Maryland Court of Appeals Declines to Judicially Abrogate Contributory Neglience

July 9th, 2013

Remember 1L Torts? In almost every state, comparative negligence applies. Under this regime, damages can be assessed even if a party contributed to the tort. In a few states (Virginia, Maryland, and North Carolina), the old, common law doctrine of contributory negligence still applies. Under this regime, a party that contributes to the injury, even proximately, cannot recover. It is a harsh doctrine for sure, and most states have abandoned it.

Today, the Maryland Court of Appeals (the highest court in the Old Line state) decided whether it should abrogate this common law doctrine. The Court held it would not.

Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide “whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place as the rule governing trial of negligence actions in this State.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in Harrison, 295 Md. at 463, 456 A.2d at 905, declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.” The petitioner in the case at bar presents the same issue that was presented in Harrison, namely whether this Court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison.

This dissent is evidence why judges should not try to be funny when they don’t write well. Yuck.

Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent. My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.

Yes. Compare a court opinion to a catastrophic and cataclysmic asteroid. What a lovely image for a group of judges to aspire to. I think even dinosaurs would be offended by that lame prose. Someone, go make a velociraptor meme.

Update: Courtesy of Daniel Rice, we have a meme