Is it Time to Move Contributory Negligence Laws Out of the Bike Lane?

by Matthew J. Focht
October 28th, 2016

Maryland and the District of Columbia, along with Virginia, North Carolina, and Alabama, continue to adhere to the minority rule of tort causation known as “contributory negligence.”  “Contributory negligence, if proved, is a complete defense that bars a plaintiff’s recovery in a negligence action.” Warsham v. Muscatello, Inc., 985 A.2d 156, 167 n. 10 (Md. App. 2009). Contributory negligence has been defined traditionally as the failure on the part of the plaintiff to observe ordinary care for [his or her] own safety. Kasten Construction Co. v. Evans, 273 A.2d 90, 92 (Md. 1971); Menish v. Polinger Co., 356 A.2d 233, 236 (Md. 1976). At its heart, contributory negligence is “the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do under the circumstances.” Potts v. Armour & Co., 39 A.2d 552, 556 (Md. 1944). “Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident; otherwise, the negligence is not contributory.” Batten v. Michel, 292 A.2d 707, 711-12 (Md. App. 1972).  In other words, if the plaintiff contributes even slightly (even by so little as 1%) to the happening of his or her injury, he or she is absolutely barred from recovery.

“The burden of proving contributory negligence is on the defendant.” Reiser v. Abramson, 286 A.2d 91, 93 (Md. 1972). It is important to stress that “[i]t is not every action on the part of a litigant which an opponent by way of ‘second guessing’ or hindsight may successfully label as contributory negligence.” Rogers v. Frush, 262 A.2d 549, 552 (1970).  “[I]n measuring contributory negligence, the standard of care to be used as the criterion is that of an ordinarily prudent person under the same or similar circumstances, not that of a very cautious person.” Menish, 356 A.2d at 236.

The four other jurisdictions applying contributory negligence have a body of case law generally similar to that found in Maryland.  The remaining jurisdictions use a more modern doctrine known as “comparative negligence.”  Under comparative negligence, the jury is asked to assess the relative degree of fault between the plaintiff and the tortfeasor and to reduce their award accordingly, so long as the plaintiff is less than 50% at fault.  For example, if the jury finds that the tortfeasor was 75% at fault for an occurrence, with the plaintiff being 25% at fault, and there is an award of $100,000 in damages, the plaintiff will recover $75,000.  If the plaintiff is more than 50% at fault, he or she cannot recover for his or her injury.

The harsh nature of the contributory negligence rule affords the defendant a substantial (and unearned) advantage in a tort case.  Indeed, any number of cases in the contributory negligence jurisdictions are simply never pursued because of some degree of perceived potential contributory negligence.  Another percentage of cases end in defense verdicts, notwithstanding a high percentage of culpability on the part of the tortfeasor. 

The Maryland Court of Appeals indicated in Coleman v. Soccer Association of Columbia, 69 A.3d 1149 (Md. 2013) that any abrogation of the contributory negligence doctrine in Maryland will have to come from the General Assembly, which has shown little inclination to do so to date.

On the other hand, the District of Columbia has moved at least somewhat away from the contributory negligence doctrine.  On October 13, 2016, Mayor Muriel Bowser signed the “Motor Vehicle Collision Recovery Act of 2016.”  This legislation enables pedestrians and cyclists to recover up to 100% of their damages arising out of a collision with a motor vehicle, so long as the pedestrian or cyclist is less than 50% at fault for the happening of the accident[1].  In signing the law, Mayor Bowser said that “[o]ur streets are made for everyone and the Motor Vehicle Collision Recovery Act of 2016 sends a strong message that pedestrians and cyclists are welcome in the District.  This legislation gives much-needed legal protection to more commuters and more equity to the streets of D.C.[2]

In considering the new D.C. law, it should be noted that it does not eliminate contributory negligence in all cases.  Contributory negligence still applies in all other types of tort cases (such as slip and falls, most notably).  Rather, the new statute removes contributory negligence as a consideration in those limited cases where a pedestrian or a cyclist is struck by a motor vehicle and the pedestrian or cyclist is found to be less than 50% at fault for the happening of the accident.  Interestingly, the statute does not include a comparative negligence provision reducing the amount recoverable by the plaintiff based on his or her negligence.  Even if the plaintiff is 49.9% at fault for the happening of the accident, he or she will still recover his or her full measure of damages.

While the Motor Vehicle Collision Recovery Act is a strong first step toward ending contributory negligence in the District of Columbia, it remains to be seen whether the District of Columbia City Council has any interest in further reducing the scope of the contributory negligence law, or in eliminating it all together.    

 

 

 

Matt Focht is a trial lawyer in the firm’s Personal Injury practice group. He helps individuals who have been seriously injured in avoidable accidents recover the compensation they deserve in litigation before state and federal courts throughout Maryland and the D.C. area. Matt has deep experience in managing a broad range of high-stakes personal injury matters on behalf of victims and surviving family members, including automobile accidents, wrongful death cases and a variety of other serious accidents caused by negligence.

Contact Matthew Focht

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Disclaimer

The JGL Law Blog is made available by the Firm and/or the law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law. The JGL Law Blog is not designed to and does not provide specific legal advice. Use of, or comments on, this Blog does not create an Attorney Client Relationship with the Firm or any of the authors of the Blog Posts.

This blog is for general informational purposes only. Joseph, Greenwald & Laake, PA is a law firm and some of the information on the blog relates to legal topics. Joseph, Greenwald & Laake, PA does not offer or dispense legal advice through this blog or by e-mails directed to or from this site. By using the blog, the reader agrees that the information on this blog does not constitute legal or other professional advice and no attorney-client or other relationship is created between the reader and Joseph, Greenwald & Laake, PA or its attorneys. The blog is not a substitute for obtaining legal advice from a qualified attorney licensed in your state. The information on the blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date. While the blog is revised on a regular basis, it may not reflect the most current legal developments. The opinions expressed at or through the blog are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. The JGL Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

To ensure compliance with requirements imposed by the U.S. Internal Revenue Service in Circular 230, we inform you that any tax advice contained on this site (including any links provided) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication.

˅