Wednesday, July 11, 2012

ATRA urges Maryland Supreme Court not to abandon contributory negligence

Believe it or not there are just a handful (four or five) jurisdictions in the United States that still recognize the anachronistic and inherently unfair doctrine of contributory negligence as a defense, which allows a defendant - regardless of the level of negligence - to escape liability if the plaintiff can be said to have contributed in any way to his or her own injury.  Maryland is one of the few states that cling to that old, nearly universally rejected rule.

Tennessee was the most recent state to abandon contributory negligence and it is now under attack in Maryland.  However, joined by groups representing a variety of employers, physicians, and their insurers, the American Tort Reform Association has submitted a brief  to Maryland’s supreme court urging it to uphold doctrine of contributory negligence. A copy of the brief is available here.

Because of the evident unfairness of the doctrine, almost all jurisdictions have abandoned it and replaced it with some form of comparative negligence.  In all fairness, some of the forms of comparative negligence adopted (the so-called "modified" systems) merely change the threshold point at which the contributory negligence doctrine would apply, but they are still better than the old rule.  So, it is not surprising that this coalition of insurers, physicians and tort reformers want to make sure the law of the state continues to firmly reflect 19th century values. Why?  Again, because it allows them to escape liability.

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