By Ian Duncan, The Baltimore Sun
7:20 PM EDT, July 9, 2013
The Court of Appeals on Tuesday upheld Maryland's long-standing but unusual way of handling negligence cases, which bars plaintiffs who are found to be even 1 percent at fault from winning payouts.
Judge John C. Eldridge, writing for the 5-2 majority, said the question whether to change to another model is one for the state legislature.
Another model would likely require juries to assign blame and portion out damages accordingly — something Maryland jurors don't do now.
"For this Court to change the common law … in the face of the General Assembly's repeated refusal to do so, would be totally inconsistent with the Court's long-standing jurisprudence," Eldridge wrote.
The case was watched closely by business groups, which argued that a change would expose companies to frivolous suits and encourage carelessness, and trial attorneys, who say the current system unfairly punishes people who make mistakes but are not solely in the wrong.
The legislature has considered changing the rules several times since the 1960s but has never passed legislation. Sen. Brian E. Frosh, the chairman of the Judicial Proceedings Committee, said the appeals court ruling clearly puts the onus on the General Assembly.
"The ball is in our court for sure," the Montgomery County Democrat said. "Whether we're able to do anything with it, I really couldn't say."
Maryland adopted the principle known as contributory negligence in 1847 through a court ruling. It was a widely used idea at the time but has since fallen out of fashion. Forty-six states have switched to various "comparative" alternatives that allow juries to apportion fault to the parties in negligence cases.
In the underlying case that led to Tuesday's ruling, James Kyle Coleman, a volunteer soccer coach, was seriously injured when a set of goal posts fell on his face. Coleman had been working as a trainer for the Soccer Association of Columbia, and a jury found that both he and the club were at fault in the accident.
As a result, the soccer club won the case.
Douglas Biser, the association's attorney, welcomed the appeals court ruling. He said that Coleman had been misusing the equipment and that the case showed why the existing negligence system is fair.
"I don't think that it's unfair that he didn't collect," he said.
Two members of the seven-judge panel that heard the case — including recently retired Chief Judge Robert M. Bell — filed a dissenting opinion, describing Maryland's standard as a "dinosaur."
"With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct," Judge Glenn T. Harrell Jr. wrote.
The majority did not argue for the current doctrine, but said it did not want to overrule the General Assembly, which it said appears to have settled on a policy by "repeated failure to pass legislation."
Bruce Plaxen, one of Coleman's lawyers, said the court had misunderstood state politics in arriving at its conclusion.
"I go to Annapolis a lot, and the inaction in Annapolis is not indicative of legislative intent," he said. "It shows a lack of sophistication by the court."
Del. Joseph F. Vallario Jr., the chairman of the Judiciary Committee, said delegates held back while the court considered the law.
"The session went on and went on and we never got an opinion," said the Democrat, who represents Calvert and Prince George's counties. "We'll probably have legislation on the issue next year."
Republican state Sen. Joseph M. Getty, who represents Baltimore and Carroll counties, supports the current system, which he called "very balanced."
But he added that the court's decision could provide an opening for legislators looking to make a change — especially because some will be leaving after next year's election.
"I think the advocates for comparative negligence will come into the 2014 session with a bill and try to play on the lame-duck nature of the General Assembly," he said.
"Judge Bell's dissent will be used for advocates for change in support of their position."
Frosh said he supports a change, but lawmakers have fought to a stalemate on the issue. He does foresee a breakthrough in the near future.
"There are vested interests both in government and the private sector that strongly want to keep the doctrine of contributory negligence," Frosh said.
Lloyd Eisenberg, who also represented Coleman, said he has wanted Maryland's doctrine thrown out since he was a law student 30 years ago. He said he was "very disappointed" by the ruling.
"I guess it's going to take another 20 or 30 years," he said. "I'm always optimistic."
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