Comparative Negligence (Continued from page 16)


these cases. To be sure, there will be more payable claims in a comparative negligence system, but there are more funds to pay those claims from defense costs saved. In other words, more pre- mium dollars wind up compensating the injured, while fewer of those dollars wind up in the pockets of lawyers who defend lawsuits. Finally, defense interests who concede


that comparative negligence may be more equitable make one more argument. They seek to expand its apportionment of fault to joint tortfeasors. Two or more wrong- doers, who concurrently or consecutively combine to cause an indivisible injury, are jointly and severally liable. Each is responsible to the plaintiff for the entire amount, subject to his or her right to obtain a pro-rata contribution share from the other tortfeasors. The doctrine exists to ensure that plaintiffs are made whole, whenever possible, by those who


have wronged them. If the defendant pays more than its fair share, it can seek contribution from the other wrongdoers. When there is no contribution available, say due to a judgment-proof joint tortfea- sor, the loss is borne by those who caused or contributed to the injury, and not by the victim. If a jury can be trusted to set percent-


ages of fault between a plaintiff and a defendant the argument goes, why not have the jury make the same percentage- based findings among the defendants. Each defendant, it is touted, would then only pay his or her fair share. Leaving aside the problem of asking


Legal Directory Aug 2006.qxd 8/15/2006 10:20 AM Page 1


a jury to divide an “indivisible injury,” among multiple defendants, this so called fair share approach frustrates fair compensation. Comparative negligence is a doctrine that aims to set fair com- pensation. Joint and several liability is a public policy designed to ensure that, once fair compensation is awarded, there is a wrongdoer out there who can make the plaintiff whole. Sending an accident


victim out of the courtroom with the “hollow right” to seek payment from those who cannot pay obstructs and frustrates the actual collection of fair compensation awarded. Bear in mind that this is a plaintiff who has, in a com- parative negligence jurisdiction, already seen his or her damage award reduced to account for any plaintiff ’s negligence. Adoption of comparative negligence


has been stalled too long by those who warn of trouble, without offering concrete evidence that the doctrine is wreaking havoc in the rest of the coun- try. For 160 years, Marylanders injured by the negligence of others have been re-victimized in court by having their claims for medical bills, lost wages and pain and suffering barred by con- tributory negligence. Health insurance premiums, doctor’s bills and tax paying Marylanders have also been adversely af- fected by having to pick up the tab when contributory negligence lets tortfeasors off the hook. Those injured by the negligence of


Physicians demand experience. So should you.


M. R.Waite & Associates offers attorneys complete medical record reviews, interpretation and analysis – for the plaintiff as well as the defense. We can also locate testifying experts.


 Medical & Nursing Malpractice  Personal Injury Toxic Torts & Environment  Negligence Workers’ Compensation  Product Liability  Any case where health, illness, or injury is an issue


For a free phone consultation Call Today: 410-259-0800


others deserve something more than a chance to roll the dice in court, of- ten long after the accident date, to see whether a jury will find them totally free from fault. Comparative negligence is a better, fairer system. It is time that the Maryland General Assembly reduce, by one, the number of contributory negli- gence holdout states. n


About the Author


James MacAlister, a trial attorney with Saiontz, Kirk & Miles, received his JD from the University of Baltimore Law School. He was a judicial clerk to the Honorable William H. Adkins, II, Court of Special Appeals. From 1985-1990, he was an insurance defense counsel. Since 1990, he has represented plaintiffs in personal injury, workers’ compensation, DWI and criminal cases. He is a member of the MTLA Board of Governors, vice chair of the Workers’ Compensation and Amicus committees and a member of the Legislative Committee.


info@mrwaite.com  www.mrwaite.com 18 Trial Reporter Fall 2007


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60