Contributory Negligence is a legal concept precluding victims of an accident from obtaining any compensation for their personal injuries if they were negligent in any manner contributing to the accident. In simple terms, if you get into a motor vehicle accident largely caused by the negligence of the driver of another vehicle, you will not be able to recover if you “contributed” to the accident by your negligence, however small your negligence can be.

Maryland adopted the Second Restatement of Torts’ definition of contributory negligence. The Restatement defines contributory negligence as “the conduct on the part of the plaintiff that falls below the standard to which he should conform for his protection, and which is a legally contributing cause co-operating with the negligence of the defendant. . . . .” Broad definition which allows to kill plaintiffs’ very strong negligence claims at times by merely pointing out a small negligence on plaintiff’s part.
Some examples of contributory negligence could be a drunk driver speeding and driving in a street hitting a pedestrian who happened to be crossing the street not at the designated location, thus “contributing” to the accident. Another example: you are driving above the speed limit on a highway when a reckless/drunk driver cuts you off and causes the accident. The fact that you were speeding at the time of the accident can be regarded as a ‘contributory negligence’ sufficient enough to kill your personal injury claim.

In 2013, in Coleman v. Soccer Ass’n of Columbia, 432 Md. 679 (2013) the Court of Appeals of Maryland declined to abandon the contributory negligence in favor of the doctrine of comparative negligence, a law doctrine apportioning negligence percentages and reducing victim’s personal injury compensation by the percentage of his/her own negligence. Under the comparative negligence system, if an accident was caused 90% by the other party and 10 % by victim’s own negligence, victim’s compensation will be 10 % less than the full compensation to account for the victim’s own negligence. 13 states in the US use a pure comparative negligence system, while 33 more use some modified form of that system. Maryland is one of few jurisdictions which still use the contributory negligence along with Virginia, Alabama, North Carolina and the District of Columbia. In Coleman v. Soccer Ass’n of Columbia, the Court of Appeals of Maryland was invited to abandon the contributory negligence and adopt the comparative negligence system. However, the Court rejected it, reasoning if such a change was necessary, the state legislature was to do it and since the state legislature made several attempts in the past but failed to adopt the comparative negligence system, it was not up to the Court to make that decision.

If your personal injury claim is caught in a contributory negligence trap, the only chance to survive the dismissal of your claims and recover for your injuries is to apply an exception, called “last clear chance doctrine”. If the plaintiff has contributed to the accident by his own negligence but can show that after the plaintiff’s negligence, the defendant had an opportunity for a “fresh start” and a last clear chance to avoid the accident, but failed to utilize it, plaintiff can overcome the contributory negligence defense and proceed with the claims against the defendant. The 2009 case in Maryland, Wooldrige v. Price, 184 Md. App. 451 (Court of Special Appeals, 2009), defines the last clear chance doctrine as follows: The doctrine of last clear chance permits a contributorily negligent plaintiff to recover damages from a negligent defendant if each of the following elements is satisfied: (i) the defendant is negligent; (ii) the plaintiff is contributorily negligent; and (iii) the plaintiff makes “a showing of something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence. The theory behind the doctrine is that `if the defendant has the last clear opportunity to avoid the harm, the plaintiff’s negligence is not a “proximate cause” of the result.

In practice, contributory negligence remains to be a powerful weapon in the hands of defense attorneys when fighting a personal injury claims of the plaintiffs’ attorneys, while the doctrine of last clear chance remains largely an impractical tool which can be applied in limited situations applicable to a narrow set of facts.

Gorkhmaz M. Asgarov, Esq

is an Attorney & Counselor at Law with Greenblatt & Veliev, LLC, which is a litigation law firm based in Rockville, Maryland that provides services to individuals for personal injury, workers’ compensation, and criminal and traffic defense cases.

The information contained in this article is general in nature and is not offered as legal advice for any particular situation. The opinions and conclusions in this blog post are solely those of the author. Any links provided by the author in this article are for informational purposes only and by doing so, the author does not adopt or incorporate their contents.

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