Sunday, July 14, 2013

Maryland Court of Appeals decides to remain in the dark ages; retains contributory negligence

The Court of Appeals of Maryland has issued an opinion showing its lack of vision about tort law in the twenty first century.  Or the twentieth.  Maryland is one of only a handful (I think the number is five) of jurisdictions that still adhere to the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  Other than those handful of jurisdictions, every single other jurisdiction in the US has abandoned it in favor of some version of the much better approach based on comparative negligence.

Yet, in a case that gave the court the chance to make the change and join the modern world, the Court of Appeals has decided to keep its 19th century approach to torts.  Even though the court admitted that the court had the authority to change the principle because contributory negligence is a court created principle that had not been embodied in Maryland statutes, it decided not to do it because the legislature had not done it.  Yes; that's it.  There is no other reasoning behind the decision.  The opinion comes down to the conclusion that "The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence."

In other words, the court decided not to exercise the authority it admitted it had because the Legislature has been unable to get its act together to do the right thing.  Given what we all know about the legislative work in recent years, this view is shortsighted, to say the least.  Let's hope the case goes to the state's supreme court and that the justices of that court have more vision and wisdom and the guts to do the right thing. 

The case is called Coleman v. Soccer Association of Columbia.  The opinion is weak and unconvincing and, bottom line, takes the wrong position on the policy in question. Much better reading is the dissenting opinion by Judge Harrell which starts as follows:
Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.
As you would expect, the backward thinking thinktanks like the American Tort Reform Association are happy with the decision of the court (here).