Comparative Negligence by James MacAlister


2007 marks the 160th anniversary of


Maryland judiciary’s adoption of the doctrine of contributory negligence. Since 1847, Marylanders “cannot recover [tort damages] if the plaintiff ’s negli- gence is a cause of the injury.” Maryland Civil Pattern Jury Instruction 19:11. Never mind that an injured party’s


slight negligence bars access to justice, “regardless of the quantum of a defen- dant’s primary negligence.”Harrison v. Montgomery County Bd. of Education, 295 Md. 442, 451 (Md. 1983). Never mind that we, the premium/medical bill/tax paying public, wind up footing the bill when wrongdoers do not pay. Never mind that Maryland is one of only four remaining contributory negligence states, the rest of the country having ad- opted a comparative negligence standard in one form or another. The Maryland of 1847, like the


institution of slavery, is long gone. Nevertheless, contributory negligence,


dubbed a “delicate balance” by an insur- ance industry lobbyist, is now deemed so entrenched in Maryland jurisprudence that the Court of Appeals says it is up to the General Assembly to undo what the court did back in 1847. Begged are the questions: (1) what is


comparative negligence; (2) how does it work; and (3) why is it better than contributory negligence? Comparative negligence begins where


contributory negligence ends: a find- ing that the defendant was negligent, coupled with a finding that the plaintiff was negligent. Having determined these issues, the finder of fact is next asked to apportion the blame between the parties. In other words, it must assign percent- ages of fault to the respective roles that the defendant’s and the plaintiff ’s neg- ligence played in causing the injury. Among the jurisdictions that have


adopted comparative negligence, there are two distinct brands.


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percentage of fault is assigned to the defendant, the defendant pays that per- centage of the award. If the jury finds the defendant 40% responsible and the plaintiff 60% responsible, for a $100,000 damage award, the verdict is reduced to $40,000. 2. Modified Comparative: Many states


impose thresholds of fault, that is, per- centages of negligence that the plaintiff must meet to make use of compara- tive negligence. The “not greater than” brand of comparative bars recovery by a plaintiff whose negligence is greater than the defendant’s – note a 50/50 plaintiff wins, because the negligence is not “greater than” the tortfeasor’s. There are “less than” states that permit recovery only when the plaintiff ’s negligence is less than the defendant’s - note a 50/50 plaintiff loses. A handful of states apply a “slight/gross” standard, in which the jury is told that the plaintiff can only recover if it finds that defendant’s role to be “gross,” while the plaintiff ’s to be “slight.” Armed with an understanding of what


it is, and how it works, comes the hardest question: why? Why upset contributory’s delicate balance, in favor of comparative negligence? Fairness. Tort law is a set of rules


that enforces society’s notion that a wrongdoer must, to the extent possible, make the victim whole - pay “fair com- pensation.” Fair compensation includes economic damages, so the injured can pay medical bills, repair property and supplement income lost while conva- lescing. Fair compensation also includes awards for non-economic damages to repay the injured for the loss the pre- cious ability to go about one’s day-to-day activities pain free.


(Continued on page 14) 12 Trial Reporter Fall 2007


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