MD Court of Appeals Affi rms Contibutory Negligence Under Maryland Law, individuals still must “bear the consequences of their own recklessness or folly.”


by Jane Seigler, Maryland Horse Council president On July 9, the Court of Appeals of Maryland issued a ruling in a case (James Coleman v. Soccer Association of Columbia) in which a plaintiff sought damages for injuries sustained when he jumped up to hang on the top bar of a soccer goal that was unsecured. T e goal toppled on top of him, and he sustained serious injuries to his face, with ensuing plastic surgeries and implantation of titanium plates. T e trial court denied damages, because it found that the plaintiff was partially responsible for his own injuries, and under Maryland’s contributory negligence standard that means that he cannot recover anything. On appeal, the plaintiff asked the court to instead apply a comparative negligence standard, under which the plaintiff could recover at least partial damages, even though he was found to have contributed to his own injuries. Noting that the legislature has considered the question of whether to replace the contributory negligence standard with the comparative negligence standard on numerous occasions and has failed


to do so, the court said: “For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the Court’s long-standing jurisprudence.” T e court also noted that there are several diff erent versions of comparative negligence standards in use in various states, and choosing one that would be best for Maryland is best left to the legislature. T ere was a lengthy dissent, in which the contributory negligence standard was described as a “dinosaur,” which the dissent predicted would be relegated to “a judicial tar pit at some point” in the future.


Maryland is one of a handful of states that still applies the contributory negligence standard, which is favorable to defendants in negligence suits because it denies the award of damages if the injured party can be


The Myths of Equine Industry Insurance & Limited Liability Laws Many owners of lesson and guided trail


ride stables, as well as other types of equine businesses, live in fear of being sued. It is a real fear, and even though Maryland has a strong standard of liability that favors the business owner and farm/land owner, every equine business owner should carry liability insurance. T ree myths are persistent, however, in the horse industry. Myth #1: “You can’t get insurance any more


for riding stables.” If we have heard it once at T e Equiery,


we have heard it a million times. It is simply not true. T e insurance is available, although it can often be expensive, as it is for other high-risk activities, such as skiing, skydiving, scuba diving, boat rentals, you name it. But purchasing liability insurance is the cost of doing business, just as there are other basic costs to running a business. T e myth that insurance is not available for lesson stables and similar establishments is often not that it is not available, but that it is expensive and business owners simply don’t want to pay that much. According to the MHC Issue Analysis published in 2011: “When brokers and agents were asked why


premium rates were so high, and why so many companies seemed to be turning their backs on the horse insurance business, they answered what they understood and what they had been told: i.e., the problem was risk. Horses, by nature, are risky animals, and insurers were no longer willing to risk huge injury settlements by covering people unfamiliar with horses. “Yet, by itself, the mere riskiness of the horse


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“Contributory negligence lives on, and we are pleased that Maryland’s highest court observed its proper role under the state and federal Constitutions and correctly acknowledged that the court was not the one to decide whether to change the law of contributory negligence. Preserving this law is a victory for every small business, every employer, every insured, and every taxpayer in Maryland who benefi ts from one of the simplest and most important public policies we have: that people should be responsible for their actions, and they should be careful in their day-to-day lives to avoid injury to themselves and others. It has been the law of Maryland for 166 years, and in our view, there will never be a valid reason to discontinue this practical law, unless the legislature decides in favor of a diff erent public policy.” - Carville B. Collins, Partner


, DLA Piper , LLP


shown to have contributed to his own injuries through his own negligence.


industry cannot fully explain why so many insurance companies decided to stop insuring stables and farms in the 1980s. After all, the very defi nition of the insurance business is the calculation and assumption of risk, whether fi re and casualty, auto, life and accident, health, malpractice, drought, or even earthquakes. “What impacts the insurance business even more than risk (premium-claims ratio) are changes in interest rates. Insurance companies tend to be major lenders—far more than borrowers—so when interest rates are high or rising, they do well. But when interest rates plummet, as they did in the late 1980s, insurance companies get nervous, especially about exposure in specialty, so-called “niche,” markets. T ey either raise rates or get out entirely. “From an insurance industry market standpoint, the horse industry is small and specialized, regardless of studies showing how big it is. Unless insuring horse operations is the core of their business, insurance companies will get rid of their specialized equine experts when cash fl ow gets tight. Obviously, when remaining fi rms see others getting out, they raise their premium rates enough to stay in the business.” So, while insurance does exist, it can be


diffi cult to fi nd the right package that suits your business, or the right agency that off ers it. It is true that many underwriters decided to prune away insuring high-risk activities in order to improve their corporate balance sheets, and stopped insuring stables. Regardless, insurance is still available, for lesson stables, for guided trail rides, for all kinds of equine businesses. Equine business owners should fi rst be talking


to insurance agents that underwrite the industry. If your agent tells you the insurance you need is not available, or if you are not getting the answers you need from your current insurance agent, try another agent. T e Equiery has many equine agents who advertise with us, and even more in our database in the offi ce. Myth #2: “Equine Limited Liability Laws


lower insurance rates & protect business owners.” From the MHC Issue Analysis: “Many states now have passed equine


immunity bills, also known as limited liability laws. T ese laws, in essence, a) defi ne the basic nature of a horse, and b) establish that, as long as the operator of the facility complied with state requirements for signage, etc., his clients would be considered to have assumed the risk. It was theorized that if such laws eased the minds of actuaries, the subsequent entry (or re- entry) by fi rms into the horse-insurance market in states with these laws might then lead to competition and hence, lower premiums, and such laws might also reduce the number of lawsuits in those states. Neither of these have come to pass.”


Equine Limited Liability laws vary state by


state, but their general eff ect is to allow a lot of cases to be dealt with through summary judgment in favor of the defendant, rather than going to trial. Or, potentially, causing a lot of cases to settle or not be brought in the fi rst place, because of the likelihood of summary judgment. But does this lower insurance premiums?


continued on page 12 OCTOBER 2013 | THE EQUIERY | 9


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