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After 165 Years, 1% May No Longer Bar Claim

Posted by Joseph G. Cleaver
Joseph G. Cleaver
As a trial associate at Kramer & Connolly, Mr. Cleaver briefed and argued motions and tried cases throughout M...
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on September 26, 2012
in Litigation

Presently, Maryland is one of only five “contributory negligence” states, meaning that in a negligence action, a plaintiff who was in any way negligent is barred from recovery, even when the plaintiff was only “1% negligent.”  That may soon change.

Earlier this month, the Court of Appeals heard arguments in the case of Coleman v. Soccer Association of Columbia, a case in which attorneys for a child injured on a soccer field, and a number of other personal injury attorneys, argued that contributory negligence was an injustice.  The child’s attorney urged the Court to adopt a “comparative negligence” standard, which allows the fact finder to determine the percentage of fault between the plaintiff and the defendant, and to then reduce the plaintiff’s award by the percentage that she was at fault.

Counsel for the Soccer Association argued that any changes to the contributory negligence standard should be made by the legislature, not the Courts, and that the legislature’s inaction for the past 165 years (since the Court decided Irwin v. Sprigg, which established the contributory negligence standard) is a “strong indicator of intent” not to change the law.

If Maryland were to adopt comparative negligence, it would surely lead to increased claims by injured parties (much to the bane of insurance companies), but would probably also result in less trials.  With defense attorneys no longer able to rely upon plaintiff’s partial negligence as a complete bar to recovery, there would likely be a tendency on the part of insurers and defendants to settle cases rather than try them.

If the Court rules in favor of the appellant, personal injury litigation in Maryland will be profoundly affected.  Those of us who practice in this area anxiously await the Court’s decision.

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As a trial associate at Kramer & Connolly, Mr. Cleaver briefed and argued motions and tried cases throughout Maryland, establishing a winning track record with careful preparation, research and aggressive advocacy.