September 18, 2013 Top Story

Maryland Declines to Do Away with Contributory Negligence

High court leaves negligence standard for the legislature to decide

Sara E. Costello

Contributory negligence remains a viable defense, the Court of Appeals of Maryland recently held in Coleman v. Soccer Association of Columbia. Although the Coleman court acknowledged that contributory negligence is unpopular with legal scholars and is criticized for creating a “windfall” for defendants, it declined to change the doctrine. Rather, the court held that the state legislature should take the lead in adopting a different negligence standard.

Competing Negligence Doctrines

Only a few jurisdictions continue to apply the doctrine of contributory negligence. In Maryland, along with Alabama, North Carolina, Virginia, and the District of Columbia, if a plaintiff negligently contributes to his injuries, he cannot recover damages. In contrast, the majority of jurisdictions have switched to a comparative negligence standard. As the dissent explains in Coleman, when this standard is applied, “a plaintiff’s contributory negligence does not bar recovery, but rather reduces proportionately his or her damages.”

Background Facts

The plaintiff, an “accomplished soccer player,” was serving as a volunteer coach for a local soccer association when he was severely injured. While attempting to dislodge a soccer ball from the goal, the plaintiff grabbed the goal’s metal top rail, known as the crossbar. Because the soccer goal was not anchored to the ground, the goal fell on top of the plaintiff. The plaintiff suffered several fractures, which required surgery.

The plaintiff filed suit against the soccer association in the Circuit Court for Howard County, Maryland, alleging that the association was responsible for anchoring the goal. In defense, the association argued that the plaintiff caused the accident. At the conclusion of the trial, the jury concluded that the soccer association was negligent. The jury, however, also found that the plaintiff’s own negligence contributed to his injuries. Applying the contributory negligence standard, the trial court then concluded that the plaintiff was not entitled to recover damages.

The plaintiff appealed to the Court of Special Appeals of Maryland. But before the start of briefing at the appellate court, the plaintiff filed a petition for a writ of certiorari to Maryland’s highest court, the Court of Appeals. The court granted the petition, which asked whether the common law standard of contributory negligence should continue to govern negligence cases in Maryland.

Contributory Negligence Remains the Law 

The Coleman court first examined whether it had the authority to change the negligence standard. The court noted that no Maryland statute mandates that contributory negligence be applied. Because contributory negligence is a “court-created” doctrine in Maryland, the court found that it did have the authority to change the negligence standard.

The Coleman court, however, concluded that public policy in Maryland clearly favored retaining the doctrine. The court cited 10 recent legislative attempts to abolish the contributory negligence standard and attached great importance to the Maryland General Assembly’s failure to enact any of the bills. Changing the negligence standard “in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the Court’s long-standing jurisprudence,” the court stated. In the Coleman court’s view, switching from contributory negligence to comparative negligence would involve a “variety of choices” best decided by the General Assembly.

Dissent Calls Contributory Negligence a “Dinosaur”

In a strongly worded dissent, Judge Glenn T. Harrell Jr. argued that the court should declare contributory negligence “extinct.” The dissent contended that the General Assembly’s failure to act should not be viewed as an endorsement of contributory negligence. According to the dissent, it is the court’s responsibility to adopt a comparative negligence standard. Quoting the Iowa Supreme Court decision in Goetzman v. Wichern, the dissent described comparative negligence as “the fairest, most logical and simplest to administer of all available systems.”

“The legislature won’t change the standard in the foreseeable future,” predicts Paul Mark Sandler, Baltimore, cochair of the ABA Section of Litigation’s Special Committee on the Litigation Institute for Trial Training and former Secretary of the Section of Litigation. The lengthy dissent in Coleman, however, may prove to be significant. “Great dissents have sometimes emerged as majority opinions and become law,” Sandler says.

Practicing in a Contributory Negligence Jurisdiction

Recognizing that contributory negligence is currently the law in Maryland, attorneys representing plaintiffs in negligence cases must be prepared for this defense. “It is important to know your case’s shortcomings,” Sandler cautions. Attorneys should also examine their cases and “try to find an exception” to the contributory negligence standard, he suggests. For example, exceptions include “when a plaintiff is under five years old, in strict liability cases, and when the last clear chance doctrine applies.”

On the other hand, in some cases, contributory negligence may increase “the odds of a defendant achieving an early victory on motion grounds,” says Laura J. Walther, Washington, D.C., cochair of the Section’s Automotive Subcommittee of the Products Liability Committee. Defense counsel should engage in discovery regarding contributory negligence and “early motion practice to save your client costs, if you can,” she recommends.

Sara E. Costello is an associate editor for Litigation News.

Keywords: contributory negligence, comparative negligence, Maryland

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