My friend Wayne Willoughby wrote this excellent response to the tort reformers regarding the doctrine of contributory negligence in Maryland: by Wayne M. Willoughby, Public Information & Legislative Chair of Maryland Association for Justice
As a new legislative session begins it is not unusual to find misleading OP/ED pieces advocating positions that protect corporations from accountability for wrongful conduct. Nevertheless, “A Sneak Attack On Contributory Negligence?” (January 13, 2011) was unique in its audacity. The authors, registered lobbyists speaking for Maryland Citizens Against Lawsuit Abuse (MDCALA) and the National Federation of Independent Business (NFIB), respectively, insinuated that “personal injury lawyers” are manipulating the Maryland Court of Appeals to abrogate the contributory negligence defense through a rule change.
This absurd charge is an insult to the seven Judges of Maryland’s highest court, whose reputations for integrity and competence are unsullied, as well as the citizens and plaintiffs’ bar of this State.
There is nothing nefarious about the Court’s examination of contributory negligence, a legal doctrine that was created by judicial activism, not the legislature. Indeed, the highest courts in 12 states (Florida, California, Alaska, Michigan, West Virginia, New Mexico, Illinois, Iowa, Missouri, Kentucky, South Carolina and Tennessee) have already eliminated this judicially drawn-from-whole-cloth corporate defense tool.
The screed from MD’s CALA and NFIB should come as no surprise, however, being lifted from the usual CALA playbook that relies on misinformation and over-the-top rhetoric. But when you’re so busy carrying the water for special interests and corporate wrongdoers, it’s more convenient to rely on scare tactics and junk science than actual facts.
Despite their claims, eliminating the contributory negligence defense would not undermine personal responsibility; it would advance personal responsibility. For example, under current law a corporation whose carelessness is 99 9/10 % responsible for injuring a person is not held accountable to anyone for its wrongful conduct if the injured person contributed in any degree (here 1/10th of 1%) to causing the injury.
If the contributory negligence defense is abrogated, then everyone would be accountable for their own bad conduct, including the injured, who would receive compensation proportionately reduced to the extent he or she was at fault for the injury. Eliminating the contributory negligence defense thereby promotes both justice and personal responsibility.
Moreover, the Henny-Penny assertion the sky will fall on business absent the contributory negligence defense is nonsensical given that all but 5 jurisdictions have already jettisoned contributory negligence, including such business friendly/anti-litigation states as Utah, Wyoming, South Carolina, Nebraska, Kansas, South Dakota, Missouri, Texas, Oklahoma, and Delaware.
The MDCALA and NFIB lobbyists were also less than forthcoming in their “open season” story about a woman who allegedly was attempting to commit suicide at the time she was injured. Obviously intending to frighten or shock readers, the authors failed to reveal that the $14.1 million New York City verdict about which they complained was thrown out on appeal and the case ordered dismissed with prejudice. In other words, the legal system worked even without the contributory negligence defense.
The contributory negligence defense is an unjust and antiquated doctrine that undermines personal responsibility. The Court of Appeals should be commended for undertaking a judicial review of this judicially created doctrine.