Maryland Retains Contributory Negligence

In an interesting decision, the Maryland Court of Appeals decided to retain the traditional doctrine of contributory rather than comparative fault.  See Coleman v. Soccer Association of Columbia, No. 9-2012 (Md. July 9, 2013). 

Several decades ago, the court in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), addressed whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place.  The court declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.”

In Coleman, the petitioner presented the same issue that was presented in Harrison, namely whether the court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, the court arrived at the same conclusion: that, although the court had the authority to change the common law rule of contributory negligence, it would decline to abrogate Maryland’s long-established common law principle of contributory negligence.

The opinion provides an interesting dialog as to which branch of government should decide such a substantial change to the tort law.  The majority and concurring opinions say that the issue of adoption of comparative fault is really one for the legislature to decide. Note my colleagues filed an amicus brief in the case on behalf of the American Tort Reform Association, Chamber of Commerce of the United States of America, and others, arguing for continued application of the contributory negligence doctrine.

 

State Supreme Court to Consider Comparative Negligence Doctrine

Here's a case to watch, especially for those with tort cases in Maryland. Coleman v. Soccer Assoc. of Columbia, et al. (Md., Sept. Term 2012, No. 9). The Court of Appeals of Maryland is considering whether to replace the longstanding contributory negligence doctrine with a comparative fault scheme.

A number of organizations, including the American Tort Reform Association and the Chamber of Commerce, have weighed in with an amicus brief to the Maryland supreme court.  These amici note that such a fundamental change ought to be a decision of the legislature; warn of the ripple effect of such a change on a number of other state statutes that utilize the concept of contributory negligence, and on the many related state common law doctrines such as last clear chance, assumption of the risk, joint and several liability, etc.

State Supreme Court Explores Plaintiff Fault in Enhanced Injury Context

The Indiana Supreme Court recently answered a certified question from the federal court asking whether, in a crash-worthiness case alleging enhanced injuries under the Indiana Products Liability Act, the finder of fact shall apportion fault to the person suffering physical harm when that alleged fault relates to the cause of the underlying accident. Green v. Ford Motor Co., No. 94S00-1007-CQ-348 (Ind. 2/8/11).  The court answered in the affirmative, laying out a two-step procedure for the consideration of a plaintiff's fault in enhanced-injury cases.

The case was a damages action by Nicholas Green against Ford Motor Company under the Indiana Product Liability Act, asserting that Green's 1999 Ford Explorer vehicle was defective and unreasonably dangerous, and that Ford was negligent in its design of the vehicle's restraint system. Back in 2006, while Green was driving the vehicle, it left the road, struck a guardrail, rolled down an embankment, and came to rest upside down in a ditch. Green sustained severe injuries. He sued, claiming that his injuries were substantially enhanced because of the alleged defects in the vehicle's restraint system. In the federal case, Green moved in limine to exclude any evidence of his alleged contributory negligence on the grounds that any conduct by him in causing the vehicle to leave the road and strike the guardrail was not relevant to whether Ford's negligent design of the restraint system caused him to suffer greater injuries he would not have otherwise suffered.

So in this "crash-worthiness" claim for the "enhanced injuries" suffered, Green sought to exclude evidence at trial regarding his own alleged initial negligence resulting in the vehicle leaving the road and striking the guardrail. Ford asserted that Green's product liability lawsuit is subject to Indiana's statutory comparative fault principles, which require the jury to consider the fault of Green in causing or contributing to the physical harm he suffered.

The "Crash-worthiness Doctrine" has been identified in numerous cases, e.g., Larsen v. General Motors Corp., 391 F.2d 495, 502 (8th Cir. 1968).  The notion is that, in light of the statistical inevitability of collisions, a vehicle manufacturer must use reasonable care in designing a vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. The reasoning is that the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that would have occurred as a result of the impact or collision absent the allegedly defective design.  Thus a normal risk of driving must be accepted by the user, but the policy is not to penalize the user by subjecting him to an unreasonable risk of further injury due to negligence in design.

The court noted that in both the state Product Liability Act and the Comparative Fault Act, the legislature employed expansive language to describe the breadth of causative conduct that may be considered in determining and allocating fault. Both enactments require consideration of the fault of all persons who caused or contributed to cause the harm. The Comparative Fault Act further specifies that, in comparative fault actions, the "legal requirements of causal relation apply." The state legislature has thus directed that a broad range of potentially causative conduct initially may be considered by the fact-finder, but that the jury may allocate comparative fault only to those actors whose fault was a proximate cause of the claimed injury.

Therefore, in a crash-worthiness case alleging enhanced injuries under the Indiana Product Liability Act, it is the function of the fact-finder to consider and evaluate the conduct of all relevant actors who are alleged to have caused or contributed to cause the harm for which the plaintiff seeks damages. An assertion that a plaintiff is limiting his claim to "enhanced injuries" caused by only the "second collision" does not preclude the fact-finder from considering evidence of all relevant conduct of the plaintiff reasonably alleged to have contributed to cause the ultimate injuries. From that evidence, the jury must then determine whether such conduct satisfies the requirement of proximate cause.  The fact-finder may allocate as comparative fault only such fault that it finds to have been a proximate cause of the claimed injuries. And if the fault of more than one actor is found to have been a proximate cause of the claimed injuries, the fact-finder, in its allocation of comparative fault, may consider the relative degree of proximate causation attributable to each of the responsible actors.

While a jury in a crash-worthiness case may receive evidence of the plaintiff's conduct alleged to have contributed to cause the claimed injuries, the issue of whether such conduct constitutes proximate cause of the injuries for which damages are sought is typically a matter for the jury to determine in its evaluation of comparative fault.  
 

Wisconsin Enacts Tort Reform

A Superbowl win. An upset of the previously undefeated No. 1 college basketball team.  Wisconsin is on a roll.  But of greatest interest to our readers is, late last month, Wisconsin's Governor Scott Walker (R) signed into law new tort reform legislation in that state.  The bill is regarded as the most extensive set of changes to Wisconsin's civil litigation system in decades.  Tort reform as a vehicle to improve Wisconsin's business climate was a campaign theme for the governor in the last election, and the reform bill was one of the first agenda items for the new legislature in January.  Republican majorities had been elected in both the state Senate and the Assembly last fall.

The Act contains several provisions that will affect plaintiffs and defendants in product liability  litigation.

  • Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.
  • The law establishes a higher legal standard for recovering punitive damages, as the plaintiff must prove that the defendant either acted with intent to cause injury to a particular person or persons or that the defendant knew that the action of the defendant that resulted in injury to one or more persons was practically certain to result in injury to one or more persons. 
  • The act adopts a Daubert-like standard for experts. The expert testimony must be based
    upon sufficient facts or data, the testimony must be the product of reliable principles and methods, and the witness must have applied the principles and methods reliably to the facts of the case.
  • With respect to strict liability claims, the bill borrows the definition of defect from the  Restatement (Third) of Torts.  A product is defective in design if the foreseeable risks of
    harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative
    design renders the product not reasonably safe.   
  • In an action for damages caused by a manufactured product based on a claim of strict liability, evidence of remedial measures taken subsequent to the sale of the product is not admissible for the purpose of showing a manufacturing defect in the product, a defect in the design of the product, or a need for a warning or instruction, but may be used to show a reasonable alternative design that existed at the time  the product was sold.
  • The law creates a rebuttable presumption that the product is not defective if it complied with relevant standards under federal or state law.
  • The act also modifies the market share or “risk contribution’’ theory that Wisconsin adopted in the lead paint litigation. The new law reaffirms the general rule that manufacturers, distributors, and sellers of a product may be held liable for damages only if the injured party proves that the specific product that caused the injury was manufactured, distributed, sold or promoted by the defendant.  The only exception is when a claimant can prove all of the following:
    1. That no other lawful process exists for the claimant to seek any redress from any other person for the injury or harm.
    2. That the claimant has suffered an injury or harm that can be caused only by a manufactured product chemically and physically identical to the specific product that
    allegedly caused the claimant’s injury or harm.
    3. That the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted a complete integrated product, in the form used by the claimant or to which the claimant was exposed, and that meets all of the following criteria:
            a. Is chemically and physically identical to the specific product that allegedly caused the claimant’s injury or harm.
            b. Was manufactured, distributed, sold, or promoted in the geographic market where the injury or harm is alleged to have occurred during the time period in which the specific product that allegedly caused the claimant’s injury or harm was manufactured, distributed, sold, or promoted.
          c. Was distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter.
          d.  The action names, as defendants, those manufacturers of a product who collectively manufactured at least 80 percent of all products sold in this state during the relevant
    production period.  

 

  • The law permits defendants to claim damages for frivolous claims,  that is, for actions undertaken solely for the purpose of harassing or maliciously injuring another.
  • Regarding comparative fault in an action by any person to recover damages for injuries caused by a defective product based on a claim of strict liability, if the injured party’s percentage of total causal responsibility for the injury is greater than the percentage resulting from the defective condition of the product, the injured party may not, based on the defect in the product, recover damages from the manufacturer, distributor, seller, or any other person responsible for placing the product in the stream of commerce.

A good model for other states considering tort reform.

More than any ad campaign, a civil justice system that is equitable and reliably predictable signals to employers that a state is truly open for business. Particularly in light of recent liability-expanding state court decisions, the new reform package enacted by Wisconsin will help convince employers that it’s a new day in the Badger State, according to the American Tort Reform Association

 

State Court Allows Double-Dipping Asbestos Claim

A state appeals court has ruled that an employer may face liability under New Jersey law for allegedly exposing a plaintiff to asbestos through contact with her husband's work clothes, even if she also had worked for the employer as a direct employee herself. See Anderson v. A.J. Friedman Supply, et al., No. A-5892-07T1, 2010 WL 3289061 (N.J. Super. Ct. App. Div.,  8/20/10).

Plaintiffs alleged that Bonnie Anderson contracted mesothelioma from one or both exposures to asbestos at the Linden Bayway Refinery owned by defendant Exxon Mobil Corporation (and home of the state's largest Christmas tree apparently).  The first was bystander exposure from laundering her husband John's asbestos-laden work clothes during his employment with Exxon from 1969 to 2003. (In Olivo v. Owens-Illinois Inc., 186 N.J. 394 (2006), the court had found that an employer could be liable for indirectly exposing family members to the asbestos fibers found on an employee's work clothes.)  The second was alleged direct exposure during Bonnie's own employment with Exxon from 1974 to 1986.

At trial, plaintiffs focused on the bystander exposure, and tried to downplay any significant exposure at work.  A defense expert agreed that the only epidemiologically established cause of mesothelioma is asbestos exposure; it is commonly accepted today that it's possible that women can get mesothelioma from asbestos dust brought home on the clothing of a husband or parent; and that mesothelioma has an average latency period of thirty-two years.

The trial court charged the jury that asbestos brought home by John need not have been the sole cause of plaintiff's asbestos-related injuries, but it must be a substantial contributing factor, and if the jury were to find that Bonnie's exposure occurring during the course of her employment was the sole cause of her injury or disease, it should return a verdict for Exxon.

Exxon appealed  from a judgment in favor of plaintiffs, awarding more than $7 million to the Andersons in compensatory damages.

The appellate court noted that this case presented a novel scenario of a single injury arising after a long latency period caused by one of two, or both, asbestos exposures.  The court of appeals framed the question as whether Mrs. Anderson could continue to assert a claim against Exxon if she was exposed as a result of washing the clothes but she was also an employee with possible direct exposure at that time. 

As to that question, the court turned to the "dual persona doctrine," which under New Jersey law generally provides that an employer may become like a third person, vulnerable to tort suit by an employee, outside the normal bar of the exclusivity of the workers compensation system, if and only if it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.

The court could find no close precedents, but one might think that the role of the defendant as employer of husband and wife and its supposedly distinct role in the alleged exposure due to the husband's work-related clothing do not rise to the the level of separate legal persons.  But the court affirmed the trial court's reasoning that Exxon had such a dual persona, having an employer capacity for an eight year period, but then having a separate "relationship" to Mrs. Anderson as a bystander for 20 years. It was thought unfair to the plaintiff not to let her pursue her claim based on her bystander exposure, which had "absolutely nothing" to do with her employment relationship with Exxon. That is, although Exxon could not be held liable based on her direct occupational exposure, it could be held liable pursuant to her separate exposure to the asbestos brought home by John from his Exxon job.

One might assume that if the employer was a "separate legal person" who was not protected by the workers comp scheme for purposes of the alleged bystander exposure, then at least the defendant could get some recognition on the verdict form of this separate legal entity/status.  But even though the trial judge viewed Exxon as "standing in two different pairs of shoes," the court refused Exxon's request to have the two legal persons listed on the verdict sheet, and declined to direct the jury to allocate fault between Bonnie's direct asbestos exposure as an Exxon employee and any bystander exposure from washing John's work clothes.

The court of appeals agreed, reasoning that the jury could not allocate any fault to Exxon as Bonnie's employer, because Exxon was immune from suit pursuant to the Workers Comp Act. The state's comparative fault doctrine provides that fault shall be allocated among each "party" in the case. The workers' compensation bar precluded Exxon from being a "party" in this litigation in its status as Bonnie's employer.

Thus, defendants like Exxon get the worst of both worlds: no safe haven under workers' compensation for having been the plaintiff's employer, and no allocation of fault to the "distinct" exposure because it was the employer under the workers comp scheme!