Harrison v. Montgomery County Board of Education

Davidson, J.,

dissenting:

In Maryland, as elsewhere, the common law may be changed by legislative act. It may also be changed by judicial decision if this Court is convinced that it has become unsound in the circumstances of modern life. See, e.g., *464Moxley v. Acker, 294 Md. 47, 52, 447 A.2d 857, 859-60 (1982); Kline v. Ansell, 287 Md. 585, 589-90, 414 A.2d 929, 931 (1980). As recognized by the majority, this Court has frequently modified the common law without deferring to the Legislature.1 Nonetheless, the majority here refuses to abrogate the doctrine of contributory negligence and to adopt the doctrine of comparative negligence by judicial decision. It chooses instead to defer to the Legislature.

The majority offers three basic reasons in support of its position. First, it finds that there has been neither "any general dissatisfaction with the contributory negligence doctrine” nor any previous "claim of a pressing societal need to abandon the doctrine in favor of a comparative fault system.” Additionally, it concludes that "the circumstances of modern life have [not] so changed as to render contributory negligence a vestige of the past, no longer suitable to the needs of the people of Maryland.” Second, it points out that on various occasions, the General Assembly considered but failed to enact laws replacing the contributory negligence doctrine with a comparative negligence doctrine. It concludes that "the legislature’s action in rejecting the proposed change is indicative of an intention to retain the contributory negligence doctrine.” Finally, it asserts that the question whether "to abandon the doctrine of contributory negligence in favor of comparative negligence involves fundamental and basic public policy considerations properly to be addressed by the legislature.” I do not find any of these reasons persuasive.

*465I do not agree that the doctrine of contributory negligence remains viable in the circumstances of modern life. Maryland initially adopted the doctrine of contributory negligence in 1847. Since that time, virtually every common law and civil law country, including England, has abandoned the doctrine of contributory negligence in favor of the doctrine of comparative negligence. In this country, 39 states have abandoned the doctrine of contributory negligence and have adopted the doctrine of comparative negligence — 31 by legislative enactment and 8 by judicial decision. Puerto Rico, the Virgin Islands, and Guam have abandoned the doctrine of contributory negligence in favor of the doctrine of comparative negligence. The United States Supreme Court has discarded the doctrine of divided damages in favor of the doctrine of comparative negligence in the field of admiralty law. In addition, virtually all of the legal commentators now favor discarding the doctrine of contributory negligence.

Manifestly, legislatures, courts, and commentators overwhelmingly agree that the doctrine of contributory negligence must be discarded in favor of the doctrine of comparative negligence. The fundamental reason for this virtually universal rejection of the doctrine of contributory negligence is that it is unfair. It is a harsh and arbitrary rule because its "all or nothing” approach permits fault on the part of an injured person to relieve another person partially responsible for the injury from all liability. Correlatively, legislatures, courts, and commentators overwhelmingly agree that the doctrine of comparative negligence produces a more just and socially desirable distribution of loss.

The massive erosion of the doctrine of contributory negligence evidences a compelling societal dissatisfaction with that doctrine, as well as a compelling societal demand for its demise. Moreover, this erosion evidences a basic attitudinal change in society’s concept of fairness. In my view, this attitudinal change is so substantial that it renders contributory negligence a vestige of the past, no longer suitable to the needs of people. I am not convinced that in Maryland, society’s concept of fairness differs in any signifi*466cant degree from the concept of fairness ,shared in all of those common law and civil law jurisdictions throughout the world that have abandoned the doctrine of contributory negligence in favor of the doctrine of comparative negligence. I am convinced that in Maryland, as elsewhere, the doctrine of contributory negligence has become unsound under the circumstances of modern life.

Additionally, I do not agree that the Legislature’s failure to replace the doctrine of contributory negligence with that of comparative negligence indicates a legislative intent to retain the contributory negligence doctrine. This Court has repeatedly held that the Legislature’s failure to enact legislation is a "weak reed upon which to lean” in drawing a positive inference of legislative intent. Automobile Trade Ass’n of Maryland, Inc. v. Insurance Comm’r of Maryland, 292 Md. 15, 24, 437 A.2d 199, 203 (1981); Harden v. Mass Transit Admin., 277 Md. 399, 406, 354 A.2d 817, 820-21 (1976). Moreover, this Court has repeatedly recognized that such an inference is particularly unreliable when there are alternative rationalizations, both equally palatable to explain the Legislature’s failure to act. Police Comm’r of Baltimore City v. Dowling, 281 Md. 412, 420-21, 379 A.2d 1007, 1012 (1977); Hearst Corp. v. State Dept. of Assessments & Taxation, 269 Md. 625, 644, 308 A.2d 679, 689 (1973).

Here, it may reasonably be argued that the Legislature’s failure to abolish the doctrine of contributory negligence evidences its judgment that the diffuse collateral issues associated with such a modification of the common law can better be resolved by the judiciary on a case by case basis than by the Legislature through a comprehensive enactment. Under these circumstances, the Legislature’s failure to act does not necessarily indicate an intent to retain the contributory negligence doctrine. Accordingly, in my view, legislative inaction here does not constitute an impediment to abrogation of the doctrine of contributory negligence by judicial decision.

*467Finally, I do not agree that it is more appropriate for the Legislature than for the courts to determine whether to abandon the doctrine of contributory negligence in favor of the doctrine of comparative negligence. In a recent article, Adopting Comparative Negligence: Some Thoughts for the Late Reformer, 41 Md.L.Rev. 300 (1982), Professor Kenneth S. Abraham made a thoughtful and sophisticated analysis of the propriety of judicial adoption of the doctrine of comparative negligence. There, he said:

"The argument that adopting a comparative negligence rule is beyond the province of the courts has always had a hollow ring to it. Contributory negligence, after all, is a court-created doctrine; the courts would seem not to be automatically precluded from modifying what they have created. And the reasons often given for abolishing contributory negligence — its unfairness in penalizing plaintiffs for very small amounts of carelessness and the case-to-case inconsistencies that result from relying on a rule that conflicts with the jury’s intuitive notions of fairness — are characteristically the kinds of arguments that courts consider in fashioning legal doctrine.
"Furthermore, at this point in the development of comparative negligence, a court considering the doctrine has more than theory to inform it. The argument against judicial adoption is ultimately that it would be antidemocratic — that so fundamental a decision about civil liability should be made by a representative branch of government. Yet never has a judicial decision to adopt comparative negligence been legislatively overturned even in those states whose legislatures had considered, but had not enacted comparative negligence prior to judicial adoption of the doctrine. That legislatures in these states did not overrule this judicial action obviously does not prove anything about the desires of the people of Maryland or their *468representatives. But it does suggest that concern about legislative prerogatives can be overemphasized.
"Finally, it is sometimes said that although the decision to adopt comparative negligence resembles the kind of choices typically made by courts, the subsidiary issues that must be faced in implementing a comparative negligence system are characteristically legislative. For example, if courts adopt comparative negligence, they also will have to decide how to treat the problems of joinder and set-off and the role of such doctrines as assumption of risk and last clear chance. Put this all together, the argument goes, and it amounts to a wide-ranging tort reform statute enacted by a court.
"The weakness of this argument is twofold. First, much of the law regarding these problems is judge-made. The courts have the authority and the competence to modify it. And no court would have to announce in a declaratory judgment its resolution of all these issues. At least some of these problems could be resolved on a case-by-case basis, in the way that courts usually make decisions. Second, and more important, the typical comparative negligence statute deals with few of these issues. The argument that the courts should defer to legislatures on such matters thus has no practical significance. Even in states whose legislatures have mandated comparative negligence the courts have had to develop detailed frameworks for implementing the doctrine and resolving the issues that arise after its adoption.
"In sum, the proper allocation of authority between legislatures and courts on this question is not crystal clear. Some of the issues that must be resolved in deciding whether to adopt comparative *469negligence are characteristically judicial issues. Others are less typically the kind that can be easily resolved by a court, but seem to have been left for judicial resolution even in the states that have enacted comparative negligence legislation. Unlike judicial resolution of constitutional questions, a court’s decision to adopt comparative negligence can be overturned or modified by the legislature. Thus, any threat to popular government from judicial adoption of comparative negligence can be remedied easily. Yet in none of the seven states whose courts have adopted comparative negligence has the legislature overturned that judicial decision. In each case, rather, legislatures have acquiesced in the adoption of the doctrine. Although there are arguments against the existence of judicial authority to adopt this doctrine, then, such action certainly is not obviously inappropriate. If anything, the balance seems to lie on the side of judicial authority to adopt comparative negligence. ” 41 Md.L.Rev. at 304-06 (footnotes omitted) (emphasis added).

I agree with Professor Abraham that it is appropriate for this Court to adopt the doctrine of comparative negligence and that there is no compelling reason to defer to the Legislature. Courts in other jurisdictions that have considered the respective roles of a court and a legislature in the development of the law, and have adopted the doctrine of comparative negligence, agree. Thus, in Alvis v. Ribar, 85 Ill.2d 1, 23-25, 421 N.E.2d 886, 896-97 (1981), the Supreme Court of Illinois said:

"Wie believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. There are, however, times when there exists a mutual state of inaction in which the court awaits action by the legislature *470and the legislature awaits guidance from the court. Such a stalemate is a manifest injustice to the public. When such a stalemate exists and the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society.
"The tenets of stare decisis cannot be so rigid as to incapacitate a court in its duty to develop the law. Clearly, the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of re-evaluation. This court can no longer ignore the fact that Illinois is currently out of step with the majority of States and with the common law countries of the world. We cannot continue to ignore the plight of plaintiffs who, because of some negligence on their part, are forced to bear the entire burden of their injuries. Neither can we condone the policy of allowing defendants to totally escape liability for injuries arising from their own negligence on the pretext that another party’s negligence has contributed to such injuries. We therefore hold that in cases involving negligence the common law doctrine of contributory negligence is no longer the law in the State of Illinois, and in those instances where applicable it is replaced by the doctrine of comparative negligence.” (Citation omitted).

Similarly, in Hoffman v. Jones, 280 So.2d 431, 436 (Fla. 1973), the Supreme Court of Florida said:

" 'It may be argued that any change in this rule should come from the Legislature. No recitation of authority is needed to indicate that this Court hns not been backward in overturning unsound prece*471dent in the area of tort law. Legislative action could, of course, be taken, but we abdicate our own function, in a fíeld peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.’” (Emphasis in original).

I agree that, when the application of a common law principle results in injustice, it is the duty of a court to modify the common law if a legislature has failed to act. The need for stability in the law cannot justify a court’s perpetuation of outmoded and unfair court-made doctrines.

In sum, unlike the majority, I agree with the overwhelming number of legislatures, courts, and commentators that the doctrine of contributory negligence has become unsound under the circumstances of modern life. Moreover, I do not agree with the majority that the Legislature’s failure to act constitutes an impediment to the judicial adoption of the comparative negligence doctrine. Additionally, I do not agree with the majority that there is any compelling reason to defer to the Legislature. Accordingly, I will not abdicate what I view as judicial responsibility to accommodate the law to the changing needs of society and to assure substantial justice. I would not relegate the people of this State to the perpetuation of a court-made doctrine deemed outmoded and unjust by all but 11 states and the District of Columbia. I would abrogate the doctrine of contributory negligence and adopt the doctrine of comparative negligence. I, therefore, respectfully dissent.

. See, e.g., Moxley v. Acker, 294 Md. 47, 52-53, 447 A.2d 857, 860 (1982); Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981); Adler v. American Standard Corp., 291 Md. 31, 43, 432 A.2d 464, 471 (1981); McGarvey v. McGarvey, 286 Md. 19, 28, 405 A.2d 250, 255 (1979); Lewis v. State, 285 Md. 705, 716, 404 A.2d 1073, 1079 (1979); Pope v. State, 284 Md. 309, 352, 396 A.2d 1054, 1078 (1979); Lusby v. Lusby, 283 Md. 334, 335, 390 A.2d 77, 77 (1978); Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611, 614 (1977); Lightfoot v. State, 278 Md. 231, 237-38, 360 A.2d 426, 430 (1976); Phipps v. General Motors Corp., 278 Md. 337, 352-53, 363 A.2d 955, 963 (1976); Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 200-01, 349 A.2d 245, 248 (1975); Deems v. Western Maryland Railway Co., 247 Md. 95, 100, 115, 231 A.2d 514, 517, 525 (1967); Carr v. Watkins, 227 Md. 578, 586, 177 A.2d 841, 845 (1962).