Maryland Citizens Against Lawsuit Abuse Editorial
It has been said that contributory negligence is intended to discourage negligent behavior that causes accidents by denying recovery to those who fail to use proper care for their own safety.
That is such a dishonest statement when applied to vulnerable road users. Comparative negligence also denies full recovery to those who fail to use proper care for their own safety but proportionate to each party that failed to exercise proper care. Instead we have a system that looks at the victim and asks if they did everything 100% correctly they could have done to prevent this crash, if not then no recovery. Why should the victim be held to a higher standard then the perpetrator?
In a State that has some of the worst driver's in the country it makes no sense to me to try and keep their insurance rates low on the backs of their victims.
After the fold a couple of links to past fiscal policy notes that give a hint why this has not been changed yet.]
from Maryland Injury Lawyer Blog:
Todd Lamb, executive director of Maryland Citizens Against Lawsuit Abuse, and Ellen Valentino write an editorial in the Maryland Daily Record on the apocalypse that would occur if Maryland joined 90% of states in this country and adopted a comparative negligence standard. Essentially, the authors' argument makes two points: (1) comparative negligence should not be adopted by anyone other than the Maryland legislature and (2) comparative negligence would cause great economic hardship for Maryland.
I understand the authors' point that any change in the standard should come from the legislature. I think the majority of the Maryland Court of Appeals will agree with the authors on this. On the other hand, as Judge Bell pointed out in commissioning a study on contributory/comparative negligence, Maryland's contributory negligence rule is a common law rule. Arguably, the legislature's failure to act is not approbation of contributory negligence. Can the court never change a rule because the legislature has not changed it for them? But I'm getting too far afield... I can see arguments on both sides of this issue.
The idea that Maryland's economy is going to suffer from comparative negligence is just plain silly. Maryland, Virginia, Washington D.C., Alabama, and North Carolina are the only jurisdictions in the country that have retained contributory negligence. Has any serious economist - which I define for these purposes as someone who has taken an introductory economics course - suggested that these economies are meaningfully stronger and have lower inflation because of contributory negligence? Please.
Department of Legislative Services Maryland General Assembly 2007 Session FISCAL AND POLICY NOTE
Negligence Systems: Contributory Negligence, Comparative Fault, and Joint and Several Liability (This is referenced in the link above.)
Robert Bell (Chief Justice) recent memo.