Donald Gifford, ‘The Death of the Common Law: Judicial Abdication and Contributory Negligence in Maryland’

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to overturn the antiquated, judge-made doctrine of contributory negligence that totally bars plaintiff’s recovery. A majority of the court’s members explicitly acknowledged that comparative fault is both “more equitable” and “more socially desirable” than contributory negligence. It also parroted the conclusion that it had the authority to overturn outmoded doctrines and praised the “dynamism” of the common law. However, the court refused to overturn contributory negligence because the legislature had repeatedly failed to do so. In this article, I critique the court’s opinion, its own understanding of its role as the state’s highest common law court, and its treatment of the legislature’s failure to modify the common law. I conclude that the court misunderstood its role and abdicated its judicial responsibility.

Gifford, Donald G., The Death of the Common Law: Judicial Abdication and Contributory Negligence in Maryland (July 26, 2013). Maryland Law Review Endnotes, Vol. 73, No. 1, 2013; U of Maryland Legal Studies Research Paper No. 2013-40.

First posted 2013-07-27 16:36:42

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