A Sneak Attack on Contributory Negligence?
Jan 14, 2011By Todd Lamb, executive director for MDCALA and Ellen Valentino, Maryland state director for the National Federation of Independent Business
Everyone is familiar with the old proverb: if a first you don't succeed try, try again. Personal injury lawyers have failed many times in attempting to throw aside 150 years of common law and common sense in the Free State - by overturning the doctrine of contributory negligence. After 30 years of legislative failures, there may now be a new approach lurking in the weeds to promote making the change without consulting or including our elected legislators in the process.
For the last century and a half, Maryland has relied on the doctrine of "contributory negligence," which holds that when both parties are negligent, they should be barred from recovering damages from each other. Essentially, it is the application of common sense: people who cause their own injuries shouldn't be rewarded. It has also been a barrier against the kind of excessive litigation that threatens small businesses and property owners in most other states.
Recently, Chief Judge Robert M. Bell wrote a memorandum to the Chair of the Judicial Rules Committee requesting a "Study and Recommendations Regarding Contributory Negligence, Comparative Fault, and/or Joint/Several Liability." This request is unusual for several reasons. First, the legislature has studied and debated this issue countless times since the 1960's and has been consistent in its unwillingness to change the standard. Secondly, Judge Bell asked the committee to determine "whether, in the Committee's view the court could effect that change by Rule, as opposed to judicial decision."
Traditionally the Rules Committee's role in rulemaking has been to oversee procedural changes in our state's courts. Making a change to comparative fault would be a substantive change - a de facto change in the law - which ought to be done by the people's representatives in the Legislative.
By abandoning the doctrine in favor of "comparative negligence," the court would allow individuals to file lawsuits and recover damages even if their own negligence contributed their harm. The result would be an explosion of lawsuits and small businesses would be the targets.
Consider a New York Times report of a woman who was awarded $14.1 million by a jury several years ago because she was hit by a subway train while attempting to commit suicide by lying on the tracks. Obviously, she contributed to her own injuries. Under Maryland's current standard taxpayers would not have to pay for this jackpot award. If comparative negligence is adopted, however, it will be open season on taxpayers and small businesses.
Making it easier for personal injury lawyers to file lawsuits has serious consequences for taxpayers, small businesses, consumers and the economy. If a looser standard is adopted, the cost of litigation will be passed on in the form of higher prices. Predatory lawsuits would be especially harmful to small business owners as well, many of whom cannot withstand the cost of defending against or losing even one frivolous case.
The broader effects would be negative as well. Maryland's economy is still struggling. Changing the rules to encourage more lawsuits against businesses will have a chilling effect that will cost of jobs and investment.
A doctrine that abandons the principle of personal responsibility, costs jobs, punishes consumers and small businesses, and increases frivolous litigation has no place in Maryland. We hope any consideration toward making such a dramatic change will take place where it belongs - in our legislature.
Todd D. Lamb is the executive director of Maryland Citizens Against Lawsuit Abuse. For more information, visit https://webmail.nfib.org/exchweb/bin/redir.asp?URL=http://www.mdcala.org/. Ellen Valentino is the Maryland State Director for the National Federation of Independent Business. For more information, visit www.nfib.org/maryland.
