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How Does Maryland Law Treat Contributory Negligence Differently From Assumption Of The Risk?

Contributory negligence and assumption of the risk are two commonly raised defenses in Maryland. If I had to guess, without the benefit of seeing any statistical studies, I would say that contributory negligence is the defense most frequently raised by insurance defense attorneys in a personal injury trial. Assumption of the risk, by its nature, is typically confined to a specific set of facts that ultimately lead to a personal injury, and subsequent claims or litigation, but it is nevertheless a common contention raised by insurance companies and their attorneys. A ‘defense” or in these examples, an affirmative defense, is a curious concept. The proponent of an affirmative defense may make certain concessions. They may concede that there was an accident or other injury-causing event, and that the Plaintiff in the case was indeed injured. They may concede that the Plaintiff required medical care, or lost time at work, or both. They may concede that the defendant caused, in some way, the accident or situation that led to the injury. Nevertheless, in spite of these seemingly damning concessions, the proponent maintains that, even though injured and damaged through the fault of another, the injured person should be denied any financial recovery. The proponent can indeed be successful in preventing any award of damages under these circumstances by relying on one of these two doctrines.

The legal concepts of contributory negligence or assumption of the risk are typically articulated, advanced and argued by Maryland insurance companies through their chosen lawyers. Maryland insurers -whether they employ the “in-house” model, or resort to the more traditional method of retaining outside counsel- employ sophisticated, aggressive and highly effective attorneys to defend the cases brought against them. 

Although the focus of this article is the essential differences between these two legal doctrines, it is critical to note one glaring similarity in these two legal principles. Either defense, if proven by the proponent,  can operate as a complete bar to an injured plaintiff's recovery. In other words, if a jury determines that and is that an injured Plaintiff has contributed to the accident t that caused their injury, or assumed the risks of and voluntarily entered the situation that caused the injury- they will be precluded from any recovery whatsoever. When this occurs, this is one of the harshest results that I see under Maryland law. When an insurance company attorney is successful in persuading the jury that there either has been contributory negligence or an assumption of the risk a facially seemingly unreasonable and unjust result follows. It is possible in this scenario that a legal claim involving a seriously injured plaintiff, who has been harmed by the predominant- although not exclusive- wrongful misconduct conduct of the defendant But  is nevertheless denied any type of compensation for their injuries. This can and does occur even where a plaintiff has catastrophic injuries, or enormous medical expenses, or both.

In Maryland, negligence is sometimes defined as an actor behaving in a way that a reasonable person would not, or failing to do something a reasonable person would do in the same circumstances. Under Maryland law the elements of negligence are that:

  • an actor, who owed a duty to another person
  • committed an act or omission that breached that duty
  • that breach caused harm to another, and
  • that harm resulted in damages to the impacted person 

Contributory negligence, then, is where is a plaintiff causes in whole or in part, or contributes in some fashion, to the incident that gives rise to their injury. What makes contributory negligence so harsh in its application is that  the degree of contribution does not need to be significant to support a finding of negligence attributable to the Plaintiff. It is sometimes said that a plaintiff who was 1% at fault for an accident -as opposed to 99% of the fault being born by defendant- is nevertheless contributorily  negligent, and therefore precluded from any recovery. If such a finding I made, this result will still attach no matter how catastrophic or devastating the injury to the plaintiff,  or how overwhelming the evidence of responsibility on the part of the defendant. It is for these reasons that I contend the results where a contributory negligence argument is made and accepted can lead to particularly harsh -and unfair- results in a case.

How is a Maryland jury instructed on these defenses?
FULL TRANSCRIPT Let's talk for a moment about how a jury would be charged on the law if sufficient evidence of contributory negligence or assumption of the risk is demonstrated at trial. A jury would be told that a plaintiff cannot recover if their negligence is a cause of their injury. Special rules pertain to children when dealing with contributory negligence. They are not held to the same standard as an adult, but rather are held to a standard of a similar child in terms of age and experience. A jury would be charged that an individual - an injured plaintiff- cannot recover if they assumed the risk of their injury. They would also be told that an assumption of the risk is where a plaintiff, with full knowledge of the dangers involved, voluntarily chooses to engage in the conduct that ultimately causes the injury.

Most States have attempted to modify this ancient common law principle by adopting a system of “comparative fault”  where the respective degrees of responsibility are apportioned between the participants in an event. Under comparative fault principles, a plaintiff  who is found to be less than 50% responsible for causing the situation or event that led to their injury is nevertheless allowed to recover compensation for their losses,  although that compensation is offset by the degree, or percentage,  of fault attributed to them.

Whereas contributory negligence involves conduct that may be seen as mistaken, or accidental or just unwise or careless, assumption of the risk, on the other hand, involves intentional and knowing conduct on the part of the injured Plaintiff. Under Maryland law an assumption of the risk defense- in order to be proven and successful- must demonstrate that:

  • with knowledge of the potential consequences
  • an injured plaintiff intentionally placed themselves in the position, or in the situation, that led to their injury.

“In Maryland, it is well settled that in order to establish the defense of assumption of risk, the defendant must  show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” ADM P'ship v. Martin, 348 Md. 84, 90–91, 702 A.2d 730, 734 (1997)

Perhaps a classic illustrative example of an assumption of the risk is where a person engages in a highly dangerous or risky activity and a tragedy ensues, injuring that person. Any defendant in any subsequent civil action would most certainly argue that the plaintiff voluntarily and knowingly placed themselves in a position of peril or danger, knowing the potential ramifications, and therefore they assumed the risk of any subsequent injury that might occur as a consequence of their conduct. Indeed, courts in Maryland have sometimes discussed the concept of  assumption of the risk in terms of consent, or permission, by the plaintiff to be injured. These courts have found that a such Plaintiff enter “an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.” Crews v. Hollenbach, 358 Md. 627, 640–41, 751 A.2d 481, 488 (2000) (quoting Rogers v. Frush, 257 Md. 233, 243, 262 A.2d 549, 554 (1970). Other courts have discussed the notion that a Plaintiff who has assumed the risk has in effect  relinquished a future right to sue for damages. “[I]t is a previous abandonment of the right to complain if an accident occurs.” Warner v. Markoe, 171 Md. 351, 360, 189 A. 260, 264 (1937). Maryland courts routinely find that an injured plaintiff who has voluntarily chosen to walk across visibly icy or snowy pavement has assumed the risk that they may indeed fall and be injured. Therefore,  that unfortunate plaintiff is not entitled to any recovery in a negligence-based claim against the owner, or person who maintained that pavement. The concepts of contributory negligence and assumption of the risk are distinct, Maryland courts have noted some overlap.

“[A]ssumption of the risk and contributory negligence are closely related and often overlapping defenses and, the same conduct of a plaintiff can amount to both assumption of the risk and contributory negligence. Indeed, the overlap between assumption of the risk and contributory negligence is a complete one where the plaintiff's conduct in voluntarily encountering a known risk is itself unreasonable. When the overlap occurs, a discussion of contributory negligence may necessarily include assumption of the risk and the bar to recovery is two-pronged: 1) because the plaintiff assumed the risk of injury and 2) because the plaintiff was contributorily negligent. Conversely, the facts may warrant conflicting results under the theories, for example, a plaintiff who proceeds reasonably, and with caution, after voluntarily accepting a risk, not unreasonable in itself, may not be guilty of contributory negligence, but may have assumed the risk.” Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 31 A.3d 583 (2011).

It is likely little solace to an injured plaintiff to learn that there are not one, but two reasons to prohibit them from financial recovery for their injuries. In my experience, an insurance company is always going to seize on an opportunity to deny or limit an injured Plaintiff’s claim, and correspondingly, limit their financial exposure. Because they completely bar any recovery [or any liability for an insurer] assumption of the risk, and more frequently, contributory negligence are perhaps the most potent weapons in the arsenal.