There are not many civil law topics worthy of a post on a criminal law blog, but the revival of the contributory negligence debate is one topic that deserves an exception. The Maryland civil justice system is one of four states plus Washington D.C. that uses the contributory negligence standard in all civil lawsuits. The contributory negligence standard bars recovery for a party that contributed in any manner to the accident or injury. If a plaintiff brings a civil lawsuit he or she may not recover a dime if the defense lawyers show that the plaintiff was negligent. For example, in a pedestrian accident case if the defense lawyer that represents the driver of the vehicle that hit the pedestrian shows that the pedestrian negligently ran across the street, then the pedestrian may not legally recover any damages. Even if the plaintiff’s lawyer has shown the driver who caused the accident was speeding and driving recklessly.
Most states use the comparative negligence standard, which allows the plaintiff to recover damages even if he or she was negligent in causing the accident or injury. If the jury finds that the plaintiff deserves a verdict, the jury will be instructed to subtract their award of damages based on the percentage of the plaintiff’s negligence or fault. If the plaintiff proves $100,000 damages but was 10 percent negligent in causing the accident, then the jury will be instructed to award a verdict of $90,000. The contributory negligence standard does occasionally cross over to the criminal justice system, when there is evidence that the plaintiff of an injury case was under the influence of drugs such as marijuana or prescription medication, or if the plaintiff was driving and drinking alcohol, but not to the level that would rise to DUI. The comparative negligence standard in civil cases is highly favorable to the plaintiff, and Maryland trial lawyers have been fighting to change the standard for years. Maryland trial lawyers argue that the contributory negligence standard is too harsh, and unjustly bars recovery. The trial lawyers also argue that everyday citizens are denied access to the civil justice system, because trial lawyers cannot afford to take on cases that may be thrown out due to the slightest bit of contributory negligence. On the other hand, the insurance companies argue that the contributory negligence system keeps frivolous lawsuits out of the court system, and keeps Maryland insurance premiums in check.
Both the Maryland trial lawyers, and the large insurance companies have logical arguments. There are many cases where a plaintiff should in the interest of justice recovery a monetary settlement from a negligent party, but ends up with nothing due to the contributory negligence standard. But there are also too many civil lawsuits clogging up the civil justice system in comparative negligence states. Regardless of which side has a stronger case, the Maryland Court of Appeals may soon issue an opinion which will either put the issue to rest, or do away with the contributory negligence standard that has been in place in Maryland since 1847. The Maryland Court of Appeals has agreed to hear argument on a case where a 20 year old soccer player was injured when the crossbar of the soccer goal fell on his face at a Howard County school. The jury found that the defendant was negligent in failing to secure the soccer goal, but did not award a verdict in favor of the soccer player because he was found to be partly negligent in jumping up and touching the crossbar. There has been no indication of which way the Maryland Court of Appeals is leaning, but trial lawyers and insurance companies alike will be on edge waiting for the opinion in this potential landmark case.
Benjamin Herbst is a Maryland criminal lawyer and a Maryland personal injury lawyer. Mr. Herbst is available 24 hours a day to discuss an arrest or criminal investigation, or a possible lawsuit for injuries due to someone else’s negligence.