precedent if justice calls for it.

“They are not going out there and overturning lots and lots of common law precedent,” he added. “They don’t do it lightly but they’re not afraid to do it in appropriate circumstances.”

Frosh said it would be appropriate to end contributory negligence, which he called an “ancient, kind of silly doctrine” that is unfair to plaintiffs.

But the committee chairman said he has failed to convince a majority of the General Assembly to agree.

“It’s like any other policy that’s been in place for many years,” Frosh said. “You’ve got vested interests and they don’t want anything to change.”


One comment

  1. Sept. 10th should be an interesting day.