Maryland’s high court considers rewriting rules for assessing fault


James Coleman, an assistant soccer coach, was badly injured when a goal crushed his face in 2008. He speaks to his lawyers before court. The suit against a major suburban soccer club went before the Maryland Court of Appeals. (Sarah L. Voisin/WASHINGTON POST)
September 10, 2012

The assistant soccer coach was horsing around during warm-ups, taking a few shots on goal. Then, as the assistant, James Coleman, jumped up to hang from the metal crossbar, the unanchored goal tipped over, crushing the 20-year-old’s face.

Coleman sued the soccer club in Howard County that he claims was responsible for the goal, and that suit reached Maryland’s highest court on Monday in a case that has far-reaching implications for the state’s consumers and businesses. It also has prompted a power struggle between the courts and General Assembly.

The Court of Appeals in Annapolis will decide whether to ditch the state’s long-standing all-or-nothing approach to assessing fault in civil lawsuits, which opponents consider harsh and outdated.

In Maryland, along with the District and Virginia, the court system essentially says to plaintiffs such as Coleman: If you are partly to blame for your own injuries — because, for example, you were messing around with a soccer goal — tough luck. You can’t be compensated for the defendant’s failures.

That’s not how it works in 46 other states that allow juries to consider the relative fault of all parties in determining whether, and how much, to award a plaintiff.

“We need a deterrent to prevent people from acting in a way that is unsafe,” Baltimore attorney Wayne Willoughby argued on Coleman’s behalf. “People who have harmed others get to walk away without being held accountable.”

Powerful interests, including the U.S. Chamber of Commerce, the American Insurance Association and the American Medical Association, have lined up on the other side to urge the court to leave such a a major policy decision in the hands of Maryland lawmakers. Over the years, the General Assembly has rejected dozens of bills that would loosen the restrictions.

Such a decision by the court would be “terrible for employers” and cause “years of chaos and litigation, confusion and needless expense,” said Paul A. Tiburzi, an attorney for the Maryland Chamber of Commerce.

Coleman’s appeal followed a jury’s decision last October that the Soccer Association of Columbia was negligent for failing to properly secure the goal. But the jury also found that Coleman shared some of the blame for his injuries, a decision that prohibited the court from awarding him any money to cover his medical bills. Coleman suffered severe facial fractures from the 2008 incident, according to court documents, and needed titanium plates in his face.

The soccer coach’s attorneys called the current system unfair and ineffective. They pointed to scholars, judges and policymakers in other states, who long ago rejected Maryland’s approach as inequitable because it fails to try to match responsibility and fault.

But the soccer association urged the court to let the legislature decide, and separately argued that the goal that injured Coleman was not the club’s responsibility or part of the practice field.

“There is no sense of unfairness in this case. He was the adult supervision,” the club’s attorney, Douglas W. Biser, told the court. “He misused this piece of equipment.”

Thirty years ago, the high court reaffirmed its 165-year-old ruling that established the state’s so-called contributory negligence doctrine. But Chief Judge Robert M. Bell has signaled the court’s interest — or at least his own — in shifting to a different system that considers the fault of all parties.

He asked an advisory committee of the court in a memo whether judges could adopt a different approach through a change in rules rather than a judicial decision. The committee recommended against it.

Bell’s memo and another recent decision imposing strict liability for pit bull owners has highlighted tension between the state’s high court and the General Assembly.

“I’m not comfortable with unelected judges trying to find ways to change the law,” said Sen. Allan Kittleman (R-Howard). “The court should see that it’s not the intention of the legislature.”

Montgomery Del. Benjamin Kramer (D) said such a change “screams out for increased litigation” for local governments and increased insurance costs for hospitals, doctors, businesses – and ultimately consumers.

Bell did not respond to a request for comment through a court spokeswoman and did not hint at his position in limited remarks during oral arguments.

Maryland lawmakers have not acted on dozens of bills that would move to a system in which a plaintiff’s compensation is reduced in proportion to his or her relative fault. In some of the 46 other states, for instance, plaintiffs may only seek damages if their level of fault is below 50 percent.

Even if the court decides to change the law, legislators could pass a bill to return to the current system. University of Maryland law professor Donald Gifford noted, however, that none of the other states that has embraced a system of so-called comparative fault have done so.

“Just because somebody happens to be a little bit careless and injured as a result of a business’s negligence, doesn’t mean that individual should be entirely denied compensation,” Gifford said.

Ann covers legal affairs in the District and Maryland for the Washington Post. Ann previously covered state government and politics in California, New Hampshire and Maryland. She joined the Post in 2005.
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