In the coming months, the Maryland Court of Appeals will decide if the state should move to a different system for deciding whether many accident victims — who would not have been injured without the negligence of others — can recover at least partial compensation. Currently, juries in Maryland are not allowed to award these victims even reduced damages from businesses or insured automobile drivers when both the victim and another party are at fault. Even if the injuring party's degree of fault is more egregious than that of the victim, the victim still cannot recover. This system, called "contributory fault," is antiquated and unfair, and the court should change it.
In recent years, Maryland's utility companies were among the biggest opponents of the alternative system, known as "comparative fault." These companies lobbied intensely to prevent the legislature from changing the system. In view of the storms in early July, it is not hard to understand why. When the winds blew and the rains came, overhead wires, some poorly maintained, came tumbling down. Sometimes they were not fixed for five or more days. Assume a motorist tried to edge his car around the downed wires and was electrocuted. Contributory negligence on his part? Probably. Negligence on the part of the utility company in not maintaining the lines better or for not repairing the downed lines sooner? At least in some instances, yes. But when both the victim and the utility company are at fault, under current Maryland law courts award no relief at all.
Some business interests argue the court should leave any change to the legislature. But Maryland judges, not the legislature, created contributory negligence in the mid-19th century. In the past half-century, 45 states have modified contributory negligence by adopting comparative fault, which reduces — but does not eliminate — the victim's award of damages when both parties are at fault. In many states, including Florida, Illinois, and California, the courts, not the legislature, made the change. Despite apocalyptic warnings from lobbyists for some Maryland businesses, life goes on in those jurisdictions. In fact, a return to contributory negligence does not even appear to rank high in the tort reform agenda of businesses and insurance companies in other states.
Our constitutional structure provides that courts develop the common law unless and until the legislature acts. In Russia, China, and France, only the legislatures are empowered to create law governing liability in accidents, but the American and English tradition has always been different. Of course, if the Court of Appeals does adopt comparative fault, the Maryland General Assembly can respond and undo the action if it wants. My hunch is that the legislature would look at what is fair and what has worked in the overwhelming majority of other states and decide to leave the common law in the hands of the courts as it almost always has in the past. I suspect that many legislators, like the rest of us, would ask themselves what took the Court of Appeals so long.
Donald G. Gifford is the Edward M. Robertson Professor of Law at the University of Maryland Carey School of Law, where he formerly served as dean. Mr. Gifford is the co-editor of a leading textbook in the field of torts, which includes the study of contributory negligence and comparative fault. His email is firstname.lastname@example.org.