MD Court of Appeals Affi rms Contibutory Negligence, continued from pg 9 T e Maryland Horse Council conducted a


comprehensive review of the impact of equine limited liability laws in other states, and there is simply no evidence that insurance rates have been lowered. Why? Because, according to all sources,


including the Maryland Insurance


Administration, insurance rates are based on overall risk data and claim rates, not individual data, and state laws are not factored into the equation. It is all numbers. A 2006 University of Baltimore Law Forum Jennifer Dietrich Merryman


analysis by


(created at the request of MHC) reports that: “According to Markel Insurance, the rates in Virginia, North Carolina, and Alabama have not been aff ected by their equine statutes. In fact, the rates in those states are comparable to the rates Marylanders pay.” So how are insurance premiums calculated?


According to the Professional Insurance Agents Association: “Determining insurance rates is a very


complex process. Insurance can’t be priced like most products, by supply and demand, because the money people pay for it is intended to help protect against the cost of unforeseen future happenings. “While many factors are considered in determining rates, rates basically are dependent on one major factor: the combined cost of all the losses or claims, known as the company’s loss experience. In a nutshell, the loss experience can be defi ned as losses divided by the premiums collected. T e companies use their loss experience, supplemented by factors refl ecting economic trends, as a guide to the amount they can be expected to pay for future claims and still meet the costs of doing business.


“Once the company has determined its estimated future costs, its rates are set based continued on page 14


It all started with a horse, of course! Excerpted from the majority opinion of the Maryland Court of Appeals in James Coleman v. Soccer Association of Columbia T irty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide “whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place as the rule governing trial of negligence actions in this State.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the court in Harrison declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.” In Harrison, the court held that the contributory negligence principle remained the valid


standard in Maryland negligence cases and that “any change in the established doctrine [was for] the Legislature.” Chief Judge Murphy, for the Court in Harrison, began his review of the contributory negligence standard by tracing the standard’s historical origins to Lord Chief Justice Ellenborough’s opinion in Butterfi eld v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809).4. As Harrison explained the case, “Butterfi eld left a public inn at dusk, mounted his horse and rode off ‘violently’ down the street. Forrester, who was eff ecting some repairs to his house, had placed a pole in the roadway. Although Butterfi eld could have seen and avoided the obstruction, he did not and was injured. T e [English] court there noted: ‘One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff .’ [11 East] at 61, 103 Eng. Rep. at 927.” T e Harrison opinion explained that, when the contributory negligence standard was fi rst judicially adopted in the United States, the courts at the time were concerned that juries would award to plaintiff s sums that had the potential to stifl e “newly developing industry.” Early American courts were also concerned that they should not adopt a policy in which “courts… assist a wrongdoer who suff ered an injury as a result of his own wrongdoing.” Harrison, 295 Md. at 450, 456 A.2d at 898. See also Smith v. Smith, 2 Pick. 621, 19 Mass. 621, 624 (1824) (a leading early American case incorporating the contributory negligence bar as part of common law). T is court, relying on Butterfi eld v. Forrester, supra, fi rst adopted the standard of contributory negligence in Irwin v. Sprigg, 6 Gill. 200, 205 (1847), stating: “T e established doctrine now is, that although the defendant’s misconduct may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly.”


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