“It is not our task to invade the province of the General Assembly and enact into law a sweeping revision,” according to the concurring opinion of Judge Clayton Greene Jr., who was joined by three colleagues.
The case was brought by a former assistant soccer coach in Howard County who was injured after swinging from the metal crossbar of a goal.
In Maryland, along with the District and Virginia, plaintiffs such as the then-20-year-old coach, James Coleman, cannot be compensated if they are partly to blame for their own injuries.
Most other states allow juries to consider the relative fault of all parties in determining whether, and how much, to award a plaintiff.
In a 51-page dissent, Judge Glenn T. Harrell Jr. compared the current standard known as contributory negligence to a dinosaur that he said should be rendered extinct with “the force of a modern asteroid strike.”
Harrell, who was joined by recently retired chief judge Robert M. Bell, said the court has the power and the responsibility to depart from its previous 30-year-old ruling. He said Maryland should join 46 other states with systems that reduce a plaintiff’s compensation in proportion to his or her relative fault.
A jury in Coleman’s case found the Soccer Association of Columbia negligent for failing to properly secure the goal. But it also found Coleman partly to blame, prohibiting him from collecting any money to pay for treatment of severe facial fractures he suffered in the 2008 incident.
Maryland “has been left behind, one of the last bastions of contributory negligence in a world which has discarded it as unjust and outmoded,” Harrell wrote.
Over the years, the General Assembly has rejected dozens of bills that would shift to a system of comparative negligence. In his concurring opinion, Greene acknowledged that such a system may be “more equitable,” and he urged the General Assembly to tackle the issue.
It is too early to tell how enthusiastic the legislature might be for rewriting state law when only two judges dissented, including one who has since retired.
Del. Kathleen M. Dumais (D-Montgomery) tried unsuccessfully last session to press for a commission that would have wrestled with the implications of any change. In light of the court’s opinion and specific guidance, she said, there may now be more interest.
Bruce Plaxen, Coleman’s attorney, said Tuesday that the court “got it wrong and their reliance on legislative intent shows a lack of knowledge of what really goes on in Annapolis.”
Business interests, including the U.S. Chamber of Commerce, the American Insurance Association and the American Medical Association, have been successful in Annapolis — as they were in court — in arguing that such a sweeping shift in public policy would increase litigation, insurance rates and taxes.
Mathew Palmer, who handles government affairs for the Maryland Chamber of Commerce, applauded the court’s decision Tuesday and said his group would continue to advocate for preserving the system. “It’s one of many things that sets Maryland apart as being more business-friendly,” he said.