www.baltimoresun.com/news/maryland/howard/columbia/bs-md-negligence-appeal-20120917,0,5756781.story

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Soccer field accident could remake Maryland personal injury law

Court of Appeals considers allowing injured people to win damages even if partly at fault

By Ian Duncan, The Baltimore Sun

10:35 AM EDT, September 18, 2012

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The collapse of a soccer goal on a Howard County practice field has led the state's highest court to reconsider more than 150 years of personal injury law, in a case that could significantly improve injured plaintiffs' chances of winning payouts.

The case — which began when a crossbar crashed into then-20-year-old Kyle Coleman's face, crushing the bones around his eye — has drawn national attention, as Maryland's unusual legal standard meets its first judicial test in decades.

Maryland is one of only four states, plus the District of Columbia, that bar injured people from winning lawsuits if they had any role in an accident — even if a jury finds the defendant in their suit deserved a much greater share of the blame. Most other courts allow juries to assign responsibility to each party, and award damages accordingly.

The U.S. Chamber of Commerce and the American Medical Association, which oppose changing that standard, warn of increased insurance rates, careless behavior and a spike in frivolous suits. Trial lawyers and others fighting for a reversal argue that Maryland should recognize that even people who are partially responsible for their injuries should have a chance to recover damages.

"It's a familiar position for us, the little guy," said Bruce Plaxen, one of Coleman's lawyers. "The big guns all were against us. It's the little guy against the Chamber of Commerce and corporate America."

On the other side, lawyers argue if the court wades in and disrupts the long-settled law, the result would be chaos. The General Assembly, which they argue would take a broader, more carefully considered view, is the right place to attempt a change.

Coleman, who has three titanium plates in his head as a result of his injures, sued the Soccer Association of Columbia, the group that was running the practice in 2008 when the accident occurred. In a late-summer soccer practice at Lime Kiln Middle School in Fulton, Coleman was taking a few warm-up shots at an empty goal. He grabbed the goal's crossbar as he passed underneath to retrieve a ball, and it fell over.

A Howard County jury found the association was at fault in Coleman's injury because it did not properly secure the goal.

But because the jury also found that Coleman was at least partly responsible for the accident, he did not receive any payout.

Coleman's lawyers appealed and the Court of Appeals recently heard two hours of argument on the standard, known as contributory negligence.

"This court created contributory negligence in the 19th century and it's time for this court to abandon it," John Vail, a Washington attorney drafted by Coleman's team, said at the hearing. "The doctrine is not just. And this court's failure to act will perpetuate injustice."

The high court let outside parties present their arguments in court as well, which the lawyers involved said indicates how seriously it is taking deliberations.

A change could have far-reaching consequences. For example, a shift could affect any lawsuits brought as a result of the Ellicott City train derailment that killed two 19-year-old students in August.

According to Bob Lande, a professor of law at the University of Baltimore, the girls' families might not be able to win a case under the negligence standard as it now stands.

"They wouldn't have a chance," he said.

The standard was adopted in Maryland in an 1847 case called Irwin v. Spriggs. The plaintiff fell through an opening by a cellar window, but the defendant successfully argued that had the plaintiff been more careful, he would not have been hurt, according to a review of the case for the state legislature.

Maryland has stuck to the 165-year-old doctrine even as 46 other states shifted to a model that allows juries to award damages based on the relative fault of different parties. Most states still block people from receiving payouts if they are more than half at fault.

For example, if Coleman's case had been heard under that scheme, the jury might have decided he was 20 percent at fault for his injury but could still have awarded him 80 percent of any judgment.

For their part, the soccer association's lawyers argued that because it did not own the goal, it had no responsibility for Coleman's injuries. Evidence introduced in the trial also suggested Coleman had smoked marijuana before the practice, which he denies.

Douglas Biser, one of the association's lawyers, said that Coleman's case shows the value of contributory negligence.

"Coleman really caused his own injury, and I don't think he should recover," he said. "When you hear the facts and you consider them, it points up the fairness of contributory negligence."

Many trial lawyers argue that Maryland's approach reduces the incentive for companies and governments to fix problems, because they are less likely to have to foot the bill for accidents.

But business groups argue that switching to the comparative approach would unfairly expose corporations and government bodies to a wave of new lawsuits. Changing the standard, they argue, would drive up the cost of doing business in Maryland and discourage people from taking responsibility for their own actions.

The precise reasons why contributory negligence was adopted in 19th century Britain are obscure, but one theory is that it was designed to protect fledgling industries. Business groups warn that the doctrine is still necessary today for the same reason.

If a change were made, "job losses could be expected," the U.S. Chamber of Commerce and other business groups wrote in a brief in the Coleman case.

State and local government groups also weighed in, worried that they would be exposed to greater liability if the law is changed.

Assessing the effect of any change is difficult, legal experts say, because there is no good evidence from other states on the size of settlements or how many cases are brought. Academic studies of the issue have come to conflicting conclusions.

Vail, the lawyer for Coleman, said he expects more cases would settle because defendants would not be able to roll out their powerful defense at trial. But overall, he said, the rise in claims would be modest.

"I don't think that this change is going to have a huge effect on business," he said.

Biser, the association's lawyer, predicted more suits, adding, "I don't think more litigation is ever a good thing."

The General Assembly has taken up the issue of changing the standard numerous times in the past but never made much progress.

Sen. Jamie Raskin, a Democrat who sits on the Judicial Proceedings Committee, said he is open to looking at the question again but added that the General Assembly would likely deadlock over any reform attempts.

Republican Sen. Nancy Jacobs of Harford County, who also sits on the committee, said she strongly opposes any change and that most of her colleagues feel the same way.

Don Gifford, a professor at the University of Maryland School of Law, remembers testifying in favor of a switch to a comparative model and facing "extreme pressure" from corporate lobbyists. Raskin said consumer groups and the trial lawyer lobby fight back just as hard, contributing to the stalemate.

iduncan@baltsun.com