Considering 'Comparative Fault' In Md.

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1 Portfolio Media, Inc. 860 Broadway, 6th Floor New York, NY Phone: Fax: Considering 'Comparative Fault' In Md. Law360, New York (May 10, 2011) -- In November of 2010, the chief justice of Maryland s highest court, the Maryland Court of Appeals, requested information and advice about the legal doctrine of comparative fault and associated principles. While different states define comparative fault differently, in general it is a legal doctrine that allows a plaintiff to recover damages from a defendant in a tort lawsuit (for example, in a negligence claim) even if the plaintiff failed to exercise ordinary care for his or her own safety. Currently, Maryland courts follow a different principle called contributory negligence, which generally prevents a plaintiff from recovering damages from a defendant that has harmed him or her if the plaintiff also acted in a negligent manner. The court has not yet indicated how it will proceed, but a change to Maryland s current contributory negligence regime could have immense ramifications for defendants and plaintiffs in cases applying Maryland law. The Report of the Committee The court s request for information was addressed to the Maryland Rules Committee s Standing Committee on Rules of Practice and Procedure and included a request that the committee consult with other groups that have shown an interest in the matter, such as the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association. On April 15, 2011, the committee submitted its special report, entitled Aspects of Contributory Negligence and Comparative Fault to the court. The report recounts the history of contributory and comparative negligence, as well as the methods and effects of various states changes to their common law.[1] In addition, the committee analyzed whether the court, by way of its judicial rulemaking ability, could jettison contributory negligence and replace it with any of several variations of comparative fault applied in other states. The committee focused particularly on whether such a sweeping change could be made by judicial fiat promulgating a new Maryland Rule with prospective application in all future cases or whether such a change could only be done through a holding in an appellate opinion. The

2 committee indicated that it would not make any recommendations about whether the court should adopt the doctrine of comparative fault, noting that the court had not asked for input on this issue. As mentioned above, instead of comparative fault, Maryland courts currently follow a form of the doctrine of contributory negligence, under which a plaintiff who fails to observe ordinary care for his own safety is * + barred from all recovery, regardless of the quantum of a defendant s primary negligence. *2+ Under traditional contributory negligence principles, a finding that the plaintiff s negligence was even 1 percent responsible for the harm that he or she suffered is an absolute bar to the plaintiff s recovery of damages for that harm.[3] Comparative fault, by contrast, does not completely prevent a negligent plaintiff s recovery. Instead, the trier of fact evaluates how much the plaintiff s negligent conduct contributed to bringing about the harm suffered as compared to how much the negligence of the defendant(s) contributed to the harm. The total amount of damages is then apportioned among all responsible parties, including the plaintiff.*4+ The plaintiff s share of the fault thus reduces the ultimate recovery, and the court or jury is asked to hold different defendants liable for the remaining damages based on how much each defendant s negligence contributed to the plaintiff s harm. For example, if a plaintiff and three defendants are each found 25 percent at fault in a trial with a $1,000 damages verdict, the plaintiff may be entitled to recover $250 from the three defendants for a total of only $750. A variation of comparative negligence, known as the modified comparative fault doctrine, bars all recovery by the plaintiff if his or her level of fault reaches 50 percent in some states and over 50 percent in other states.[5] The Committee s Findings The committee attempted to determine the effect that a change from contributory negligence to comparative fault would likely have in Maryland based on the experiences of other states around the country. Due to the lack of reliable studies on the issue, the committee reached no conclusion as to the effect such a change would have in Maryland. One measure of the efficacy of comparative fault in tort litigation, however, may be that none of the 46 states that implemented comparative fault have returned to the doctrine of contributory negligence. The committee observed in the report that the principle of joint and several liability factors into any debate over whether to change from contributory negligence to comparative fault. In a pure joint and several liability state such as Maryland, a plaintiff may recover for all of his or her damages from one defendant, even if multiple tortfeasors contributed by their negligence to the harm suffered. The defendant from whom the plaintiff recovers his or her damages may then seek contribution from the other tortfeasors pursuant to the Maryland Contribution Among Joint Tortfeasors Act (Maryland Code, Courts and Judicial Proceedings et. seq.). In general, this statute provides for contribution

3 on a pro rata basis rather than on degree of fault basis. In a comparative fault jurisdiction, however, a determination of the liability of each defendant is made by the finder of fact. Therefore, any calculation of a defendant s liability is based on each defendant s adjudicated percentage of the fault, not merely on a computation of the value of each equal share based on the number of (solvent) joint tortfeasors. Comparative fault systems do not typically allow a plaintiff to recover the entire amount of their damages against one defendant (the essence of joint and several liability).[6] Thus, limitations on joint and several liability tend to reduce or eliminate the need for a defendant s right of contribution against its co-defendants. In comparative fault states, in situations where multiple defendants are held liable, a plaintiff may only recover a portion of his or her damages from each defendant, based on the defendant s share of liability, and there is typically no basis for a defendant to seek contribution from other defendants found liable in the decision. In the report, the committee concluded that the court s ability to create rules was limited to matters affecting practice, procedure and judicial administration. The committee s view was that the doctrines of contributory negligence and comparative fault, as well as associated principles such as joint and several liability, were matters of substantive law that do not fall within the ambit of practice, procedure, or judicial administration. The committee indicated that contributory negligence and its associated principles may be changed by judicial decision (i.e. in an opinion of the court after a properly raised challenge), but not by the court s more limited rulemaking authority. The mere possibility that an appellate court*7+ could judicially abrogate Maryland s common law doctrine of contributory negligence and replace it with some form of comparative fault prompted a group of nineteen delegates of the Maryland General Assembly to introduce the Maryland Contributory Negligence Act in the 2011 Legislative Session. This bill would codify the common law doctrine of contributory negligence to prevent any future modification or change to comparative fault by the court. The Contributory Negligence Act was neither passed out of the House Judiciary Committee nor was it considered by the Maryland Senate. Past attempts to move Maryland from the contributory negligence regime to the comparative fault doctrine have also failed. However, there may be other future proposals in the Maryland General Assembly to maintain contributory negligence or to change to comparative fault. Arguments For and Against a Change From a defendant s perspective, there could be advantages and disadvantages of a switch to a comparative fault regime. The possibility exists that some defendants are, in fact, ill-served by the common law contributory negligence doctrine as it exists in Maryland.[8] Juries may be less likely to find a plaintiff contributorily negligent when they are informed in the jury charge that a finding of contributory negligence will completely prevent the plaintiff's recovery. In such a situation, the jury may come to a compromise verdict, awarding reduced damages instead of finding the defendant(s) not liable for the harm incurred by the plaintiff, even if the plaintiff clearly

4 contributed to the harm he or she suffered, in order to compensate a sympathetic, albeit negligent, plaintiff using the assets of a deep-pocketed defendant. Of course, this type of jury nullification can occur under any liability regime. A change to a pure comparative fault system would not necessarily address this problem, because such a system would still allow a plaintiff who has exhibited more fault than the defendant (or all defendants combined) to recover against them. Similarly, even if Maryland were to change to a modified comparative fault system, juries could still find that a sympathetic plaintiff, who was clearly the primary cause of the harm he or she suffered, was only responsible for 49 percent of the fault for the harm, allowing the sympathetic plaintiff to recover something against the defendant(s) despite the plaintiff s causation of the harm. In addition, many defendants support the winner-take-all (or lose-all) approach under the existing contributory negligence standard. Under contributory negligence, it is sometimes possible for a defendant to obtain summary judgment in a case involving the undisputed negligence of a plaintiff, even if the plaintiff s negligence was only a small factor in causing the harm suffered. Because the question of how much each plaintiff and defendant were at fault is a question of fact, under the comparative fault system, the odds of garnering a dispositive pretrial motion plunge precipitously. Thus, juries will more frequently need to make the difficult decision of whether to send a sympathetic and gravely injured, albeit negligent, plaintiff home empty-handed. Some defendants, however, may benefit from a shift to comparative fault. Currently, under the contributory negligence doctrine, Maryland courts would not typically instruct a jury that they may reduce a negligent defendant s liability if they find that the plaintiff negligently contributed to his or her harm. Under the comparative fault regime, if a jury finds that a plaintiff was responsible for 50 percent of his or her injuries, the jury can, in effect, halve the verdict without having to engage in jury nullification. This could reduce the risk that a jury might refuse to find contributory negligence on the part of a plaintiff, because they feel that the negligent plaintiff deserves to get something, with the result that the defendant must pay for all of the harm suffered by the plaintiff, not just a portion of it. For example, in an automobile tort case, if a speeding plaintiff suffered injuries in a collision involving a defendant who ran a red light, the defendant would certainly prefer a jury find the defendant 50 percent liable, thereby cutting the verdict in half, instead of finding the defendant fully liable for all of the harm suffered by the plaintiff. Also, some defendants may favor the comparative fault system, in which they are less likely to be jointly and severally liable for the damages caused by all defendants and less likely to have to pursue other defendants for contribution. The considerations for and against a change to the comparative fault system are numerous and involved. It is our hope that the debate will develop on an informed basis. Conclusion

5 The court s recent request and the committee s report have re-energized the debate in Maryland about whether and how to change to a comparative fault system. If such a change is on the horizon, some litigants may not have as much to fear as they might expect, as long as comparable changes to the application of joint and several liability keep pace with changes to underlying legal doctrine. On the other hand, the view of those who maintain that if it ain t broke, don t fix it also has validity. Some would argue that a legal doctrine that has been applied in Maryland courts for well over a century could not possibly be as broken as others assert. --By Daniel Wang (pictured) and Christopher J. Madaio, Miles & Stockbridge PC Dan Wang and Chris Madaio are both associates with Miles & Stockbridge in the firm s Baltimore office. The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] 170th Report of the Standing Committee on Rules of Practice and Procedure, April 15, [2] Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 451 (1983). [3] Only four states (Maryland, Virginia, North Carolina, and Alabama) and the District of Columbia still apply the common law contributory negligence doctrine. *4+ Twelve states and three territories have adopted this doctrine, known as pure comparative negligence. [5] Thirty-four states have adopted some form of modified comparative fault. [6] The Committee pointed out that some comparative fault jurisdictions allow joint and several recovery when defendants are found to have acted in concert or if their actions resulted in environmental damages. [7] Maryland has a two-tiered appellate court structure. [8] Other defendants and their insurers (and even some plaintiffs) champion the value of pure contributory negligence, and the authors of this article take no position as to whether the shift to comparative fault is needed or is universally beneficial to defendants. All Content , Portfolio Media, Inc.