Article on Maryland's decision to retain contributory negligence

A couple of weeks ago I criticized the recent decision of the Court of Appeals of Maryland in which it decided to retain the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  I asserted that the majority opinion is weak and unconvincing and that it takes the wrong position on the policy in question.  You can read my post (and get a link to the opinion) here.

Professor Edward Robertson has now published a short but very good article in which he expands on many of the points I made.  I highly recommend the article which is available here.  In it, Prof.  Robertson shows that the court abdicated its judicial duty, and, as I asserted in my original post, the basis for the opinion is weak and unconvincing.  As he explains better than I did, there is simply no legislative or public policy declared by the legislature to which the court has any reason to defer.  He also explains that the opinion creates a perverse incentive for special interests lobbyists and that, again as I suggested, the court ignores the reality of the legislative process which is operates on the basis of an "asymmetrical balance of lobbying interests."

The article makes a number of other great points.  You should read it.  But let me mention just one more.

The court admits that courts are justified in changing the common law when the conditions that resulted in the policy in question have changed.  So, how is it that conditions have not changed in the state of Maryland to the point where a change in the common law is justified?  Forty six other states have decided the change has been justified for a long time.  What makes Maryland different?


Thanks to the TortsProf blog for the link to the article.

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

The Maryland Supreme Court 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 five 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 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, 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 legislative work, this view is shortsighted, to say the least.  

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:

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 right wing/pro defendant thinktanks like the American Tort Reform Association are happy with the decision of the court (here).