Imagine one of your employees, driving a company vehicle, rolls through a stop sign and smashes into another driver. The other driver was speeding and was dialing a number on her cell phone. So who is at fault? And most importantly, who has to pay?
Under current Maryland law, if you can prove that the other driver’s negligence – by dialing her cell phone and speeding – contributed to the collision, you could have a full defense against her negligence claims. This defense is called "contributory negligence," and it prohibits an injured person from recovering damages in a negligence claim if the injured person’s own negligence contributed to her injuries.
But Maryland business owner beware: the protective shield of contributory negligence may be coming to an end. Maryland has followed the doctrine of contributory negligence for nearly 160 years. Before the late 1960s, Maryland was not alone – contributory negligence as a bar to recovery was the dominant doctrine in America. Today, however, Maryland is one of only 4 states, along with the District of Columbia, that still recognize the contributory negligence doctrine. The other 46 states have rejected contributory negligence in favor of "comparative negligence." Under comparative negligence, if an injured party is partially at fault for his injury, it’s not an automatic win for the other side – instead, the injured party may still win but his recovery is reduced to the degree to which he was negligent. For instance, in the earlier example, if your employee was 90% at fault, and the other driver was only 10% at fault, you would be liable for 90% of the damages, rather than winning the case because of the other driver’s contributory negligence.
In November 2010, the Chief Judge of the Maryland Court of Appeals, Robert M. Bell, called on the Judiciary’s Rules Committee to study both doctrines, and asked the Rules Committee if Maryland’s highest court had authority to make the change by rule. Some, including a state lawmaker, have questioned whether the judiciary has authority to make such a change by rule.
On one hand, most states have abandoned contributory negligence, and it is not clear how much attention Maryland juries actually pay to the judge’s instruction on contributory negligence. But, on the other hand, contributory negligence is considerably more business-friendly, particularly in personal injury cases (e.g., slip and fall, products liability, or auto accidents), where businesses are typically defendants instead of plaintiffs. Local business groups are taking note of the potential change, which could give state businesses more exposure to lawsuits.
If you’re a Maryland business owner, weigh in below in the comments section on the potential change in Maryland’s negligence law.