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Contributory negligence: An anomaly with staying power

General Assembly has declined to discuss altering the common-law doctrine

In retrospect, the Maryland family’s lawsuit alleging a drug company’s anti-diabetes medication killed their loved one was over before it began.

Diep An’s years of smoking blocked any chance his widow and three children had of collecting the more than $1.75 million a Baltimore City Circuit Court jury tentatively awarded them in 2013 against Takeda Pharmaceuticals, whose anti-diabetes medication Actos was linked to An’s fatal bladder cancer.

The same jury that found the company negligent for failing to warn doctors of the drug’s risk also found An contributorily negligent in his cancer death due to his smoking.

Maryland remains one of only four states where contributory negligence is an absolute bar to recovery in a negligence action, an anomaly that does not appear likely to end soon.

Six years ago, Maryland’s top court said the fate of contributory negligence rested with the legislature. Since then, the General Assembly has declined to discuss altering the 172-year-old common law doctrine absolving defendants of liability in personal injury lawsuits if the plaintiffs were at all to blame for the harm that befell them.

This legislative inaction will likely continue based on the absence of any debate on the issue in the legislature in recent years, coupled with the historical reticence of the General Assembly to make major changes to a law that has equally strong advocates on both sides.

Think same-sex marriage and abolition of the death penalty, which the General Assembly enacted only after several years of intense debate.

“Big changes (to contributory negligence) would not come with the snap of the fingers,” said Sen. Robert A. “Bobby” Zirkin, who noted that sharp divisions between the civil defense and plaintiffs’ bars would likely keep the issue of altering contributory negligence at bay in the General Assembly.

Contributory vs. comparative negligence

Defense attorneys favor the status quo of absolution, while plaintiffs’ counsel seeks a change to comparative negligence, which would reduce defendants’ liability by the percentage of fault attributable to the injured party.

Plaintiffs’ attorneys say comparative negligence is in keeping with the notion that civil justice is achieved via a fair apportionment of responsibility and blame between parties.

But defense lawyers, citing the same concept of fairness, counter that any move toward comparative negligence would have to be accompanied by a departure from joint and several liability, under which plaintiffs can pursue payment of damages from a single defendant — usually the wealthiest — even when other defendants were also found to be at fault. If comparative negligence were adopted, the defense bar says, each defendant should then be held liable only for his or her share of the harm.

“That (would be) a monumental change in the law in how we do tort cases, obviously,” said Zirkin, who chairs the Senate Judicial Proceedings Committee. “Like many bills in Annapolis, there’s the concept and making sure that the details add up.”

“I believe we should have some form of comparative negligence,” Zirkin said, adding that he also sees the defense bar’s argument for comparative liability.

“They are in the same philosophical area,” added Zirkin, D-Baltimore County. “If you are going to address one, you probably have to address the other.”

National statistics appear to be on the side of the defense bar with regard to a link between comparative negligence and comparative liability among defendants.

Each of the four contributory negligence states — Maryland, Virginia, North Carolina and Alabama — has joint and several liability, under which a single defendant can be held responsible for the full damages when other defendants have also been found liable.

Of the 46 states that do not have the contributory negligence defense, only four have joint and several liability, with the rest having comparative liability. The four states are Delaware, Maine, Massachusetts and Rhode Island, according to a fall 2018 compilation by USLaw Network Inc., an organization of corporate and small-business law firms.

Zirkin, whose committee would have jurisdiction over legislation to change the liability standard, said he has not heard of any forthcoming proposals to alter contributory negligence.

Likewise, House Judiciary Committee Chair Luke Clippinger said he knows of no coming legislation.

“It is an issue that people feel incredibly strongly about” on both sides, said Clippinger, D-Baltimore. “It would be a significant change.”

Attorney Dwight W. Stone II agreed with that sentiment on behalf of the civil defense attorney organization of which he is president.

“Maryland Defense Counsel has a long-stated position that any change in the law of contributory negligence should be made through legislation and requires substantial revision of other statutory provisions and common law holdings,” said Stone, referring to a revision from joint and several liability to comparative liability. “Simply doing away with the defense of contributory negligence, by itself and without changes to Maryland laws, would be unwise.”

Stone is with Miles & Stockbridge P.C. in Baltimore.

Plaintiffs’ attorney Bruce M. Plaxen disagreed, saying that balancing the negligence of defendants and plaintiffs in an injury case would be a calculation unrelated to distributing responsibility among several defendants whose actions independently caused the injury.

“We believe the time for a comparative negligence bill is long overdue,” said Plaxen, of Plaxen & Adler P.A. in Columbia and chair of the Maryland Association for Justice’s political action committee. “There is no reason that Maryland can’t have comparative negligence and joint and several liability.”

Timothy F. Maloney, who also represents plaintiffs, pointed to the election of more liberal legislators in 2018 in voicing hope that the General Assembly would replace the contributory negligence defense with a comparative fault standard.

“We have a much more progressive General Assembly,” said Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt. “This might be the time for the legislature to take another look at this.”

‘Nuclear option’

Maloney likened contributory negligence to a “nuclear option” for defense counsel.

“If the defense is successful, they are able to blow up the plaintiff’s case even for a small amount of negligence on the plaintiff’s part,” he said.

“I think it’s an embarrassment to the state’s civil justice system,” Maloney added. “It changes the balance of power between the plaintiff and the defendant.”

Maloney would not say whether he has ever counseled clients to settle or drop a case due to their own negligence, but he said the availability of the absolute contributory negligence defense remains a conversation plaintiffs’ lawyers must initiate.

“You have to discuss all the challenges and risks of the case” with the client, Maloney said. “It’s a discussion that all plaintiffs’ lawyers have when there’s a possibility of contrib.”

Maryland, Virginia, North Carolina and Alabama have been the only states with the contributory negligence defense for at least the past 15 years.

The proximity of these jurisdictions to Maryland figured prominently the last time the issue of contributory negligence came before the General Assembly — in 2013.

That year, the Maryland Chamber of Commerce told the Senate Judicial Proceedings Committee that ending the contributory negligence defense would have a “severe negative effect on the business climate” in the state, as companies would move to the neighboring jurisdictions that still had the liability protection. The Maryland Association for Justice, an organization of plaintiffs’ attorneys, countered that businesses have thrived in the 46 states that did not have a contributory negligence defense.

That 2013 legislation was aimed at codifying — not altering — contributory negligence. The bill, which failed, was backed by the defense bar out of its anxiety that the Maryland Court of Appeals was poised to end the controversial fault standard and perhaps change it to comparative negligence.

That concern proved unwarranted.

Later that year, the Court of Appeals made it clear that any change to contributory negligence in the state would have to come from the General Assembly – even though it was the high court that adopted the controversial liability defense in its 1847 decision Irwin v. Sprigg.

“For this court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the court’s longstanding jurisprudence,” Judge John C. Eldridge wrote for the high court’s 5-2 majority in Coleman v. Soccer Association of Columbia.

The case had drawn national attention in the business community, as the U.S. Chamber of Commerce, American Medical Association and American Insurance Association filed a joint brief urging the judges to hold fast to contributory negligence. The groups said removing the defense would increase insurance premiums for consumers and businesses and put Maryland companies at a disadvantage in the region.

The high court’s decision was a loss for James Coleman, who sued the Columbia, Md., group after a metal soccer goal collapsed when he playfully grabbed the crossbar in 2010 at Lime Kiln Middle School in Fulton. The crossbar fell on Coleman’s face, causing injuries that required surgery.

A Howard County Circuit Court jury had found the association negligent for failing to maintain the goal. But the jury declined to award damages because it found that Coleman, too, was negligent in his horsing around.

‘A dinosaur’

The court’s decision upholding that verdict drew a scathing dissent from Judge Glenn T. Harrell Jr.

“A dinosaur roams yet the landscape of Maryland … feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability,” wrote Harrell, who was joined by then-Chief Judge Robert M. Bell. “The name of that dinosaur is contributory negligence.”

Harrell predicted his views would be adopted by “a future majority of this court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”

That day has not come to pass, despite a stronger bid by a more sympathetic plaintiff.

In 2014, the Court of Appeals declined to hear James Sampson’s appeal of a lower court decision that he was contributorily negligent for the broken bones and other injuries he suffered when he was struck by a car while crossing Pratt Street at its intersection with Sharp Street in Baltimore.

The Baltimore City Circuit Court jury found motorist Victoria Basso at fault in the 2010 incident. The jury, however, also concluded that Sampson, who is legally blind, was contributorily negligent by walking outside the crosswalk.

Harrell dissented from the high court’s decision not to hear Sampson’s appeal.

“It is now abundantly clear that a majority of the present court … lacks the will and vision to unseat the court’s concededly less fair doctrine of contributory negligence, in favor of a system of comparative fault,” Harrell wrote. “To my chagrin, the ‘future majority’ I foresaw in my dissent in Coleman … has not arrived on the scene yet.”

Harrell and Bell have since retired and the high court’s current members have not indicated whether they would be willing to overturn the Coleman precedent if another challenge to contributory negligence comes before them.

Attorney James K. MacAlister, who represented Sampson, called contributory negligence “an abomination, a relic of pre-abolition Maryland” that has strong supporters in the defense bar and, grudgingly, from some plaintiffs’ attorneys who fear a move to comparative negligence would lead to comparative liability, reducing their clients’ ability to be awarded full damages — if necessary — from the wealthiest of several defendants.

“We somehow can’t fix contributory negligence,” MacAlister recently said. “Legislatively, it’s a hard lift for us.”

MacAlister is with Cohen, Snyder, Eisenberg & Katzenberg P.A. in Baltimore.

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