CWL 2009 #12 Comparative

From The WashCycle:

Yesterday I wrote about how the criminal law system treats a road user who injures or kills another road user. But the civil law system is also in need of reform. In the Leymeister crash, the driver was found to be guilty of negligent driving and fined $313, but at least the family can sue her, right? Well they can, but it will be very difficult to win. Maryland is one of five states that use Contributory Negligence to establish damage awards. Contributory Negligence is

based on a policy originally established in England that stated a person who negligently causes harm to another cannot be held liable if that injured individual contributed to his own suffering and injury, even if it was only a very slight factor. For example, if Dave and Debbie were in an accident where Jane was injured, and Jane was only 5% at fault, she would recover nothing.

In fact, the standard is that if Jane was even 1% at fault she would recover nothing. With the numerous statements by the police that Leymeister's lane position was a "major contributor" to the accident, it will be easy to convince a jury that Leymeister "contributed" to his death.

This method of calculating damages is still followed in states with a pure contributory negligence system. In light of the potentially harsh result, most states have moved from the strict nature of a pure contributory negligence system to some form of a comparative negligence system.

There are only 5 states that use pure contributory negligence and Maryland, DC and Virginia are three of them (Alabama and North Carolina are the other two). The UK, who gave us this law, has moved away from it as well.

In a DC case, an injured cyclist was unable to get any compensation after they were hit by a truck driver making an illegal right turn. The cyclist was found to have contributory negligence for not anticipating that a truck would illegally turn into him. (Here's another Maryland case).

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More points plus a discussion: <a href="http://www.thewashcycle.com/2010/01/cwl-2009-12-comparative.html">http://www.thewashcycle.com/2010/01/cwl-2009-12-comparative.html</a>;