General Assembly Could Look at Comparative Fault

A Daily Record editorial (2018-12-13) called for the Maryland General Assembly to study the state’s contributory negligence liability system and consider whether to change the system to one based on comparative fault. Any changes to the existing system could have significant cost and policy implications for county governments if certain ancillary legal policies are not also addressed.

A pure contributory negligence system holds that a plaintiff cannot recovery damages from a defendant if the plaintiff was in any way at fault in causing the plaintiff’s injury. While a contributory negligence system would appear to heavily favor defendants, Maryland has adopted several policies that places plaintiffs on equal footing. These policies include: (1) “joint and several liability” where a plaintiff can recover all damages from one negligent defendant even when multiple defendants were negligent; (2) the “last clear chance doctrine” that provides a plaintiff who is negligent may still recover against a negligent defendant if the defendant had one last chance to avert both the defendant’s and plaintiff’s negligence; and (3) seatbelt laws that prevents a judge or jury from considering whether a plaintiff was wearing a seatbelt when determining liability for automobile accident-related injuries.

In contrast, a comparative fault system allows a plaintiff to recover damages from defendants based on the percentage of their negligence. Thus, if a jury determined that the plaintiff was 30% at fault, Defendant A was 45% at fault, and Defendant B was 25% at fault, the plaintiff could recover 45% of the total damages from Defendant A and 25% of the total damages from Defendant B.

The editorial noted that Maryland is one of five states that continues to have a contributory negligence system (the four others being Alabama, North Carolina, Virginia, and the District of Columbia) and urged the General Assembly to consider the issue during the new 4-year term. The editorial also noted that the Maryland Court of Appeals upheld the State’s contributory negligence system in Coleman v. Soccer Association of Columbia, 432 Md. 679, 69 A.3d 1149 (2013), holding that the General Assembly and not the courts had the power to change the system. From the editorial:

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.

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.

The editorial also referenced the position of the Maryland Association of Defense Trial Counsel, which has argued that if Maryland were to move to a comparative fault system, the new system would have to: (1) address all fault-based torts, not just negligence; (2) abolish joint and several liability; and (3) adjust other statutes or policies that were created based on contributory negligence.

MACo’s longstanding position mirrors that of the Maryland Association of Defense Trial Counsel. While not inherently opposed to comparative fault, MACo is opposed to adopting comparative fault without abolishing joint and several liability, addressing the last clear chance doctrine, and other contributory negligence statutes or policies, such as the seatbelt law. If these are not addressed, then the State will have a system that significantly favors plaintiffs and puts “deep pocket” defendants like local governments at a distinct and unfair disadvantage.

Consider this example under a comparative fault system with joint and several liability. A plaintiff is injured in a car accident and sues the driver of the other vehicle and the county government due to poor road conditions. The court determines the defendant driver is 90% negligent and the county government 10% negligent. However, under joint and several liability, the county government could be responsible for paying 100% of the damages, even though it was only 10% at fault.

The General Assembly has reaffirmed our contributory negligence system approximately 40 times since 1966. MACo believes any potential changes need to be carefully studied and include inextricably linked supporting policies, like joint and several liability.

Learn more about comparative fault and other potential legal issues that could be considered during the upcoming Session at the MACo 2019 January Winter Conference panel “Legislation, Litigation & Legitimacy: Key Legal Issues for the 2019 Session.” The panel will take place on Thursday, January 3, 2019, at the Hyatt Regency Chesapeake Bay Resort in Cambridge, Maryland.

Learn more about MACo’s Winter Conference: