Contributory negligence in Maryland can be a major hurdle to overcome in personal injury cases. Despite being contested by scholars and legal professionals alike, contributory negligence remains a viable defense for defendants in personal injury cases in Maryland, allowing defendants to refute fault if they can prove the plaintiff contributed at least one percent of negligence to the accident that led to their injury.
It is crucial for plaintiffs to build a strong case against the defendant that proves they were not at fault for the accident that caused them harm. This feat can be challenging to overcome alone, which is why the Law Offices of Adam M. Smallow wants to lend our legal support to potential clients. Our law firm understands the challenges that come with pursuing compensation through a personal injury case, and we are confident that we can help you fight for the financial recovery you need.
In this article, we aim to explain contributory negligence in detail. However, you are free to call our law firm at (410) 777-8960 for a free consultation about your case with a team representative if you prefer to learn about contributory negligence that way.
What Is Contributory Negligence?
Contributory negligence is a legal doctrine that bars plaintiffs from recovering damages if they negligently contributed to the cause of the accident that injured them. Even if they hold as low as one percent of contributory negligence, they may not be able to collect damages.
Maryland is one of four states (alongside Virginia, North Carolina, and Alabama) that abides by this doctrine, which is also upheld by Washington, D.C. To understand why contributory negligence remains in place today, we will go into its contemporary history in Maryland.
George Poole v. Coakley & Williams Construction, Inc. (2010)
In 2010, George Poole v. Coakley & Williams Construction, Inc. established “assumption of risk” in personal injury cases. In essence, if a defendant can prove that the plaintiff had prior knowledge of the risk of danger for the event or hazard that led to their injury, the plaintiff’s claims for damages may be disputed.
It can be difficult to prove a plaintiff’s assumption of risk, as evidence must be undisputed and based on fact, not the assumption that all people “should” have the same level of risk understanding. The defendant must prove that the plaintiff either had previous experience with the hazard or that the hazard was obvious enough to alert danger.
Coleman v. Soccer Association of Columbia (2013)
In 2013, James K. Coleman filed a personal injury lawsuit against the Soccer Association of Columbia after having a goal post fall on him, causing several facial fractures.
In the case Coleman v. Soccer Association of Columbia, the jury confirmed that the association was negligent for not anchoring the goal post. However, they also asserted that because Coleman, who was a volunteer soccer coach at the time, did not inspect to see if the goal was anchored before jumping up and grabbing the crossbar, he was also partially negligent for his injuries.
This case determined that contributory negligence was still a viable defense for defendants to use and is often sourced as the main reason Maryland still upholds the doctrine today.
Criticism of Contributory Negligence
Scholars have criticized the contributory negligence doctrine in Maryland, claiming it gives too much leniency to defendants and absolves them of accountability for plaintiffs’ damages.
In the Maryland Law Review Volume 73, Issue 3, scholars Donald G. Gifford and Christopher J. Robinette wrote an essay arguing that the doctrine should be abolished, noting that the doctrine is an antiquated law introduced in 1847 at the advantage of businesses, not the plaintiffs. Instead, they argue that comparative negligence should be adopted and that even one of the most business-friendly states (Delaware) also abides by comparative law.
For legal consultation with a Personal Injury attorney in Edgewood, call (410)777-8960
Why Is It Important to Consult a Lawyer Where Contributory Negligence Laws May Apply?
Contributory negligence can raise the stakes in personal injury cases due to the fact that plaintiffs can lose their right to receive damages if they share any percentage of fault with the defendant. For this reason, though it is not mandatory to work with a lawyer, you might want to consult a law firm to determine where your case stands before filing a lawsuit.
Some plaintiffs try to file an insurance claim if they do not feel confident in taking their case to court. However, one thing to remember is that insurance adjusters base their negotiation tactics on how likely your case is to succeed in court. Therefore, if they can find fault on your part after reviewing your claim, it might be difficult to negotiate compensation from the insurance company.
A Lawyer Can Review Your Case and Help You Determine Liability
One of the benefits of working with a personal injury lawyer is that they might already be aware of the established arguments the opposing party might try to argue. They can review your case and determine who might hold liability in the accident that caused your injuries.
In some cases, there might be more than one liable party. This is important because you would have to pursue compensation from each liable party separately. While it would be ideal to receive compensation from all liable parties, you might not be able to because of contributory negligence. However, whereas one party might be able to use this legal doctrine as a defense strategy, not every liable party might be able to place fault on you.
For example, let us say you were in an accident with a truck. Upon investigation, you might discover that the truck experienced a vehicle malfunction that contributed to the cause of the accident. Besides the truck driver and/or company, you might also be able to pursue compensation from the truck manufacturer or maintenance worker who last worked on the truck for not keeping the truck in its proper condition. Had it been in proper working order, the accident might have been avoided.
Continuing with this example, even if the truck driver or company tried to argue contributory negligence against you based on your driving, the truck manufacturer would not be able to make the same argument. Because you did not purchase or drive the truck, the truck manufacturer cannot absolve themselves of strict product liability, meaning they may be held liable for injuries caused by their product.
Every case is different, so it may be in your interest to consult a lawyer to determine which routes of pursuing compensation you might be able to take.
Edgewood Contributory Negligence Attorney (410)777-8960
If I Was Injured in Maryland, How Do Contributory Negligence Laws Affect Me?
How contributory negligence laws affect plaintiffs varies on how they were injured and what factors caused the accident that led to their injuries. The only blanket statement that can be made is that if you are found partially at fault for the accident, you may not collect damages for your injuries due to contributory negligence. However, that does not mean that any suspicion of fault on your side equates to contributory negligence.
When the Defendant Claims Contributory Negligence
After a plaintiff files a personal injury lawsuit against a potentially liable party, that party can review the case and determine whether they have grounds to deny your claim under contributory negligence. Defendants do not have an automatic right to claim contributory negligence as an attempt to avoid paying damages to the plaintiff.
To claim contributory negligence in Maryland, the defendant must be able to prove:
- The plaintiff had an assumption of risk: the defendant must prove that the plaintiff knew about the hazard and the risks it posed before getting injured. For example, drivers who speed on the road know they risk getting into a collision with people who pull out in front of them suddenly.
- The plaintiff contributed to the cause of the accident: the defendant must prove that the plaintiff’s actions or inactions also played a factor in how the accident occurred. For example, drivers who make an improper turn and then get hit from behind or the side might be held partially at fault for turning without signaling or when they did not have the right of way.
- The plaintiff could have avoided the accident if they practiced more care: if the defendant is found at fault for breaching their duty of care and the defendant can prove that the plaintiff also had a duty of care that they breached, they may claim contributory negligence. For example, all drivers have a duty of care to uphold on the road, including the plaintiff.
A personal injury lawyer can help fight for your case to not be affected by contributory negligence. Even if you think your case is foolproof or that it is seemingly obvious that the other party is at fault, our personal injury lawyers have handled various cases that have brought on their own surprises. We aim to be thorough when analyzing your case so that we can consider as many potential counterarguments as possible that the defendant’s attorney(s) or the insurance adjusters might bring.
Call the Law Offices of Adam M. Smallow for a free case evaluation at (410) 777-8960 . We can begin setting up your client file and strategize how to build your case. Call today.
How Do Contributory Negligence Laws Affect How I Calculate Damages?
Contributory negligence laws do not affect how you can calculate your damages. However, they can affect whether you receive them.
The contributory negligence doctrine in Maryland focuses on whether the plaintiff shared fault in their injuries, and if so, then they are not entitled to receive compensation for their damages. This is why it is crucial to have your personal injury case be as comprehensive as possible to defend yourself against any counterargument the defendant might make. In Maryland, any percentage of fault that you may be accused of could jeopardize your ability to collect money for your damages.
Calculating Damages in Personal Injury Cases
As mentioned, contributory negligence does not affect how you calculate your damages. However, once you calculate them, you might get a better understanding of the stakes contributory negligence brings to your case. If you are pursuing a substantial amount of money because you went through several medical procedures and suffered prolonged income loss because of your injuries, this should influence you and your legal team to approach your case as effectively as possible.
To calculate your damages, your personal injury lawyer may request certain pieces of evidence that demonstrate the value of your damages or that you experienced them, such as:
- Medical bills
- Receipts for prescription medicines, medical devices, and doctor’s appointments
- Proof of salary, such as paycheck stubs or tax forms
- Maintenance repair bills if your accident involves your vehicle, or the value of your vehicle if it was totaled
- Value assessment of other property that was damaged or destroyed in the accident
- Journal entries that detail your healing and recovery process
- Photos and videos of your injuries and their healing over time
- Testimonies from people who knew you before and after the accident
Certain damages might not have a monetary value assigned to them, such as pain and suffering or damages related to living with a permanent disability. Proving these damages can be tricky, but they may be factored in as general damages you suffered in addition to your financial losses. Your lawyer may use certain formulas to calculate this total and can explain how they reached your case value estimate to you.
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How Can a Maryland Car Accident Lawyer Help Me Win Compensation in a Case Where Contributory Negligence Laws Apply?
A Maryland car accident lawyer can help you fight for compensation by assessing where your case stands and factoring in its weak points. Even the strongest of personal injury cases can be brought down by contributory negligence in Maryland. At the Law Offices of Adam M. Smallow, our team can review your case and take the time to consider multiple factors that might be used against you in a contributory negligence argument.
Our law firm has handled multiple kinds of personal injury cases, so we can pull from those experiences to strategize how your case might go in court or negotiations. If we can collect enough evidence to support your case and prove that you played no role in the cause of your accident, we may be able to compel the at-fault party to cover your damages.
Negotiating a Claim Before Going to Court
A personal injury lawyer may be able to help you negotiate an insurance claim before you even have to go to court. While insurance adjusters might use contributory negligence as leverage to remain firm in the coverage they intend to provide, insurance companies in general do not want to deal with the costs and efforts of completing a trial case.
Your personal injury lawyer can help you formulate an argument that shows how the at-fault and/or liable party was negligent and present your case to the insurance company outside of court. In their presentation, they may be able to emphasize the impact that the accident had on you and your life and argue that you are entitled to compensation for your damages.
Unlike a court trial, which ends with a ruling by a judge or jury, negotiating an insurance claim also allows you to discuss the terms of your settlement, should one be reached. Your lawyer can review any settlement offer you receive and advise you on whether it is fair or whether you should keep negotiating for better terms. Having a personal injury lawyer by your side when facing insurance representatives can give you the comfort you need in the litigation process.
Representing You in Court
If you and the other party or parties cannot reach a settlement agreement, your lawyer can serve as your legal representative in a trial. You do not have to face your legal battle alone.
Your legal team can help you collect additional evidence if necessary and guide you throughout the trial process, including providing court updates as they come.
How Is Fault Determined in a Contributory Negligence Case?
In contributory negligence cases involving accidents or a specific event that led to injury, fault is determined by weighing the factors that led to the accident that injured the plaintiff, including whether one or more parties could have prevented the accident from happening. This can vary, depending on how the accident occurred.
For example, in a car accident case, your lawyer might consider the following questions when building your argument for who is at fault:
- Did the defendant owe a duty of care to obey traffic laws on the road?
- Was the defendant practicing good driving behavior?
- Could the defendant have avoided the accident had they taken certain precautions?
- What factors caused the defendant to breach their duty of care?
- Did the defendant crash into the plaintiff or contribute to the accident’s cause in some way?
- Did the defendant injure the plaintiff in the accident?
Your lawyer may then present this argument to a judge and jury at trial or to an insurance adjuster, who will then determine the percentage of fault both parties are guilty of in the case.
Percentage of Fault
In contributory negligence cases, percentage of fault is a critical determination because it can either make or break your case. In Maryland, any percentage of fault on the plaintiff’s end (even one percent) is grounds for the denial of compensation. Plaintiffs cannot collect any damages if they are considered at fault in any way for the accident that injured them.
Defendants know this and may try to skew the facts of the accident to argue that you were negligent in the situation, whether they accuse you of:
- Committing negligent behaviors, e.g., being distracted
- Knowing the risks involved beforehand
- Being a trespasser or committing other illegal acts (applicable to premises liability cases)
- Using a product incorrectly or altering it (applicable to products liability cases)
- Being capable of avoiding the accident but choosing not to
There is no set formula on how the percentage of fault is determined. However, the evidence you provide to prove your side of the story can help you make your argument more convincing. Your lawyer can advise you on what kind of evidence to include in your case file.
To understand more about how contributory negligence is determined, you can speak with a team representative at the Law Offices of Adam M. Smallow. Simply call our main line at (410) 777-8960 to start your free consultation and ask any legal questions you might have about your case.
What Evidence Do I Need to Prove Fault in a Case Where Contributory Negligence Laws Apply?
The kind of evidence you need to prove fault in a case where contributory negligence laws apply will vary on the case you are bringing forward. In general, you and your legal team may want to focus on collecting evidence that supports your claims about how the accident occurred, the extent of your injuries, and how the defendant was at fault for the accident, not you.
Read the following to get some examples of evidence you might use to support your case, depending on what your case involves.
Motor Vehicle Accident Cases
In cases involving motor vehicles, pedestrians, or bicyclists, you might collect evidence such as:
- The crash report
- Video footage from street cameras that captured the accident
- Surveillance footage from residences or businesses that captured the accident
- Cell phone records if you suspect the other driver was texting while driving
- Black box data or driving logs if a truck driver or company is involved
- Breathalyzer or blood test results if the other driver was suspected of drinking and driving at the time of the accident
Premises Liability Cases
If you sustained an injury on someone else’s property, you might collect the following evidence to combat contributory negligence:
- Video footage that captured the injury event
- Photos of the premises to demonstrate whether the property had proper warning signs or safety measures to prevent the accident from occurring
- Witness testimony, including statements about how long the hazard was present before it hurt you
Products Liability Cases
If you were injured by a defective product or dangerous drug, you may be able to use the following forms of evidence to support your case:
- Proof of purchase of the product
- A consumer expectations test, if appropriate
- The product in question to show its defective properties
- Video footage if you caught the accident on camera
Evidence for products liability cases can vary by the product. If your case involves a defective vehicle part, you might bring in a mechanic as an expert witness to discuss why and how the vehicle part was defective. If your case involves a pharmaceutical drug, you might bring in a medical professional to discuss why the drug was dangerous, which might involve discussing dosage amounts, drug ingredients, and side effects that were not listed on the label.
What Are Some Exceptions Where Contributory Negligence Laws Do Not Apply?
While contributory negligence in Maryland can prevent plaintiffs from collecting damages, this doctrine does not necessarily apply in all cases. According to the American Bar Association (ABA), contributory negligence might not apply:
- When the plaintiff is younger than five years of age
- In strict liability cases
- In cases where the last clear chance doctrine applies
The defendant would have to have a strong argument against the plaintiff to have contributory negligence apply in strict liability cases, such as cases involving a defective product or drug, as these cases generally hold more liability on the product manufacturer and seller to keep the public market safe from defective or dangerous products.
The “Last Clear Chance” Doctrine
The last clear chance doctrine varies by state, but it was created by judges as a response to the contributory negligence doctrine. It helps give plaintiffs a fighting chance to still be able to pursue compensation even if they share some fault in the accident.
The essence of this rule is based on the principle that the accident could have been avoided if the defendant had practiced more care. To use this doctrine, the plaintiff must prove that the defendant had the last opportunity to prevent the accident from occurring and injuring the plaintiff.
However, while this might be an option in some legal cases, utilizing the last clear chance rule can be difficult to argue. Your lawyer can explain whether this is a viable strategy to use in the event that the defendant in your case claims contributory negligence occurred.
Personal Injury Cases Involving Children Under Five
According to Maryland Law Review Volume 14, Issue 2, children younger than five years of age cannot contribute to their injuries and, therefore, cannot be considered negligent. This law applies to children of similar age and intelligence, in that children older than five may be assessed on the level of care they are required to have at their age.
A clear example of this rule is found in premises liability cases where a small child drowned in a pool. While the property owner might attempt to argue contributory negligence, the plaintiff’s lawyer may argue that the child was not old enough to understand the dangers of the pool or their surroundings and thus could not contribute to their own accident.
Why Is It Crucial to Consult a Lawyer After a Car Accident Where Contributory Negligence Laws May Apply?
Consulting a lawyer after a car accident in Maryland, where contributory negligence laws may apply, can help you determine what kind of legal options are available to you. Contributory negligence can prevent plaintiffs from collecting damages at all if they are found partially liable for an accident, even if their percentage of fault is only one percent.
A personal injury lawyer who works with car accident cases might be knowledgeable in determining which cases may have grounds to withstand any contests of contributory negligence. Also, if your car accident case involves multiple potentially liable parties, your lawyer may be able to assess whether each party would have reasonable grounds to use contributory negligence as an argument against you. If not, they might suggest filing a personal injury claim against more than one party to increase your chances of recovering some compensation, even if you are not successful with pursuing compensation from the at-fault party.
Consulting a personal injury lawyer may also help you understand what kind of evidence you need to submit with your car accident claim or lawsuit. If you are not able to obtain certain forms of evidence to support your case, your lawyer might be able to access resources on your behalf and retrieve this evidence as part of their legal duties to you. Evidence retrieval may involve:
- Contacting witnesses
- Getting security or traffic camera footage
- Requesting black box information from a trucking company or commercial business
- Requesting driving history and company log records
Get Legal Counsel from the Law Offices of Adam M. Smallow
Though it may not be mandatory to consult a lawyer after a car accident where contributory negligence laws may apply, you might still want to seek out the legal counsel they can provide. At the Law Offices of Adam M. Smallow, we offer a free consultation to everyone who calls us at (410) 777-8960 . After discussing your case with a representative of our law firm, you can decide whether you want to work with us on your personal injury case.
Our law firm tries to be as transparent as possible about our clients’ cases and encourages communication. In fact, we offer every client we take on a unique texting number they can use to access their legal team any time, any day of the week. This allows you to consult your legal team whenever you have questions, which can make a major difference in how secure you feel with your case.
What Is the Difference Between General Negligence and Contributory Negligence?
The difference between general negligence and contributory negligence is that general negligence is an argument aimed at the defendant, whereas contributory negligence is an argument aimed at the plaintiff. Also, contributory negligence can affect whether a plaintiff receives compensation or not.
Both sides may build their arguments using similar elements, but there are clear differences when arguing negligence against the defendant and contributory negligence against the plaintiff.
When a plaintiff brings a lawsuit, they will have the first opportunity to argue negligence. Their case may generally revolve around convincing a judge or jury that the defendant caused the accident that led to their injury due to their negligent actions or inactions, so the defendant should be held liable for damages.
This argument can be broken down into four elements:
- Duty of care: a person’s “duty of care” changes in different situations, but in general, this can be summarized as a duty to not cause harm to others. In car accidents, drivers have a duty to follow traffic laws to avoid accidents. Businesses must follow federal and state regulations to avoid harming consumers and customers. Property owners must keep invited guests safe on their premises.
- Breach of duty of care: if a person does not upkeep their legal responsibility to keep others safe from harm due to negligence, this behavior can be interpreted as a breach. The plaintiff must prove that the defendant should have known about a hazard or did know and proceeded to not fix it.
- Causation: the plaintiff must prove that their accident occurred because the defendant breached their duty of care. This establishes the cause and effect of the injury incident.
- Damages: the plaintiff must list all of the damages they experienced as a result of the accident. Damages can range from physical injuries to financial expenses directly or indirectly caused by the accident.
Arguing Contributory Negligence
Once the plaintiff presents their argument, the defendant may analyze it and submit a counter-argument of contributory negligence, which asserts that the plaintiff also contributed to the cause of the accident. In a way, this argument can also consist of the four elements of negligence. However, additional points may also be made, such as assumption of risk.
If a defendant can prove that the plaintiff took risk knowingly before getting into an accident, they may be absolved of liability. Assumption of risk is based on the premise that the plaintiff took actions or inactions while knowing there was risk involved in their choice, per the Legal Information Institute (LII). An example of assumption of risk would be a driver who chooses to speed or text while driving.
What Is the Difference Between Contributory Negligence and Comparative Negligence?
The difference between contributory negligence and comparative negligence lies in how they treat the parties in a personal injury case if both parties share fault for an accident. Contributory negligence in Maryland is more of an all-or-nothing doctrine that prevents the plaintiff from collecting any damages if they are found partially at fault for an accident, whereas comparative negligence allows plaintiffs to collect damages despite sharing some liability.
Many states have adopted a comparative negligence doctrine, but Maryland is not one of those states. Damages in a comparative negligence system are allocated based on both parties’ percentage of fault. The defendant must pay the damages that equate to their percentage of fault, and the plaintiff’s compensation may be reduced by their percentage of fault, per the Legal Information Institute (LII).
As an example, let us say that the plaintiff slipped on spilled juice and fell in a grocery store. However, security camera footage recorded the plaintiff texting on their cell phone at the time of the slip and fall. The defendant might claim that they were on their way to bring out a warning sign for the spill and that if the plaintiff was not texting on their phone, they would have noticed the spill and avoided it. The jury then decides to place the grocery store at 70 percent at fault, while the plaintiff is held at 30 percent at fault for not being aware of their surroundings.
What this means for the plaintiff’s compensation is that any awards they are entitled to collect must be reduced by their percentage of fault, which is 30 percent in this example. If they initially won $20,000, then they would collect $14,000.
The benefit of a comparative negligence doctrine is that it allows plaintiffs to collect compensation for their injuries even if they are partially at fault for the accident that caused them harm.
Contributory negligence, on the other hand, has almost no mercy for plaintiffs. If you are found even one percent at fault for an accident, you cannot collect any damages. Any amount of legal liability that the defendant is successful at proving you are guilty of can affect your case and prevent you from collecting compensation.
For this reason, it might be in your interest to get a personal injury lawyer who can anticipate the kinds of counterarguments the defendant might bring and help protect your case as you pursue compensation.
What Types of Personal Injury Cases Are Subject to Contributory Negligence Laws?
All personal injury cases are subject to contributory negligence laws if the defendants have reasonable grounds for claiming the plaintiffs contributed to the cause of their injuries in some way. Certain practice areas might be more impacted by contributory cases, such as car accident or slip and fall cases, due to more people filing these types of cases. However, in strict products liability cases, contributory negligence might not be as viable of a defense if the product did have known flaws—unless the plaintiff knowingly used the product despite its flaws.
Imputed Negligence in Motor Vehicle Accident Cases
Motor vehicle accident cases might be subject to additional contributory negligence laws, such as the doctrine on “imputed negligence.” Introduced by the Victoria Seaborne-Worsley v. Jeffrey Mintiens case, imputed negligence acts like vicarious liability for the plaintiff. This case asserts that the vehicle owner “may be held liable to a third party for the negligence of an individual who operates the motor vehicle while the owner is a passenger.”
Even though the owner might not have been driving the vehicle, they could be held liable for allowing a negligent driver to operate a vehicle they own. This doctrine might affect different kinds of parties related to plaintiffs, such as:
- Employers of the plaintiff if they were working at the time of the accident
- Parents of the plaintiff if the plaintiff is a teenage driver using their parent’s vehicle
- Companies that own the vehicle the plaintiff was driving but are not necessarily the employer, such as rental vehicle companies
Other Cases Affected by Contributory Negligence
Beyond motor vehicle accident cases, other types of personal injury cases that can be affected by the contributory negligence doctrine include:
- Premises liability cases, such as slip and fall accidents
- Construction accident cases
- Dog bite cases
- Boat accident cases
- Workplace accident cases
- Wrongful death cases
No matter what kind of personal injury case you want to bring forward, the team at the Law Offices of Adam M. Smallow wants to review your case. Call us at (410) 777-8960 for a free case evaluation from one of our team members, who can explain your litigation options and how contributory negligence might affect your case. We want your case to be heard because we know how deeply personal injuries can affect a person’s life. Reach out today for legal help.
How Do Contributory Negligence Laws Affect Slip and Fall Accidents in Maryland?
Because contributory negligence in Maryland can affect all personal injury cases brought forward in the state, defendants sometimes use this argument against plaintiffs in slip and fall accident cases. If a plaintiff is found to be partially at fault for the slip and fall that caused their injury, they may be deprived of compensation for their damages as a result.
Slip and fall accident cases can be difficult to prove in Maryland because of this doctrine, which is why many law firms shy away from these kinds of cases in personal injury law. However, the team at Law Offices of Adam M. Smallow may be able to review your case and determine whether contributory negligence can serve as a viable argument against you.
Property Owners Do Not Always Hold Liability
Slips, trips, and falls can occur anywhere, but when they occur on someone else’s property—be it private or public—liability may be in question. In many premises liability cases, property owners and managers hold liability over the safety of their guests and workers. However, this is not true in all cases.
In Anthony Martinez v. Daniel Ross, it was established that landowners who allow people onto their property for recreational purposes without charging a fee do not owe a duty of care to their guests or workers unless they are refusing to warn people out of malicious intent. If invited guests partake in risky activities on someone else’s property, they are also assumed to know about the risk and hold liability for their own actions.
Property Owners May Try to Shift Blame
Due to contributory negligence, a common defense tactic property owners use is to try to shift blame for the accident onto the plaintiff. For slip and fall accidents, a property owner might try to claim that the plaintiff:
- Did not wear the proper shoes for the environment: if the plaintiff slipped on ice or water without wearing slip-resistant or waterproof shoes, the property owner might blame their choice of footwear over the property conditions.
- Was distracted: the property owner might refer to security footage that reveals that the plaintiff was texting, talking, looking in a different direction, or distracted in some way before they slipped and fell.
- Was entering or in a prohibited area: if the plaintiff was trespassing on parts of the premises that were locked or had prohibition signs, the property owner does not hold liability for accidents that take place there. Trespassers do not have the same rights as invitees (guests) or licensees (workers or people invited for specific tasks).
How Does Contributory Negligence Apply to Product Liability Cases?
Contributory negligence is not as strong of a defense in strict products liability cases; however, there are still arguments available to sellers that they might use against plaintiffs.
According to the University of Baltimore Law Review, in 1976, Maryland adopted section 402A, which describes a strict liability formula for sellers to use as a defense. Established in Phipps v. General Motors Corp., this formula brings up defenses like assumption of risk, misuse of the product, alteration of the product, and comparative fault.
The Plaintiff’s Argument Must Prove the Product Was Defective
In strict products liability cases, plaintiffs who get injured by a defective product may sue the product manufacturer, designer, or seller, depending on the product defect. Product defects can generally be categorized as:
- Design defects: there was an error in the product’s design that made it unreasonably dangerous to the user.
- Manufacturer defects: the product was made improperly or poorly, which caused the product to malfunction or deteriorate even when the plaintiff used the product correctly.
- Marketing errors: the product’s labeling did not have the proper warnings, ingredients, or information that would have alerted the plaintiff of hazards before use.
According to a 1986 article in the University of Baltimore Law Review, plaintiffs in strict product liability cases might frame their argument as:
- There was a sales transaction for the defective product.
- The seller sold the defective product.
- The product has a defect that makes it “unreasonably dangerous” to its users.
- The plaintiff was injured by this defect.
- The product should not have been defective by the time it reached the plaintiff or the consumer.
How Sellers and Product Manufacturers Argue Against Strict Liability
As mentioned, there are established arguments that sellers and product manufacturers might use to be absolved of liability. These arguments are:
- Assumption of risk: the plaintiff knew about the risks involved with the product and decided to use the product despite knowing these risks.
- Misuse of the product: the plaintiff used the product incorrectly. If they had used the product in its intended manner, the product would not have been defective or dangerous.
- Alteration of the product: the plaintiff altered the conditions of the product after purchasing it. If the plaintiff had used the product in its original condition as it was sold, the product would not have been defective or dangerous. The alteration(s) might have also introduced the defect or risk.
- Comparative fault: both parties share negligence. However, because Maryland follows the contributory negligence doctrine, if the plaintiff shares any negligence, the defendant may be absolved from having to pay damages.
The Law Offices of Adam M. Smallow Can Help You with Your Contributory Negligence Case in Maryland
When a defendant counterclaims with contributory negligence, it can raise the stakes on your case. Getting a personal injury lawyer might help you collect the materials you need to make your case comprehensive enough to fight against the defendant’s claims about your role in the accident. Your lawyer may be able to collect evidence to support your recollection of how the accident occurred, and they might be able to build a case strategy that puts the defendant entirely at fault.
If you would like some legal assistance with your personal injury case, call the Law Offices of Adam M. Smallow at (410) 777-8960 for a free consultation. Our team understands the importance of contributory negligence in Maryland personal injury cases, so we intend to analyze the full scope of your accident so that you stand on a solid foundation in negotiations or trial. We can also suggest trusted, highly qualified medical providers that even our staff would see if we were injured.
Not sure if you will be able to afford a personal injury lawyer? Our attorneys work on a contingency-fee basis. Contributory negligence cases in Edgewood, Maryland, can be risky, so we understand if you are hesitant to take the challenge on. That is why we do not charge our attorney’s fees unless you win compensation. We do not get paid unless you get paid. Call today.