MARYLAND ASSOCIATION
OF COUNTIES, INC.
March 7, 2010
The Honorable Brian E. Frosh
Chairman
Senate Judicial Proceedings Committee
2 East Miller Senate Building
11 Bladen Street
Annapolis, MD 21401-1991
The Honorable Joseph F. Vallario, Jr.
Chairman
House Judiciary Committee
101 Lowe House Office Building
6 Bladen Street
Annapolis, MD 21401-1991
Dear Chairmen Frosh and Vallario:
The Maryland Association of Counties (MACo) supports the retention of the common law
doctrine of contributory negligence for the State of Maryland and would resist a conversion to a
comparative fault model. This letter restates MACo’s long-standing position with respect to
comparative fault.
MACo is concerned about the November 8, 2010, request by Chief Judge Robert Bell to the
Standing Committee on Rules of Practice and Procedure. In the request, Judge Bell asked the
Committee to review how other jurisdictions treat contributory negligence and comparative fault
and:
“If the Court were to consider replacing the doctrine of contributory negligence, a common
law doctrine in Maryland, with some form of comparative fault:
(a) Whether, in the Committee’s view, the Court could effect that change by Rule, as
opposed to judicial decision;
(b) If the Court were to consider the adoption of such a Rule, what the form and content of
the Rule should be; and
(c) What related legal principles, such as joint and several liability, would need to be
considered concurrently.”
While MACo is not prejudging the work of the Rules Committee and will participate to the
extent allowed, MACo is concerned about the potential precedent of enacting a substantive
change to Maryland law through the Judiciary’s rules process, which has traditionally focused on
“practice and procedure” or “the administration of the courts.” MACo believes that the General
Assembly has already clearly spoken on this issue.
169 CONDUIT STREET, ANNAPOLIS, MD 21401
(410) 269-0043 BALTIMORE
(301) 261-1140 DC METRO
(410) 268-1775 FAX
WWW.MDCOUNTIES.ORG
The Honorable Brian E. Frosh
The Honorable Joseph F. Vallario, Jr.
March 7, 2011
Page 2
The issue of whether to adopt comparative fault has been before the General Assembly many
times, with the most recent being in 2007 when the Legislature considered House Bill 110 and
Senate Bill 267. In each instance the Legislature has declined to switch from the contributory
negligence standard.
Maryland’s adherence to a contributory negligence standard is a sensible public policy,
promoting responsible citizen behavior and a clear legal standard for jury consideration. The
principle requires citizens to act responsibly if they seek judicial assistance for injuries. In
addition, the principle is easily understood, particularly in contrast to a comparative fault
standard.
The Local Government Tort Claims Act (LGTCA) was enacted in 1987 and provides an
important and equitable strategy for accommodating a county’s need for fiscal security and the
public’s right to recover against local governments for tortuous actions. The LGTCA permits
responsible self-insurance and the establishment of a successful government insurance program.
The adoption of a comparative fault standard would seriously compromise this reasonable tort
reform. The doctrine of joint and several liability would also need to be revised.
In conclusion, MACo believes that any change from a contributory negligence standard
would undermine a well-established, fair, and easy-to-understand system and replace it with an
unnecessary and overly-complex system that would result in more lawsuits and potentially more
judgments against the counties. Such a change would also necessitate revision of other legal
doctrines and practices.
Respectfully yours,
Michael Sanderson
Executive Director
cc: Members, Senate Judicial Proceedings Committee
Members, House Judiciary Committee