The Beginning Or The End Of Comparative Negligence

On July 9, 2013, six out of seven judges sitting on the highest court in the State of Maryland, The Court of Appeals, to decide the case of James Coleman v. Soccer Association of Columbia, filed an Opinion in which they collectively and minimally “conceded” that “a system premised on comparative negligence for apportioning fault appears to be a more equitable system of determining liability and a more socially desirable method of loss distribution.”  That language of the Concurring Opinion of four of the seven judges presiding in the case was authored by Judge Clayton Greene and joined by Judges Lynne Battaglia, Robert McDonald and Retired Judge Irma Raker recalled to her former court in this case to replace one of the two sitting Court of Appeals Judges who recused in the case, Judge, now Chief Judge, Mary Ellen Barbera and Associate Judge Sally Adkins.

The Majority Opinion was written by retired Court of Appeals Judge John C. Eldridge who replaced a recused judge.  His opinion was joined by the other judges in their concurring opinion. The concurring judges however wrote separately through Judge Greene to express their separate view that comparative negligence is the more “equitable and socially desirable” system notwithstanding their agreement with Judge Eldridge that if it is to be changed that the legislature not the Court of Appeals should do so.  Judge Eldridge, while acknowledging the scholarly and practical criticisms of the doctrine of contributory negligence, did not opine on their merits either to concur with the criticism or defend the doctrine.  Instead he focused on the historical and legal (stare’ decisis) justifications for deferring to the legislature for any action to change it.

The Dissenting Opinion, authored by Senior Court of Appeals Judge, Glenn T. Harrell, Jr. and joined by the now retired, former, Chief Judge Robert M. Bell was far stronger in its view that “a future majority of this Court . . . will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”  For that reason Judge Harrell expressly chose to write the justification for that future court to do so and thereby conclude its deference to the legislative branch of government as to the timing, scope, and form of replacing the doctrine of contributory negligence with a system of comparative negligence.

Judge Harrell expresses in entertaining fashion the annoyance of the dissenters with the majority’s decision to elevate their duty to exercise “judicial restraint” based on the highest court’s history of jurisprudence on this subject and the principle of stare’ decisis over their nearly unanimous expressed view that a system of comparative negligence is “more equitable and socially desirable method of loss distribution” by resorting to the natural sciences of paleontology and geology. These physical sciences cleverly put into scientific and historical context the dissenters’ view of the error of the misplaced priority of the majority, which at least for a while results in the preservation of a legal dinosaur, “contributory negligence.”  However the social sciences of psychology, sociology, political science, economics and even anthropology are more likely to provide an explanation of both the refusal of the majority of the Court of Appeals in this case to act affirmatively to change the common law in this state which ironically their predecessors established in 1847 despite their unanimous acknowledgment of the authority to do so as well as the 165 year history of inaction by The Maryland General Assembly.  That 165 year history includes the last 50 years when it considered and rejected over 30 bills to change the contributory negligence standard.

So where are we?  It is clear that there is virtual unanimity (6 out of 7/maybe 7 out of 7) on the highest court in this state that comparative negligence is a “more equitable and more socially desirable” system of risk allocation and loss distribution then our present system.  There also appears to be a strong consensus (5 out of 7) that if the doctrine of contributory negligence is to be changed in the foreseeable future it will have to be done by the Maryland General Assembly not the Court of Appeals.

In the interest of accuracy and fairness, it is important to note that two of the current members of the Court of Appeals, the now Chief Judge, Mary Ellen Barbera, and Judge Sally Adkins did not participate in the recent decision of the Court of Appeals in James Coleman V. Soccer Association of Columbia.  In addition the now retired Chief Judge Robert M. Bell who joined the dissent has been replaced by Judge Shirley Watts.  If Chief Judge Barbera, Judge Adkins and Judge Watts or any combination of at least two of those three judges were to participate in another case where a change from contributory negligence to comparative negligence was sought and the issue preserved, the result could change in an unpredictable way in that the deference to the legislature could ameliorate or even disappear.

That having been said, if there was a betting line at The Maryland Live Casino on when the Court of Appeals will address this issue again, it would be “not less than five to ten years from now”.  So if the issue is to be addressed at all anytime soon, it will be by the Maryland General Assembly.

The conventional wisdom there however is that the votes are not present to make any change.  That means that if the Court of Appeals had mandated a change in the Coleman case from the doctrine of contributory negligence to comparative negligence, the legislature, despite the certainty that some members would try would not have been able to summon the votes to change back.   Conversely there appears not to be sufficient votes in the General Assembly to change Maryland’s current risk management and loss distribution regime from contributory negligence to a comparative negligence system.  So if the advocates of a change want to accomplish that any time soon, they will have to find a way to break through the legislative log jam or wait until after the next election in 2014.

The log jam in the opinion of this writer based on my history dating back to the 1970’s of observing this issue in the General Assembly is caused by the uncertainty bordering on apprehension of even some advocates of change as to how a change of the common law to either a pure or modified comparative negligence standard would generally affect tort liability and insurance law in Maryland.  In particular, the effect on joint and several liability as well as the interpretation of certain statutes which have enacted contributory negligence in certain situations as a matter of law is “feared” as much of what is “unknown” is always feared.

The way to address that concern or apprehension, as the concurring opinion suggests is for the legislature to study and resolve these questions and concerns.  The Court of Appeals noted its desire to “encourage” such a comprehensive study rather than “attempt to force it”.  For them it was a luxury.  For the advocates of change sooner rather than later it is a necessity.

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