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Contributory Negligence in Maryland, Virginia and the District of Columbia: Still Alive After All of

Negligence is a term generally used to characterize conduct by one person that presents an unreasonable risk of harm to another. When that risk causes injury or damage, the person injured often seeks to hold the “negligent” party legally responsible by proving in a lawsuit that the person who injured them acted unreasonably given the particular circumstances. When the conduct of the defendant is found to have been unreasonable by a judge or jury, then the defendant may be legally responsible for the claimed injury or damage. If a judge or jury determines that the defendant acted reasonably; however, then the reasonableness of the defendant’s conduct may serve as a complete defense to the plaintiff’s lawsuit. Contributory negligence is a defense that addresses the conduct of the injured party.

We are often asked whether or not a person can collect damages that result from someone’s alleged unreasonable conduct if the party claiming to have been damaged was also partiallyresponsible for his or her injury due to the unreasonable nature of their own conduct. In Maryland, Virginia, and the District of Columbia, the answer may surprise you.

The vast majority of states (46) apportion the recovery of damages in a negligence lawsuit according to the “comparative” fault of the parties (i.e., a party that is 10% responsible for their own injury can only recover 90% of his damages). However, the states of Maryland,Virginia, North Carolina, Alabama and the District of Columbia follow the doctrine of “contributory negligence” which prevents a party from recovering any damages when that party is found to be partially at fault for his own injury. For example, if a person injured while crossing the street while texting brings suit against the careless driver that injured him, the distracted walker’s ability to recover for his injuries may be completely lost as a result of his own conduct.

One might think that the 5 jurisdictions that still subscribe to the “all or nothing consequences” of contributory negligence will eventually “catch up” to the 46 comparative negligence states and that it will be only a matter of time before they join with the rest of the nation in embracing comparative negligence. Not so fast.

As recently as 2013, this very issue was examined by Maryland’s highest court, who in an 5-2 decision, in James K. Coleman v. Soccer Association of Columbia, upheld Maryland’s contributory negligence laws, while highlighting the Maryland General Assembly refusal to change the current system through legislative action. As noted by the Maryland Court of Appeals,

"For this court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s failure to do so, would be totally inconsistent with the Court’s longstanding jurisprudence."

According to the Insurance Law Journal, from 1966 to 1982, the Maryland General Assembly considered (and failed to enact) 21 bills seeking to change Maryland’s contributory negligence laws. One consistent reason given for this is the strong support for contributory negligence laws in the small business community, who view these laws as protection against frivolous lawsuits, and appreciate the lower insurance premiums afforded to businesses operating in contributory negligence states.

While it appears that contributory negligence is firmly entrenched the State of Maryland, it should be noted that not all contributory negligence laws are absolute and exceptions have been created over the years to mitigate against the universal application of the doctrine’s “all or nothing rule.” For example, under the “Seat belt law” enacted by the Maryland General Assembly, the fact that an injured party was not wearing a seat belt can not be used in a lawsuit to attach contributory negligence to that party. So, while it may be a crime to not wear a seat belt (and the failure to wear a seat belt may be a significant contributor to an automobile-related injury), the General Assembly has chosen to exempt this behavior from the defense of contributory negligence. Also, courts in Maryland have held that regardless of any negligence attributed to an injured person, if the defendant had the “last clear chance” to avoid causing an injury that could have been prevented by a defendant (and who failed to do so), then contributory negligence cannot be used to defeat liability. Further, exceptions have also be carved out by the courts to deal with circumstances where the defendant has been found to have acted intentionally; or can be held strictly liable for his conduct under existing law. Given these numerous exceptions, unreasonable conduct by an injured party does not always present a defendant with a defense to legal liability.

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