Legislating From the Bench in MD — Not This Time

Court of Appeals Sustains Contributory Negligence Doctrine 

BY BARRY RASCOVAR / JULY 16, 2013

IT WAS SUPPOSED to be a grand finale for Maryland’s top jurist, Robert Bell — a sweeping re-ordering of this state’s ancient negligence standards by wiping out the common law doctrine known as contributory negligence.

Retired Chief Judge Bob Bell

Retired Chief Judge Robert M. Bell

But a funny thing happened on the way to Bell’s retirement as Chief Judge of Maryland’s Court of Appeals: He couldn’t get his colleagues to go along with him. Instead, as often was the case during Bell’s tenure on the state’s highest court, he found himself in a distinct minority.

By a 5-2 vote, the court upheld Maryland’s contributory negligence doctrine employing the same logic as did Bell’s predecessor, Chief Judge Robert C. Murphy, 30 years ago.

In Maryland, and a handful of other states, if you contribute to your own injury, don’t bother suing others for negligence. It’s a common law standard that dates to 1848 in Maryland, 1809 in England and possibly all the way back to 1606.

Under this doctrine, personal responsibility is deemed paramount. It’s a quaint libertarian view in a 21st century world that increasingly tries to insulate individuals from any and all harm while blaming others — especially those with deep pockets — for our own stupidity or irresponsibility.

Bell dearly wanted to discard contributory negligence. He even formed a special judicial panel to study the matter and report back to him. Those findings didn’t go Bell’s way. The group’s conclusion: This is a complicated matter best left to the General Assembly.

But the chief judge wasn’t deterred. When a test case came along, he made sure the high court grabbed it.

IF ONLY . . .

In an ideal world, a comparative negligence standard would make total sense. Juries would impartially analyze legal arguments and decide how much the plaintiff was at fault for an injury and how much the defendant was at fault.

But juries often render emotional decisions based on the tragic plight of the defendant, heartbreaking tales of loved ones and fire-and-brimstone arguments from plaintiff lawyers urging jurors to hold Big Bad Business to account.

Opening up Maryland to comparative-fault standards would create a huge financial bonanza for litigators and a veritable tsunami of lawsuits swamping Maryland courts.

It also would present an enormous danger to the financial viability of many Maryland businesses, including the state’s medical industry. The number and size of malpractice lawsuits could go through the roof. If you think finding an obstetrician in Baltimore City — a jurisdiction notorious for outsized jury verdicts against doctors — is difficult today, imagine what it would be like if litigators started suing every doctor in sight for the most minor of medical problems patients encounter. If doctors think their malpractice insurance is high now, just wait.

Contributory negligence was embraced in this country in the early 1800s in part to guard against such predatory practices by litigators. Legislators feared that juries, egged on by plaintiff lawyers demanding huge damage awards, would award sums that could kill the nation’s newly developing industries.

That same fear, in a slightly different form, still haunts state lawmakers in Annapolis — and a majority of the state’s highest court.

SEPARATION OF POWERS

The larger issue facing the high court was whether to legislate from the bench.

The panel agreed it had the power to revise a common law rule like contributory negligence. That the jurists refused to do so is a tribute to the majority’s determination not to extend its authority beyond the traditional dividing line separating judicial and legislative branches.

Five of the seven judges concluded: This is a complex, deeply intertwined legal doctrine that can only be altered after considering a kaleidoscope of ramifications affecting the entire gamut of tort liability and insurance law. That’s the role of the legislature, not the courts.

Judge John C. Eldridge, who wrote the majority opinion, even used Bob Bell’s own words against him. He quoted from a 2008 ruling in which the Chief Judge had written, “It is well settled” that when the General Assembly makes clear its wishes on public issues, “the Court will decline to enter the public policy debate” — even if the issues involve a common law doctrine.

It is doubtful these jurists would have wasted so much time and energy debating this matter had not Bell insisted.

In the end, a substantial majority merely re-stated Bob Murphy’s 30-year-old logic for maintaining the legislature’s right to determine the fate of contributory negligence. Any other conclusion, Eldridge noted, “would be totally inconsistent with the Court’s long-standing jurisprudence.”

In Dissent

 ‘A dinosaur roams yet the landscape of Maryland’

Three cheers for Court of Appeals Judge Glenn Harrell for adding some levity to the dry and often ponderous writings of the state’s highest court.

Harrell passionately believes the state’s doctrine of contributory negligence needs to be deep-sixed. It is unfair and out of date, he says. He prefers a pure comparative negligence standard.

The problem is that he was virtually alone in making this argument. Only retiring Chief Judge Bob Bell sided with him.

Appeals Court Judge Glenn Harrell

Appeal Court Judge Glenn Harrell

Harrell, though, didn’t go quietly. He stated his arguments at great length — nearly three times longer than Eldridge’s majority opinion and nine times the length of a supplemental majority opinion by Judge Clayton Greene (with three co-signers).

What’s eye-catching about Harrell’s rant — he’s not a happy camper — is the judge’s opening salvo, which is dripping with mockery, humor and irony.

Here it is:

     “Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

     “My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”

 Yes, Harrell was outvoted on the state’s highest court. But at least for two paragraphs he was entertaining.

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