Maryland is one of only a handful of jurisdictions that still follow contributory negligence. Under this rule, an injured person who contributed to the accident, even slightly, may recover nothing. This article explains the rule, how courts apply it, and the doctrines that can soften it.
In most states, a jury reduces an injured person's damages by that person's share of fault. Maryland takes a stricter approach. If the defendant proves that the plaintiff failed to use reasonable care and that the failure helped cause the injury, the plaintiff's claim fails entirely.
The Court of Appeals declined to abandon the rule in Harrison v. Montgomery County Board of Education, 295 Md. 442 (1983), and again in Coleman v. Soccer Association of Columbia, 432 Md. 679 (2013). In both cases the Court left any change to the General Assembly. The General Assembly has considered comparative fault bills many times without adopting one.
Contributory negligence is a defense, so the defendant carries the burden of proving it. The question is whether the plaintiff acted as a reasonable person would have acted in the same circumstances. Juries usually decide the question, although a judge may decide it when the evidence leaves no room for reasonable disagreement.
A defendant in a car crash case may argue that the injured driver was speeding, distracted, or failed to yield. In a fall case, the defense may argue that the hazard was open and obvious or that the injured person was not watching where they walked. Clear photographs, witness statements, and records made soon after the event often answer these arguments.
Under the last clear chance doctrine, a plaintiff who was negligent may still recover if the defendant had a fresh opportunity to avoid the harm and failed to take it. Contributory negligence generally does not bar a claim based on a defendant's intentional or wanton conduct. Maryland courts have also long held that very young children cannot be contributorily negligent.
In strict product liability cases, ordinary contributory negligence is generally not a defense, although product misuse and assumption of the risk can be. Workers' compensation claims are no-fault, so the rule does not apply to them at all. Each of these exceptions turns on specific facts.
Because a small mistake can defeat a claim, avoid statements to insurers that admit fault or speculate about what happened. Preserve the evidence that shows how the event unfolded, and write down your own account while it is fresh. A lawyer can assess the contributory negligence risk before you give any recorded statement.
Christopher L. Beard, an Annapolis attorney, represents injured people throughout Maryland. To discuss an injury claim, e-mail chris@attorneybeard.com or call (410) 267-0227. You can also read our article on the personal injury claims process in Maryland.
