After a four year hiatus, probably induced by the accurate perception the former Governor Ehrlich’s unabashed “pro business” philosophy would have surely motivated him to veto any such legislation summarily if it was passed and presented to him, the proponents of change in the law of Maryland and its civil justice systems have this year again asserted themselves. A legislative proposal to change Maryland’s tort’s laws current operating system of “contributory negligence”, which bars the recovery of damages by any plaintiff, who is at all responsible as a result of his own ”contributory negligence”, for an event which injures him or his property to a “comparative” fault approach has been presented to the 2007 General Assembly. It will be considered fully by the heavily Democratic members of the Maryland Senate and House many whom were strongly supported by the Maryland Trial Lawyers and other advocates of this change in the last election. Absent from their deliberation will be the previous specter of a looming veto and a subsequent fight to override it.
Whether the supporters of this proposal to shift from the state’s Contributory Negligence standard to the Comparative Negligence standard like it or not however, consideration of this dramatic change in the tort law of this state will no doubt be accompanied by companion proposals to modify or even eliminate Maryland’s current system of “joint and several liability”. More than one author and Law Review article have noted that legislatures and in two states, Oklahoma and Tennessee, appellate courts, have taken a “marked activist approach” to the issue of joint and several liability once a shift to comparative negligence has occurred.
There are currently only four of the fifty states who have not adopted some system of comparative fault. They are Alabama, North Carolina, Virginia and our own state, Maryland. Contrast that with 1950 when there were only sates which had adopted comparative fault. Then notice that between 1950 and 1995 thirty-four of the now forty-six comparative fault jurisdictions amended or completely eliminated their law on joint and several liability through legislative action or as noted above in two states, case law.
The impact of any shift from contributory negligence to a comparative fault standard coupled with a modification or elimination of the doctrine of joint and several liability will no doubt have a profound impact both on the manner and frequency in which plaintiffs are able to obtain compensation, as well as the size and frequency of their lawyers’ contingency fees. It will also affect the liability of defendants and the size of the verdicts which ultimately must be paid out particularly for large businesses that under a system of joint and several liability were targeted because they had the deep pockets to pay the full price of multiple defendants negligence and sometimes did where the other defendant(s) were impecunious.
The precise degree of change in both the size and frequency of the recoveries that plaintiffs would obtain under a “comparative negligence” approach instead of the current “contributory negligence” approach is not capable of being completely and accurately predicted. This accounts for the current division among both the “Plaintiffs Bar” and the “Defense Bar” over the wisdom of the shift. Although most of the “Plaintiff Bar” favors a shift to “comparative negligence” approach, some of their support disappears when it is presented in conjunction with the whole or even partial elimination or modifications of “joint and several liability”. Conversely, most of the “Defense Bar” appears to be opposed to a shift to comparative negligence until the elimination of “joint and several liability” is thrown into the legislative pot with it and stirred in a manner such that it can’t be extracted. Then the prospective increase in the total amount of dollars which will paid out and the increased insurance premiums to cover the predicted risk of doing so that would probably accompany a change from contributory negligence to comparative fault are mitigated by the very real possibility that particularly big businesses will be able to reduce the dollars they will have to pay out for the negligent acts of other less affluent tortfeasors.
The bottom line to this is that there will be a very interesting debate in the General Assembly which I predict will not be resolved by the passage of legislation before the 2007 Session ends in April. The Maryland Court of Appeals has expressly emphatically and repeatedly deferred on these issues to the legislative branch of government. But it too will change with the three new members in the next 15 months. Whether that change will bring with it a willingness to change the law and Maryland’s civil justice system by judicial action cannot be predicted with certainty. This writer thinks it is unlikely notwithstanding the fact that appellate courts in other states such as New York have found aspects of contributory negligence to be “troubling” using such phrases as “The doctrine of contributory negligence is not just….It is at once unfair and not well founded in legal principle”…”A chronic invalid who will not die”.
Concomitantly, along with that sentiment goes the proposition put forward by several writers that “comparative negligence recognizes the ability of a court to determine and apportion damages in relation to harm caused. Joint and several liability, in contrast, presume the inability to divide fault among the parties. To continue to hold multiple defendants liable for the total amount of damage when a mechanism for apportioning damages is available contravenes fundamental fairness”.
What alternatives are there? I will explore those in subsequent columns. The issues of joint and several liability and comparative negligence clearly involve not just the tort system but also economic and moral issues that, as Eric S. Namrow pointed out some years ago, are fundamental issues of fairness, deterrence, compensation, cost spreading and risk shifting, essential social and economic principles of the entire community. Shouldn’t the entire range of options be considered?