House Considers Contributory Negligence Bills

As previously reported on Conduit Street, the Maryland Court of Appeals is considering a case that could change the common law fault doctrine in Maryland from contributory negligence to comparative fault (also referred to as comparative negligence).  Such a change would have significant liability and cost ramifications for local governments and businesses.  In anticipation of a possible court ruling, the House Judiciary Committee heard two bills on March 6, HB 1156 and HB 1182, that take different approaches on addressing the comparative fault issue.

HB 1156 would formally codify and preserve the contributory negligence doctrine, contingent on a ruling by the Court that would change the common law to a comparative fault doctrine.  HB 1182 would form a task force to study whether Maryland should move to a comparative fault system and if so, what other important statutory changes would need to be made to maintain a balanced liability system.

While not taking a specific position on the approaches proposed by either bill, MACo submitted a position statement that strongly supported maintaining the contributory negligence system.  In its testimony, MACo argued that the decision whether to move the state to a comparative fault system lies with the General Assembly and that if the state were to adopt a comparative fault system, there are numerous ancillary statutory provisions that would also have to be addressed:

MACo believes that the decision of whether to change Maryland’s fault model properly rests with the General Assembly. The issue of whether to adopt a comparative fault model has been before the General Assembly many times in the past, with the last being in 2007 when the Legislature considered House Bill 110 and Senate Bill 267… In each instance the Legislature has declined to switch from the contributory negligence standard. …

If Maryland were to consider moving to a comparative fault model, the change would also require modifications to statutory law in addition to the common law. In order to make contributory negligence a fair model for both plaintiffs and defendants, the General Assembly has enacted statutory provisions simplifying plaintiff recovery (including joint and several liability and the joint tortfeasor statute and exceptions to the contributory negligence rule (including the seatbelt rule, drug user against drug dealer, and others).  While these ancillary statutory provisions work well and provide balance under a contributory negligence system, they would create a significant imbalance that would favor the plaintiff’s side under a comparative fault system.

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