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Editorial Advisory Board: Time for lawmakers to act on contributory negligence

Maryland is one of but five United States jurisdictions that adhere to the ancient rule that contributory negligence is an absolute bar to a tort recovery for negligence. The rule has had several challenges in the Court of Appeals of Maryland, most recently in Coleman v. Soccer Association of Columbia, 432 Md. 679, 69 A.3d 1149 (2013).

In Coleman, the Court of Appeals agreed with our position that the legislature, not the court, should decide whether contributory negligence should be abandoned and what should replace it. However, the General Assembly declined our invitation to resolve the issue.  Five years have passed since Coleman and Maryland tort law remains unchanged with that of Virginia, North Carolina, Alabama and the District of Columbia.

On Wednesday, Jan. 9, 2019, the 439th session of the General Assembly of Maryland will convene.  As a consequence of the 2018 election, the General Assembly will include 18 new senators out of 47 and 42 new delegates out of 141. The influx of new members presents an opportunity for the General Assembly to examine Maryland’s law of negligence and consider how it may be brought into the 21st century.

Among the 46 states that have abandoned contributory negligence, there are several variations of comparative negligence that have replaced the traditional rule and related doctrines such as joint and several liability. In 1999, the American Law Institute adopted the Restatement (Third) of Torts – Apportionment of Liability, which contains five different variations or “tracks” dealing with the allocation of liability among multiple tortfeasors for an indivisible harm. In our own state, the Maryland Association of Defense Trial Counsel some years ago issued a position paper on comparative fault legislation, stating:

In order to be fair, there are three aspects of comparative fault which any bill abolishing contributory negligence needs to address. (1) It would have to address all fault-based torts, not just those which have traditionally been called ‘negligence.’ (2) The allocation of fault inherent in comparative fault must, in fairness, extend to all parties to the tort, thereby abolishing joint and several liability among defendants. (3) Finally, statutes which have grown up around contributory negligence would need to be amended if contributory negligence is abolished.

We do not take a position among these variations. However, the time is long overdue for Maryland to review the current law of contributory negligence and determine whether an alternative should be adopted.

The newly elected delegates and senators have four-year terms ahead of them. The major changes in Maryland tort law that abandonment of contributory negligence and replacement of it with some form of contributory negligence will necessarily take much study and time for deliberation. We urge the General Assembly to begin that study and deliberation as soon as the General Assembly convenes in January.  Those four years will fly by quickly.

Editorial Advisory Board members Arthur F. Fergenson and Angela W. Russell did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka King

Stephen Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

L. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.