Wednesday, July 10, 2013

Contributory negligence law is a "dinosaur" says MD judge

Only Maryland, Virginia, Alabama, North Carolina and the District of Columbia have a law that states that if a person is injured and is only partially at fault, they cannot recover any damages if the other party is mostly at fault. This law is commonly referred to as contributory negligence. All other states use the much more fair comparative negligence which allows for comparative damages to be assessed rather than an all or nothing determination as in contributory negligence.

A Maryland court recently upheld their contributory negligence law, stating that they would not change the law since the MD legislature has refused to do so in 21 attempts over a 16 year period. One of the dissenting judges called the law a dinosaur.

Virginia cyclists have debated trying to change the law as it has been used against cyclists in crashes with motorists. However, it would require fighting significant support for retaining the law by the business community. A rep for the National Federation of Independent Business thinks comparative negligence, legal in 45 states, would be bad for business: "abandoning contributory negligence would have only led to uncertainty, rising insurance premiums and an onslaught of frivolous lawsuits for employers."

From the Post article Maryland court upholds contributory negligence law:
In a 5-2 ruling, the Court of Appeals declined to change the law of contributory negligence. Retired Judge John Eldridge noted that attempts to change the law in the Legislature have failed consistently.

“For this court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the court’s long-standing jurisprudence,” Eldridge wrote.

The law was last reviewed by the Maryland court 30 years ago. From 1966 to 1982, the Maryland General Assembly considered 21 bills seeking to change the contributory negligence standard, and none of the measures were enacted.

Judge Glenn Harrell, writing in dissent along with recently retired Judge Robert Bell, compared the law to “a dinosaur.”

“With the force of a modern asteroid strike, this court should render, in the present case, this dinosaur extinct,” Harrell wrote.

Harrell noted that only Maryland, Virginia, Alabama, North Carolina and the District of Columbia still have the law. Harrell wrote that 46 states use a comparative negligence system that reduces the damages an injured person can receive in proportion to his or her degree of fault.

“The all-or-nothing consequences of the application of contributory negligence have long been criticized by scholars and commentators,” Harrell wrote.



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