On July 9, 2013, the Maryland Court of Appeals reaffirmed Harrison v. Montgomery County Board of Education, 295 Md. 442 (1983) and held that contributory negligence will remain the law of Maryland until the General Assembly says otherwise.  The Court of Appeals voted 5-2 not to change the common-law doctrine, citing the Civil War-era precedent and the repeated but failed attempts by the General Assembly to change the rule as strong evidence that contributory negligence is the expressed policy of the State of Maryland.

The Court did acknowledge that, because contributory negligence is a common law rule, the Court was within its powers to change the doctrine.  Despite this, Maryland remains one of the very few states that will relieve a defendant from liability if the plaintiff in a personal injury action is even a tiny bit at fault.  One argument that amici made (and that the majority at least implicitly adopted) was that contributory negligence permits lower insurance premium costs in Maryland, leading to lower costs of doing business.

Judge Harrell and now former Chief Judge Bell filed a lengthy dissent, chastising the Majority for not overturning what they see as an ancient, unfair, and outmoded rule.  Acknowledging that the menu of policy options makes abrogating this particular common law rule more difficult than others, Judge Harrell noted that “[t]he perceived difficulty of the task should not excuse its performance.”  Legislative Redistricting Cases, 331 Md. 574 (1993).

Moreover, the dissenters rejected the notion that because the General Assembly had not been able to pass a law overturning contributory negligence, the Court of Appeals should not do so either.  Judge Harrell was skeptical that the General Assembly’s failure to formally overturn contributory negligence meant that the majority of Marylanders wanted contributory negligence as the law, acknowledging the heavy closed doors lobbying on the subject.  In their conception, the Court should act when “the state of society and law have changed so that contributory negligence is a vestige of the past, unsuitable to the conditions of modern life.”  Slip Op. at 14–15.  The Court has done this before, see Bozman v. Bozman, 376 Md. 461 (2003) (abandoning the doctrine of interspousal immunity when confronted with the great weight of authority in favor of abrogation), and therefore it should do so again here.

In the end, both sides attempt to interpret the General Assembly’s “silence” on the issue, reading the tea leaves of legislative history to come to their own conclusions.  As the concurring opinion by Judge Greene points out, the ball is now in the General Assembly’s court to study overturning the doctrine. Perhaps the General Assembly will do so this winter.  If so, be on the lookout for heavy lobbying on both sides in Committee hearings and on the Assembly floor in Annapolis.

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