The law of five jurisdictions, Alabama, District of Columbia *, Maryland, North Carolina, Virginia, contains the doctrine of "contributory negligence".
An experienced Baltimore personal injury lawyer will advise clients that this principle, a leftover vestige from the common law of England, hundreds of years old, operates to deny any financial recovery whatsoever to a car accident victim found to be responsible, in even the smallest measure, for causing or contributing to the accident.
Other states have moved to a system of comparative fault, which allows a plaintiff injured in an auto accident, but whose fault contributed to some extent to the accident, to recovery their damages, so long as their percentage of fault does not exceed that of the defendant. Whatever the award, it is then reduced by the percentage of fault attributed to the plaintiff. But what if the injured person happened to be a child?
Children under five years of age can never cause or contribute to their injuries. Children over 5 are judged by the standard of conduct that children of similar age, intelligence and experience and development would be held to under similar circumstances.
Seasoned Baltimore personal injury lawyers know solace from the harsh application of contributory negligence principles may sometimes be found in notion of last clear chance. A plaintiff who caused or contributed to an accident would normally be barred from any recovery from the defendant, unless that defendant had a new opportunity – a last clear chance- and failed to prevent the harm to the plaintiff. A knowledgeable Baltimore personal injury may be able to successfully argue for and obtain a financial recovery for a negligent plaintiff using this concept.
A recent case shows the "Last Clear Chance" doctrine in action. The Maryland Daily Record [volume 122/Number 151] is reporting that a Baltimore personal injury lawyer has convinced a jury that the last clear chance principle should allow a negligent plaintiff to recover for his injuries. The plaintiff, an electrician, was severely injured when a circuit breaker exploded. The insurance company for the installer of the power system argued that the plaintiff was negligent for not having shut off the power prior to repairs, and therefore was barred from recovery. Plaintiff's personal injury attorney successfully argued that the representative of the defendant, present at the inspection, should have warned the plaintiff to turn off the power, and this was their last clear chance to avoid the injury.
* Washington DC law provides a limited exception to the harsh rule of contributory negligence. "The negligence of a pedestrian, bicyclist, or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar the plaintiff's recovery unless the plaintiff's negligence is [g]reater than the aggregated total amount of negligence of all of the defendants"
-This Article was updated by Eric Kirk on 2/7/19.