Welcome back for Part Two of our “Contributory Negligence” discussion. Be sure to read Part One first.
One of the arguments often heard in support of contributory negligence is that without it, there will be a flood of litigation on “weak cases” which will clog the courthouses and raise insurance costs. But this claim is unsupported. In fact, contributory negligence is often misused by insurance carriers early in the tort process to avoid the payment of claims. Maryland insurance carriers routinely deny claims outright, relying on absurd contributory negligence arguments. These denials leave the victim with no option but to file suit and undertake costly and time-consuming litigation.
Consider the following:
An employee in a 24-hour convenience store in Ellicott City mops the floor at 2 a.m. and, without putting any “wet floor” or other warning signs up, goes back to work the cash register. The very next patron in the store, a SWAT team officer on his way home from the job, slips on the wet tile and slams to the floor striking his head and back. The insurance carrier for the store denies the claim, arguing that the patron “should have seen the wet floor” and was himself negligent.
A motorist on her way to work in the early morning hours approaches a flashing traffic light in Rockville. Her signal is flashing yellow. The cross street is flashing red, requiring drivers on the other street to stop and yield. As she enters the intersection on the flashing yellow, a motorist from the other street pulls right across her lane, causing a bad car accident, with substantial property damage and resulting injuries. The insurance carrier denies the claim, acknowledging that while their driver had a flashing red light, the favored driver “should have seen him coming” and was negligent for somehow not avoiding the accident.
A man is working a recycling truck in Montgomery County. The truck stops momentarily in front of some homes, and the worker exits the truck and starts across the road to pick up a recycle bin. He is struck by a car attempting to improperly pass the truck on the wrong side of the road. The worker lands on the hood of the car until the car veers off the road, when he is then thrown to the ground, sustaining injuries. The carrier refused payment, arguing that the worker was negligent in that he should have known that cars would try to pass the truck on the wrong side of the road.
The foregoing examples are not theoretical. They are summaries of actual cases we have handled at Sussman & Simcox. In each case, liability was denied by the carrier early on. In each case we were required to file suit and engage in costly and time-consuming litigation just to establish that the other party was solely at fault. Clearly, these cases show that it is frequently the contributory negligence defense itself that generates unnecessary lawsuits.
Contributory negligence is not a new concept at the forefront of modern legal trends. In fact, it is a centuries-old concept inherited from English common law that has fallen into disfavor around the country. Maryland is now one of only four states and Washington, D.C., that still rely on contributory negligence, putting Maryland at the trailing edge of this issue, not the leading edge. The other 46 states have adopted some form of comparative negligence as the proper method for more fairly assessing tort claims.
Under this principle, if a victim was him/herself negligent, the victim can still recover for their injuries, but that recovery is simply reduced in proportion to their fault. So if a jury finds a pedestrian 1% negligent in the happening of an accident, and finds an intoxicated motorist 99% at fault, the jury’s dollar verdict is reduced by 1%. On a $10,000 verdict, the victim would recover from the defendant $9,900 toward medical bills, wages, etc.
This is a far more equitable result than awarding the injured party nothing, while freeing the primary culprit from all responsibility. Further, it precludes the outright denial of claims by insurance carriers early on, leading to quicker settlements, and less litigation.
Throughout the year, you may read or hear arguments by the insurance lobby in Maryland as to will happen to our court system or insurance rates if we do away with contributory negligence. You really have to ask “What does the rest of the country know that we don’t?”