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2002 FINAL STATELEGISLATIVE PROGRAM CONTROVERSIAL ISSUE ISSUE: COMPARATIVE NEGLIGENCE SUMMARY: The comparative negligence rule contends that a plaintiff may recover damages in tort actions even if the blame was shared. In contrast, the contributory negligence approach bars recovery by a plaintiff who did not exercise reasonable care and contributed to the harm suffered. A total of 46 states have some form of comparative negligence method, ranging from those with the "pure type" in which a plaintiff may recover damages regardless of the amount of negligence, to those with tighter standards (50% or 49% negligence). Maryland is one of the four states along with the District of Columbia that uses a contributory negligence standard. Although this provision does not appear in the State code, it has been consistently upheld in Maryland courts as an interpretation of common law. The contributory negligence rule does not apply in cases where the defendant's conduct is willful or wanton. Over the past decade and a half, bills to establish comparative negligence in Maryland have been introduced eight times (1988,1993, 1996, 1997, 1998, 1999, 2000, 2001). Comparison of the evolution of these bills indicates the sponsors’ recognition that any comparative negligence statute must be linked with changes in joint and several liability. It is this linkage that, at least in part, has contributed to the defeat of the bills as lawmakers and interested organizations have struggled to draft language that enables plaintiffs to collect damages when one or more of the defendants is impecunious and, at the same time, protects defendants from paying a disproportionate share of the award. In 1988, the MSBA followed the advice of the Section of Negligence, Insurance and Workers’ Compensation and the Section of Litigation to withhold support of or opposition to the comparative negligence principle until legislation was available. The absence of any comparative negligence bills in the 1989-1992 sessions precluded any MSBA involvement in the issue. The MSBA Board of Governors voted to support (with amendments affecting joint and several liability) the 1993 comparative negligence bill, but the proposal was withdrawn before the Association could comment publicly. In 1996, the MSBA testified in favor of comparative negligence if amendments abolishing joint and several liability were added, but the bill was withdrawn before a committee vote. The 1997 version of the bill died in the House Judiciary Committee by one vote, despite the MSBA’s offer to assist legislators to craft a bill that would balance the interest of both plaintiffs and defendants under a comparative negligence system. A similar proposal filed in 1998 was killed in the Senate Judicial Proceedings Committee in large part due to the intense opposition of local government officials. Proponents of comparative negligence hoped that changes in committee assignments after the 1998 election would improve chances for passage of legislation. This optimism, however, was not warranted, as the bill died once again in the House Judiciary Committee in large part due to the efforts of local governments fearful of the change. In 2000 and 2001, the comparative negligence bill died by a substantial margin in the Senate Judicial Proceedings Committee which indicates that chances of any bill passing before the 2002 elections are bleak. Opponents of comparative negligence contend that passage of such a statute would unnecessarily disrupt a common law concept (contributory negligence) that has evolved over centuries and would lead to greater uncertainty as courts sorted out the new method. They underscore the need to build in changes to other legal doctrines--joint and several liability, assumption of the risk, strict liability--if a comparative negligence statute was approved. Finally, they challenge supporters of comparative negligence to demonstrate any serious flaws in Maryland’s use of the contributory negligence principle, and predict that passage of comparative negligence would have an adverse affect on the state’s business climate. Supporters of adopting comparative negligence in Maryland argue that contributory negligence unjustly bars plaintiffs from recovering losses in cases where their responsibility for the damage was minimal. They point to the experience of the courts in 46 states that have some form of comparative negligence where the method has been tested over the years. In turn, they challenge opponents of comparative negligence to demonstrate any adverse affects on the business climate of those 46 states that have adopted the principle. MSBA 2002 POSITION: No position until specific legislation is available. SAMPLE LEGISLATION:
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