On April 15 the Judiciary’s Standing Committee on Rules of Practice and Procedure released its report on the adoption of comparative fault in Maryland. As previously reported on Conduit Street, Chief Judge Robert Bell requested the Committee to examine the feasibility of adopting the comparative fault standard through the Judiciary’s rule-making process.
The request prompted concern from various business and governmental groups, including MACo and legislation was introduced during the 2011 Session to adopt the current common law contributory negligence standard prior to the release of the Committee’s report. Conduit Street summary of the legislation. While MACo did not take a position on the legislation, it restated its long-held opposition to moving to a comparative fault system.
Ultimately, the report concludes that the Judiciary lacks the power to change the contributory negligence standard through its rule making process:
The only separation-of-powers constraint on the Court’s general rule-making power is that the scope of that power is limited to matters affecting practice, procedure, and judicial administration. Respectfully, the Committee believes that the doctrines of contributory negligence, comparative fault, and at least some of the various associated doctrines and legal principles associated with those doctrines are matters of substantive law that do not fall within the ambit of practice, procedure, or judicial administration. To the extent they are common law doctrines, they can be changed by judicial decision, as they have in several other States, but not, in the Committee’s view, by Rule. A particular impediment would be an attempt, by Rule, to alter the provisions of the Uniform Contribution Among Joint Tortfeasors Act or the third-party action provision of the Workers’ Compensation Act.
The report also summarizes the comparative fault and contributory negligence standards used by other states, how those standards were adopted, and how related legal doctrines like joint and several liability were treated.