Most people who live in Maryland are surprised to learn from Burch & Voss that the state has one of the most oppressive rules against law suits by seriously injured people. The contributory negligence rule bars a person who was injured by another's negligent conduct from recovering any compensation for his damages if he was in any manner contributorily negligent. In other words, if you are seriously injured as a result of another person's negligent conduct, but a jury finds that you were just 1% responsible, then you are barred from receiving any compensation for your damages. The person or entity that was 99% responsible for causing your injuries pays no damages. Even in states not generally noted for progressive legislation, like Texas, Utah and Mississippi abandoned the contributory negligence rule.
Only 4 states including Maryland still apply this rule that favors insurance companies and the parties who cause injuries over injury victims. Every other state has adopted a comparative negligence approach that reduces the amount the plaintiff recovers for his damages by the percentage that he contributed to his own injuries. For example, if the injured person suffered $100 in damages and a jury found him to have been 5% at fault, then his damages would be reduced by $5. A defendant who was 95% responsible for the damages would pay $95. A simple, fair and reasonable outcome that is the law everywhere except in Maryland, D.C., Virginia and N.C.
The comparative negligence rule may seem sensible to most people, but it doesn't make sense for insurance companies and business interests that are more likely to be defending lawsuits. In any personal injury trial, the defendant's lawyers only have to convince a jury that the injured person was just 1% at fault to win a complete victory. Every action or inaction taken by the victim comes under close scrutiny while the defendant can admit his negligence and still be completely protected. The defendant's likelihood of success at trial increases immeasurably as a result of the contributory negligence rule.
Because the law is tilted in favor of a defendant's verdict, it reduces not only jury verdicts but settlements as well. Insurance companies feel emboldened to deny claims or offer unreasonably low compensation -- leaving the bulk of the damages on the injured victim or her family. Particularly in cases with large potential damage awards (like serious brain injuries and paralysis), the contributory negligence rule makes taking the case to trial an all-or-nothing gamble that most injured people are unable to take. (Maryland law also protects defendants and insurance companies with a cap on compensation for non-economic damages at $675,000 regardless of the injury thus eliminating the risk of a "runaway verdict").
There is no statute or other law passed by the legislature mandating that the courts apply the contributory negligence rule. Maryland courts have simply followed the old common law rule and the legislature has never passed a law to replace the judge-made rule. Over the past two decades bills for comparative negligence have been brought before the Maryland legislature many times. However, a minority of delegates (in particular, the Chairman of the House Judiciary Committee) have blocked any bill from reaching a vote in the House of Delegates.
If you see your state legislator at a party this Christmas season, ask him or her if she knows anything about the contributory negligence rule. I bet most don't much about it and that's how the rule survives. Give him or her an earful about how you don't think insurance companies in Maryland should be given this subsidy at the expense of people who have been - or will become seriously injured. Make the point relevant now so it won't be relevant if you or your loved one gets injured through someone else's negligence in the future.
