Maryland High Court Declines to Declare the ‘Dinosaur’ of Contributory Negligence Extinct

To the great relief of defendants and liability insurers covering claims in Maryland, the Maryland Court of Appeals (the state’s highest court) recently declined to abrogate the common law doctrine of contributory negligence and replace it with a comparative negligence regime. Maryland thus remains one of only five jurisdictions (the others are Alabama, North Carolina, Virginia, and the District of Columbia) in which a plaintiff’s own negligence, however minor, completely bars recovery.

In Coleman v. Soccer Association of Columbia, the plaintiff was a 20-year-old soccer player who was severely injured when he jumped up and grabbed the goalpost crossbar after scoring a goal during practice. The goalpost was not anchored to the ground and it fell backward as the plaintiff held onto the crossbar, causing the weight of the crossbar to hit his face, injuring him severely. At trial, the plaintiff’s attorney requested a jury instruction on comparative negligence but the trial judge declined and instead instructed the jury on contributory negligence. The jury concluded that while the defendant’s negligence caused the plaintiff’s injuries, the plaintiff was also negligent and that his negligence caused, in part, his own injuries. That finding, under Maryland law, barred the plaintiff from any recovery.

The plaintiff appealed, and even before briefing and argument in Maryland’s intermediate appellate court, the plaintiff requested that the Court of Appeals answer whether Maryland should retain the standard of contributory negligence as the common law standard governing negligence cases. Supported by numerous amici, the plaintiff urged the Court of Appeals to abolish the contributory negligence doctrine and replace it with a form of comparative negligence, arguing that contributory negligence is antiquated and has been rejected by a majority of states across the country because of the harsh consequences to plaintiffs whose negligence is only a minor factor in their injuries. Indeed, the overwhelming majority of states apply the doctrine of comparative negligence, in which damages are apportioned relative to the parties’ respective roles in causing the injury. In a brief 5-2 opinion written by Judge Eldridge, however, the Court held that the decision to abolish the contributory negligence doctrine should be done, if at all, by Maryland’s legislature, known as the General Assembly. The Court noted that while it retained the ability to amend or update the common law, the law should not be changed contrary to the public policy of the state as determined by the General Assembly. In that regard, the Court relied heavily on the fact that in recent years the General Assembly repeatedly considered efforts to abolish the defense of contributory negligence and replace it with a comparative negligence regime but declined to do so. The Court of Appeals declared this “a clear indication of legislative policy at the present time.”

Two justices dissented in a colorful and lengthy opinion, which referred to contributory negligence as a “dinosaur” and a “fossilized doctrine” that should be relegated “to a judicial tar pit,” and predicted that a future Court of Appeals would end up abolishing the defense of contributory negligence in Maryland.

The full opinion may be found at

Bill Goldberg is a litigator in the Bethesda, Maryland law firm of Lerch, Early & Brewer, Chtd. He represents businesses and individuals in commercial and business litigation in federal and state courts across Maryland, including breach of fiduciary duty claims, contractual disputes, business torts, trade secrets and partnership dissolutions. Bill often serves as lead or local counsel for out-of-state firms and clients. For more information about filing complaints in Maryland, and other litigation matters, contact Bill at (301) 907-2813 or