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Contributory Negligence: Completely Preventing Plaintiff Recoveries

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Posted On 12.19.12 by in Auto Accidents

Maryland is one of five jurisdictions, including Virginia, the District of Columbia, Alabama and North Carolina, that continues to hold onto the old rule of contributory negligence.  Contributory negligence is a complete defense to a victim’s claims in personal injury cases (note—it doesn’t apply in workers’ compensation cases).  If the defendant can prove that the plaintiff was negligent, then the plaintiff loses the case.

How Contributory Negligence Works

Regardless of whether a personal injury lawsuit (like a Maryland automobile accident, slip-and-fall, or other type of injury) is decided by a judge or jury, the defendant may claim that the plaintiff should lose his case because he was contributorily negligent.  This is essentially the defendant stating that, “even though my negligence caused your injury, you were also negligent and your negligence caused your injury as well.”  If the defendant proves that the plaintiff’s negligence contributed to his own injury, even less than 1%, the plaintiff loses the entire case.

An example may help to explain how it works.  This is an issue that comes up frequently in slip-and-fall cases.  Let’s suppose that a store owner has a lawn in front of his store which is directly between the parking lot and his front door.  He knows that most people walk across the lawn.  He also knows that there is decent-sized hole in the lawn, and one or two customers have tripped on the hole.  A customer comes to his store and, predictably, steps in the hole.  The customer’s injuries include a broken ankle.

The customer will allege in his lawsuit that the business owner had a duty to maintain the property and to warn or prevent dangerous conditions.  He will also allege that the business owner knew or should have known about the hole.

One of the property owner’s defenses will be that the customer should have more carefully watched where he was going, or perhaps that he should not have been walking in the grass with flip-flops.

Even if the customer proves his case and the judge or jury believes that the property owner was negligent, he might still lose his case.  If the decision-maker believes the property owner, and finds that the customer failed to properly watch where he was going, and that his failure to pay attention contributed 1% to the accident, then the customer loses his entire case.  It doesn’t matter that the business owner was 99% at fault for the accident.

Now, that’s the law—any amount of contributory negligence means the plaintiff loses his case.  Juries sometimes play a little fast and loose with the law, however (whether intentionally or not, we don’t always know).  If the facts are compelling, a jury might ignore the plaintiff’s contributory negligence, but instead reduce the total damages verdict (that is, the amount of money).  This isn’t always likely to happen, though, because juries are not informed of the effect of contributory negligence.  That is, they are not told that if the plaintiff was negligent, he will lose the entire case.

What Do Other States Do?

Most states have some variation of comparative negligence.  There are three basic types:

  • Type I:  under pure comparative negligence, the plaintiff’s damages are reduced by the amount of his negligence.  For example, if the plaintiff was 10% negligent, he may only recover 90% of his damages.
  • Type II:  one version of modified comparative negligence holds that the plaintiff cannot recover if he was more negligent that the defendant.  So, if the plaintiff was 51% negligent, he would be out of luck.  If he was 50% negligent, he wins.
  • Type III:  another version of modified comparative negligence holds that the plaintiff cannot recover unless his negligence was less than the defendant’s.  The plaintiff loses unless he was less than 50% negligent.

The Future Of Contributory Negligence In Maryland

There is currently a case pending before the Maryland Court of Appeals (the highest court in Maryland) called Coleman versus Soccer Association of Columbia.  It might seem unusual for the Court to agree to hear a case challenging the 160-year-old rule, but there are indications that the Court may be willing to change the law in this area.  The Court recently explored whether a change in the contributory negligence law would be possible through the Rules Committee.  Until now, the only way to change it would have been through legislation, but they issue has deadlocked legislators for years.

The Maryland Court of Appeals has heard arguments on the case, and we are awaiting its decision.  There is no deadline for the Court to rule, but we are betting that the ruling will come by spring of 2013.  We are optimistic that the current contributory negligence rule will be modified to something that is fairer, and which allows a jury to take into account relative fault.

Contact Us

Every case is unique.  We can listen to your story and tell you if contributory negligence might factor into your case. Even if it does right now, there is the possibility that the Maryland Court of Appeals will overturn the law, which means that if you have ever been denied representation because of contributory negligence, your case might have a chance.  Contact our personal injury lawyers at 1-800-776-4529, or send us some brief information about your claim through our online portal.

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