Op-Ed: Maryland should be careful about upending its liability law

This op-ed ran in the October 16, 2012edition of the Baltimore Sun

The personal injury lawyers’ bar likes to try to divide the personal injury systems of the 50 United States into two different buckets — contributory negligence and comparative fault — and then make up hypothetical cases to try to portray Maryland’s contributory negligence rule as unfair or antiquated. The fact is that in the 50 states, there are 50 different liability systems.

The common-sense rule in Maryland is the contributory negligence rule: that if a person contributes to his or her injury, he or she cannot recover damages for that injury. States that have adopted the other rule, comparative fault, have done so in numerous ways. In some states, a plaintiff who is 51 percent or more negligent recovers nothing. In other states, the cutoff is 50 percent. In still other states, even a 95 percent negligent plaintiff can sue for 5 percent of his or her damages.

Also within Maryland’s liability system is a rule called “joint and several liability.” Under that rule, a defendant who is 1 percent negligent can be forced to pay 100 percent of the damages if it turns out that the defendant who is 99 percent negligent is bankrupt or woefully underinsured. This is no mere hypothetical case. In asbestos cases, for example, the companies that made the lion’s share of asbestos-containing products have long since disappeared into Chapter 11, but cases continue against much smaller players and even companies that never made asbestos products but simply had them installed on their premises. Many other states have enacted variations of this rule.

In Maryland, we also have a rule of “strict liability” for the manufacturers of certain products — anything from power mowers to lipstick. Under strict liability, the jury is not allowed to consider any offsetting negligence of the plaintiff. None. Different states have different variations for this rule, too.

Is Maryland’s overall system of negligence perfect? No. Is California’s? Florida’s? No and no. Each system has certain costs and benefits. Making it easier for negligent plaintiffs to sue — as advocated on this page recently by Professor Donald Gifford of the University of Maryland Law School — may benefit some people, but it has very real costs to other people. More claims would be made, more lawsuits filed, more time spent by individuals, businesses and insurance companies handling and defending these claims and shouldering the costs. The state of Maryland and the local counties and municipalities in this state have made it clear through legislative testimony and court briefs that abolishing contributory negligence would have a profoundly negative impact on their fiscal condition, which affects all their residents.

The Court of Appeals, as Professor Gifford notes, is considering a case where it is being asked to address one piece of the negligence system and throw out the long-standing rule of contributory negligence. No court has the ability or the power to consider, in a single case, the entire negligence system — contributory negligence, joint and several liability, strict liability, and other rules. No court has the ability or the power to weigh the policy and fiscal implications of making drastic changes to Maryland’s system of negligence. Only the legislature has that ability. In Maryland, only our legislature, not the legislatures of 45 other states, can decide this.

When considering what is best for Maryland, our legislators who represent us in Annapolis have concluded, for nearly 2 generations spanning 47 years, that contributory negligence is not at all unfair or antiquated. To the contrary, over and over during nearly half a century, they have consistently found it to be the best public policy choice. The reason is simple: Contributory negligence encourages people to engage in ordinary care and avoid injury to themselves and others.

The case pending before the Court of Appeals is an attempt to upend the state’s negligence system by making an end-run around the legislature. The Maryland Chamber of Commerce has asked the Court to reject this appeal, and we will continue to urge the legislature to consider carefully all the impacts of changes to Maryland’s legal system.

Kathy Snyder is president and CEO of the Maryland Chamber of Commerce. Her email is ksnyder@mdchamber.org.





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