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Senate committee hears debate over contributory negligence legislation

ANNAPOLIS — Business lobbyists and plaintiffs’ attorneys battled before a Senate committee Tuesday over legislation that would codify Maryland’s longstanding court-made law that defendants cannot be held liable for damages if the plaintiffs’ negligence contributed at all to their injuries.

Representatives of companies and landlords urged the senators to enact the Court of Appeals’ “contributory negligence” doctrine before the General Assembly adjourns in three weeks, saying Maryland’s top court appears poised to overturn the legal protection for civil defendants it first announced 166 years ago.

“It will have severe negative effects on the business climate in Maryland” if the legislature does not act and the high court overturns the contributory negligence doctrine, Matthew J. Palmer of the Maryland Chamber of Commerce told the Senate Judicial Proceedings Committee.

He predicted Maryland business would leave the state and out-of-state businesses would no longer consider moving to Maryland without the age-old legal protection.

But plaintiffs’ attorney Robert J. Zarbin objected to what he called the businesses community’s cry that “the sky is falling” before the Court of Appeals has even ruled in a pending case addressing contributory negligence.

“We should respect the Court of Appeals, respect their decision and see what they do,” said Zarbin, an Upper Marlboro lawyer. “The court oftentimes has to lead.”

Zarbin added an overwhelming majority of states — 46 — do not recognize contributory negligence, and their business communities have thrived.

The four states with contributory negligence are Maryland, Virginia, Alabama and North Carolina, as well as Washington, D.C. The rest have some form of comparative negligence, which limits a plaintiff’s award based on the percentage by which they were at fault.

The debate before the committee panel centered on Senate Bill 819, a “contingent” measure that would codify contributory negligence — but only if the Court of Appeals overturns the doctrine in a case the judges heard Sept. 10.

A decision is pending in that case, Coleman v. Soccer Association of Columbia, No. 9, September Term 2012.

Ellen Valentino, of the National Federation of Independent Business, told the committee she has “grave concern” that the court took the case to overturn contributory negligence and will announce its decision soon after the General Assembly adjourns in April.

The likelihood that the court will overturn contributory negligence “is the big white elephant in the room for the business community,” Valentino said.

“Let’s stop it now” by passing S.B. 819, she added.

But plaintiffs’ attorney James K. MacAlister, of Saiontz & Kirk PA in Baltimore, urged the senators to let the legal system first take its course on the issue of contributory negligence.

The legislation “is a solution looking for a problem that hasn’t yet materialized,” said MacAlister, who, like Zarbin, was representing the Maryland Association for Justice, which represents the plaintiffs’ bar. “Let’s let the Court of Appeals speak.”

In the Coleman case, plaintiffs’ attorneys are challenging the contributory negligence doctrine on behalf of James Coleman. Coleman sued the Soccer Association of Columbia, Md., after a metal goal collapsed when he playfully grabbed the crossbar four years ago at Lime Kiln Middle School in Fulton.

In October 2011, a jury found the association was negligent for failing to maintain the goal. But the jury declined to award damages because it found that Coleman, too, was negligent.

Coleman, through his counsel, successfully asked the Court of Appeals to review the case.

The high court has given no indication when it will render a decision.