A Primer on Comparative Negligence vs. Contributory Negligence

In my last column, I hailed the revival of the debate during the 2007 Session of the Maryland General Assembly in Annapolis over whether “comparative negligence” should replace “contributory negligence” as the operating system in Maryland’s tort law. That debate will no doubt, based on its history around the country, be accompanied or followed closely by a related dialogue on whether any change from “contributory negligence” to comparative fault system should be tied to the abolition or modification of our law on joint and several liability.

This debate, and the dialogue accompanying it, will not make a lot of sense and the resulting change in Maryland law, if there is one, risks being both unfair and illogical unless the terms are precisely defined and the history of negligence, not only in Maryland but in the United States, is understood.

The legal writers Eric S. Namrow and Gary T. Schwartz both have noted the initial recognition of the affirmative defense of “contributory negligence” in England in 1809. In 1924 it reached the United States. By 1854, Chief Judge Black of the Pennsylvania Supreme Court called the contributory negligence defense a “rule from time immemorial” and then ventured to guess that it was “not likely to be changed in all time to come”.

Chief Justice Black’s prediction did hold true for almost a century notwithstanding criticism from Law School professors and legal writers such as Charles L.B. Lowndes. This criticism appeared conspicuously in the 1930’s and intensified in the 1950’s. These writers, many of whom came from the Legal Realist and Critical Studies Schools of Jurisprudence attributed the adoption of the defense of the “contributory negligence” by 19th century courts and judges to the desire of these judges to protect emerging industry during the Industrial Revolution. These legal realist writers believed the timing of the development of the law of “contributory negligence” was not coincidental. Indeed, as William L. Prosser pointed out in 1953, “the courts found in this defense, along with the concepts of duty and proximate cause, a convenient instrument of control over the jury, by which the liabilities of rapidly growing industry were curbed and kept within bounds”.

Those who now want to scrap contributory negligence fervently point out that the Industrial Revolution has long since ended and with it the need, if it ever existed, to protect rapidly growing industry. They then emphasize, as did Charles L.B. Lowndes, that “unless one is willing to scrap not only the conceptual apparatus of causation but also the basic policy beneath it, it cannot reasonably be said that the contributory negligence of the plaintiff, at least where it is foreseeable, severs the causal tie between the defendant’s misconduct and the plaintiff’s injury”. For these reasons more and more legal writers and courts in many states beginning in the 1950’s and accelerating for the rest of the second half of the 20th century concluded that “contributory negligence was not just unfair but also a legal concept that created “an artificial dichotomy that is at once unfair and not well founded in legal principle”. As a result, more and more states then began to accept some form of “comparative negligence”.

The form or standard of comparative negligence adopted makes a big difference. The first option is a “pure” comparative negligence standard. In this regimen, a plaintiff who is proportionately culpable for his injuries may recover even when his negligence exceeds that of the defendant. Of the 46 states that have moved from contributory negligence to comparative negligence, only 13 have implemented “pure” comparative negligence. The majority of the states, i.e. the rest: 33 to be exact have established “modified” comparative negligence schemes. These are designed to both mollify the “harsh” results of “contributory negligence” and prevent the insurance and economic impacts of “pure” comparative faults system.

Maryland, if it chooses to join the 46 states which have adopted some form of comparative fault, has several models to choose from besides the “pure” comparative negligence format. As Eric S. Namrow has explained, South Dakota enacted the “slightly gross rule”. Under this Rule, a plaintiff’s damages are reduced by the percentage of the plaintiff’s fault. Nine other states have enacted the 49% Rule under which a plaintiff’s own portion of fault will not bar recovery as long as the plaintiff’s negligence is less than that of the defendants, with the plaintiff’s damages reduced according to the extent that his negligence contributes to the accident. Finally, the other 23 states who to date have moved from contributory fault to a comparative fault standard have opted for the 50% Rule. This Rule allows the plaintiff to recover damages only when her negligence is equal or less than the defendants.

There have been a number of studies of the costs associated with changing from a contributory negligence standard to a comparative negligence system. Most of them involved Joseph E. Johnson, a Professor of Business Administration at the University of North Carolina at Greensboro. Professor Johnson compared the costs of insurance from 1984 to 1988 in Maryland with those of Delaware, an arguably similar state, which changed to comparative fault in the 1980’s. Each of these tests had apparent methodological flaws. The most glaring error was not considering the effect of Delaware’s Limited No-Fault statute which skews the results by factoring in only claims for more than $5000, as well as, reducing the frequency calculation due to the no-fault statutes.

Despite these issues, it is clear from these studies that any change from contributory negligence to comparative fault regardless of whether it is to a “pure” comparative fault system or one of the “modified” scheme will result in some increase in total paid losses as well as increased insurance premiums particularly auto insurance premiums. The precise level of increase is difficult, if not impossible, to predict although it appears that the increase will vary directly with the numerical percentage threshold adopted for when a plaintiff can recover when his own negligence is a part of the cause of the accident. More significantly, it also depends on whether “pure” Joint and Several Liability is fully retained or modified in conjunction with the change. If it is then, the calculation of what, if any, additional costs of insurance and payouts become even more problematical. In addition, the ultimate determination of what is fair to plaintiffs and defendants’ using a micro-economic analysis and what is efficient for society utilizing a macro-economic analysis becomes a much more complex and cumbersome undertaking.

My next column will explore the wisdom and effects of eliminating or modifying Maryland’s Joint and Several Liability law in conjunction with a change from contributory negligence to a comparative fault standard. As Howie Mandel would say “Fair or Unfair”…”Deal or No Deal”.

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