“To qualify as contributory negligence, it is not enough for negligence to exist. It must actively contribute.”
Judge Charles E. Moylan
For more than 50 years, Maryland attorneys have relied on Judge Charles E. Moylan to find new and often entertaining ways to explain the law. He is still at it, even as an entire generation of lawyers has come and gone since he reached the age of “constitutional senility” and had to retire in 2000. In his most recent effort, Blake v. Chadwick, No. 1939, Sept. Term 2019 (Feb. 26, 2021), Senior Judge Moylan tackled contributory negligence, writing for a Court of Special Appeals panel that reversed the entry of judgment against an auto tort plaintiff whose pre-impact behavior was deemed “dangerously negligent.” Id. at 9. After comparing “generic negligence, as an abstraction, with contributory negligence in the context of a particular event,” the Court concluded that the trial judge erred in applying a “but for” test to determine proximate cause for the injuries sustained. The appropriate inquiry, the Court concluded, was whether plaintiff’s negligence was a “substantial factor” in producing those injuries, even if the accident would not have happened but for plaintiff’s initial negligence.
Blake involved a three-car accident. The simplest rendition of the uncontroverted facts is that plaintiff Annette Blake and her minor grandchildren were in a disabled minivan (Vehicle 3) in the far right lane of a three lane road when two other vehicles (Vehicles 1 and 2) collided in an adjacent lane and slid into the plaintiff’s van. The reason that the van had broken down, and the basis for the contributory negligence defense, was also uncontroverted: it had been overheating and stalling out for days, yet at 4:30 PM on a steamy August weekday, plaintiff drove it across town in bumper-to-bumper traffic so that her mechanic could install a new radiator that she had just purchased. Rather than amble along less traveled side roads at a cooler time of day, plaintiff opted to go at rush hour down Martin Luther King, Jr. Boulevard, the primary southbound route out of downtown Baltimore with limited exits and no shoulder. Id. at 7. When the car overheated and the engine failed, plaintiff and her minor grandchildren remained in the car, blocking traffic for “two high-risk minutes” as she phoned her mechanic. Id. at 8.
As plaintiff made that call, David Chadwick (Vehicle 1) was in the far left lane but wanted to move to his right in anticipation of an upcoming turn. He saw that the center lane was clear and merged into it, moving from left to right. Simultaneously, Denia Watkins (Vehicle 2), who was stopped behind plaintiff in the far right lane, saw the same opening in the center lane and began to merge into it from right to left. Vehicles 1 and 2 thus merged into the same space at essentially the same time. The resulting impact pushed Watkins (Vehicle 2) into the plaintiff’s van, injuring its occupants. Id. at 5-6.
The defendants moved for summary judgment, arguing that the plaintiff was contributorily negligent and that her claims, therefore, were barred by Maryland’s contributory negligence doctrine. The trial court agreed, adopting the defendants’ arguments in its memorandum opinion:
[Plaintiff] was contributorily negligent when she drove a vehicle that she knew was in an unsafe condition during rush hour traffic. Under the Md. Code Ann., Trans. Section 22-101(a)(1), [Plaintiff] was forbidden to drive the vehicle which she knew was in an unsafe condition to operate. . . . Thus, [Plaintiff] was contributorily negligent as she knew the radiator did not work yet chose to drive across town with a broken radiator, had reason to anticipate that the car would overheat and stall the engine again, and chose to leave the vehicle stopped in the roadway.
Id. at 8–9 (emphasis in original).
The appellate court agreed that the plaintiff’s actions leading up to the accident were negligent, but observed that “negligence is not enough.” Id. at 9. “With respect to the legal phenomenon of ‘contributory negligence,’ the limiting adjective ‘contributory’ is just as significant and just as necessary an element as is the noun ‘negligence.’” Id. (citation omitted). Whether assessing primary or contributory negligence, an act that is negligent as a matter of law is legally inconsequential unless it is a proximate cause of the harm for which recompense is sought. It is “black-letter clear that unless negligence is a proximate cause of the accident, it, by definition, cannot be contributory.” Id. at 10 (citations omitted).
Maryland has developed two tests to determine proximate cause, or causation-in-fact: (1) the “but for” test; and (2) the substantial factor test. Id., citing Pittway Corporation v. Collins, 409 Md. 218, 244, 973 A.2d 771 (2009). The “but for” test is used in cases where only one negligent act is at issue. In that event, cause-in-fact is found when the injury would not have occurred without—or “but for”—the negligent act. Id. at 11. Where, as in Blake, there is more than one negligent act resulting in injury, the substantial factor test controls, and causation-in-fact will be found only for negligent acts that were a substantial factor in producing the injury. Id.
The Court found that the defendants and the trial courts erroneously applied the “but for” test, notwithstanding the fact that plaintiff’s initial negligence (choosing to drive when and where she did), was followed by at least one and perhaps two subsequent acts of negligence, i.e., vehicles 1 and 2 “merging not into an empty middle lane but into each other.” Id at 12. The Court acknowledged that “but for” plaintiff’s antecedent negligence, her van would not have been there but, in classically Moylanesque terms, warned:
If one ventures incautiously into the treacherous realm of “but for” causation, one may soon descend into the inescapable infinitude between two facing mirrors. “For the want of a nail, a shoe was lost; for the want of a shoe, a horse was lost; for the want of a horse, a rider was lost; for the want of a rider, a battle was lost; . . .” There are no theoretical limitations on this slippery slope of “but for” causation, where “but for” the want of a nail, a war may not have been lost. Thank Heaven for the law’s proximate causation requirements!
Id. at 13.
Here, where there were multiple negligent acts, “‘but for’ causation has no place” and Maryland law requires application of the substantial factor test. Id. at 14.
The Court began its analysis of this test with the observation that “[a] plaintiff does not, ipso facto, forfeit his right to recover for an injury simply because he negligently put himself in harm’s way.” Id. “[A]lthough an injury might not have occurred ‘but for’ an antecedent act . . . liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury.” Id. at 15, quoting Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851 (1970).
After reviewing several auto tort cases where pre-impact negligence was deemed “passive and potential,” including one where a passenger in a stalled car unsuccessfully sued his driver for injuries sustained when the car was hit by another, the Blake Court concluded:
[The] collision in the center lane, which sent the Watkins vehicle careening into the Blake minivan was an independent act of negligence all of its own, as Ms. Blake sat passively by. Whatever damage was incurred by her and her grandchildren and by her minivan was distinct and independent collateral damage from a collision to which she did not directly contribute. She was sitting passively in place when Vehicle #1 and/or Vehicle #2, one or both, attempted negligently to merge into the same space.
Id. at 12.
Stated differently, plaintiff’s series of unreasonable decisions had ended and was not an active, substantial factor in causing the injuries suffered by those in her vehicle. It did not, therefore, contribute to them. As an aside, the Court politely expressed concern about the trial court’s entry of summary judgment against plaintiff’s minor grandchildren, uncertain as to how they possibly could have contributed to the accident. Id. at 14, n. 2. The entry of summary judgment in favor of defendants was reversed, and the case remanded to determine damages and whether one or both of the defendants was liable for them.