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Comparative Negligence (Continued from page 12)


Contributory negligence frustrates


these healing, compensatory functions. A defendant “gets away with” causing injury, if he or she can shift any of the blame to the victim – not all the blame or most of the blame, but “any of the blame.” In contrast to this draconian “all or nothing” proposition, comparative offers “fair compensation,” a number arrived at by determining the amount of damages, then reducing it by the percentage to which the plaintiff is responsible for his or her own injury. Comparative negligence, by deducting the plaintiff ’s share of fault, ensures that defendants pay what they owe: the percentage of harm they caused. Not only does comparative promote


more equitable compensation, it is good public policy. People who believe they may ultimately be held accountable for injuring others take precautions. And when they don’t, loss prevention special- ists and insurance adjusters insist that they do. For every warning sign, railing or shoveled sidewalk, there is someone


concerned that someone will sue them if they don’t. Shielded by the doctrine of contributory negligence, potential defendants blame the victim instead of taking the precautions that could have prevented the injuries in the first place. Economic consequences come into


play as well. To lawyers and insurance adjusters, compensatory damages is a generic, clinical phrase. To the injured, they are lost income needed to feed a family and to pay financially crippling medical bills. When these losses are not made whole by wrongdoers, they do not simply evaporate. Medical expenses, for example, might be paid by health insur- ance, thereby shifting the obligation to pay the bills from the wrongdoer to the premium paying public. For uninsured patients, these unpaid medical bills cause devastating financial hardship and even bankruptcy. Furthermore, the doctors of uninsured patients either look to the taxpaying public, through Medicaid or medical assistance, or, most commonly, write off the bills as bad debts. These bad debts are recouped when the doctor charges more for services rendered to paying patients.


In an age when health insurance and


medical care are becoming so expensive that many cannot afford them, it makes little sense to increase the cost of care because wrongdoers who ought to pay the bills escape liability. Opponents of comparative negligence,


a coalition of insurance and business interests, protest that comparative is either unnecessary or that its adoption will open the floodgates of additional litigation. Dubbed the “usual suspects,” by a


member of Maryland’s House of Del- egates, the nay sayers argue that existing law and practices offer sufficient protec- tion of plaintiffs’ right to compensation. Some argue that the doctrine of last clear chance actually creates a comparative standard. Nothing could be farther from the truth. The last clear chance doctrine is actually a narrow doctrine that applies only when the tortfeasor is actually aware of the plaintiff ’s contributory negligence and lets the accident happen anyway. The last clear chance doctrine does not pro- vide for the weighing of degrees of fault, but merely a recognition that someone who knowingly lets an accident happen cannot then blame the other party for the accident. Some argue that contributory neg-


ligence juries are currently applying comparative negligence standards in reaching compromise verdicts. Even as- suming that this occurs, this “let’s give the plaintiff something” spirit can only be recognition by lay jurors that the con- tributory system is so unjust that they are willing to nullify the jury instructions by returning a compromise verdict. How can anyone seriously argue for keeping a law that requires fact finders violate the oath they took to achieve a just result? Turning to a “parade of horribles,”


detractors of comparative negligence forecast an avalanche of claims, as those whose rights are foreclosed under the current system seek fair, comparative compensation. We are warned that more claims equal more insurance payouts, which means higher insurance premi-


(Continued on page 16) 14 Trial Reporter Fall 2007


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