What’s fair in fault-finding?

Lawmakers, businesses dispute proposed standards that would allow juries to consider a plaintiff’s actions when deciding awards

Under contributory negligence, if a plaintiff contributes even a small part to his own injury, he can’t receive damages. Under comparative fault, juries are allowed to assess how much a plaintiff contributed to an injury in deciding compensation.

The sponsor, Del. Luiz R.S. Simmons, sees his bill as a matter of fairness.

‘‘In my opinion, this is not a question of what’s good for business or what’s good for the plaintiff’s attorney. It’s what’s good for the public,” said Simmons (D-Dist. 17), a lawyer from Rockville.

‘‘If you are found to have been 1 percent negligent and the other guy is 99 percent negligent, you are barred from any kind of recovery,” Simmons said of the standard now in force.

A co-sponsor of the bill, Del. Michael D. Smigiel Sr., calls contributory negligence ‘‘antiquated” and ‘‘draconian.” ‘‘It brings more equity for those who are injured at no fault of their own,” said Smigiel (R-Dist. 36), a lawyer from Elkton.

A parade of opponents, however, says the change would hurt Maryland businesses and local governments.

‘‘Basically this legislation is going to mean more lawsuits for employers and more damages paid to people who contribute to their own injuries. And we think that’s a bad idea,” said Ronald W. Wineholt, vice president of the Maryland Chamber of Commerce.

The Maryland Association of Counties agrees: It’s a balance of whether local governments should spend more money on lawyers or on services.

‘‘From that perspective, citizens would rather the funds go to their needs. ... And when someone’s hurt and they can’t recover against somebody, it’s the government that comes in and takes care of the unfortunate,” said David Bliden, executive director of the counties association.

Ellen Valentino, state director of the National Federation of Independent Business, said Maryland prides itself on contributory negligence as a pro-business policy.

‘‘[The bill] will unite the small-business community, and then you’ll see strong opposition from all geographic areas of the state,” she said.

Insurance groups oppose the change, too.

David F. Snyder, vice president and assistant general counsel of American Insurance Association, said Marylanders pay the 12th highest automobile insurance premiums in the nation.

‘‘We just don’t believe there’s a margin of error in Maryland ... it would just get worse if you remove what we call a safety valve in the Maryland system,” he said.

To John A. Andryszak, a lobbyist representing business and insurance interests in Annapolis, a telling point is that the impetus for the change isn’t coming from average citizens.

‘‘If you’re only hearing from the trial lawyers with one or two horror stories, you don’t throw out a system that’s been in place for I don’t know how long in Maryland without a good reason,” he said.

Andryszak said he has seen comparative fault bills since 1966. They surface every four or five years, usually around an election, and they’re defeated each time, he said.

For the 2007 version, the sides will square off in a House Judiciary Committee hearing on Wednesday.

To supporters, the switch offers logic to what happens anyway. ‘‘Juries apply what amounts to comparative fault under the table,” said Kenneth S. Abraham, a University of Virginia law professor.

Even if a plaintiff is partly at fault, many juries take this into account in assessing damages, some supporters say.

If only anecdotes support that contention, however, Simmons said negotiations in comparative fault states are more rational.

Besides Maryland, only Virginia, Alabama, North Carolina and the District of Columbia still use contributory negligence.

To Smigiel, that means something. States have given up contributory negligence, a common law doctrine, ‘‘and the sky didn’t fall.”

‘‘I can’t say it’s the end of the world,” Andryszak said, ‘‘but there’s a lot to be said for having a stable legal system where all the players understand how it works, particularly the courts.”

The nation, however, has enough Republican-majority legislatures, Simmons said, that one of them would have decided to give up comparative fault and go back to contributory negligence.

‘‘I’m not familiar with a serious effort anywhere to change back,” Abraham said.

To Snyder, that kind of comparison is irrelevant because it ignores that each state has a unique combination of laws that affect litigation and litigation cultures.

Opponents point out that supporters of proportionality for plaintiffs object to proportionality for defendants. In Maryland, all defendants are responsible for a judgment even if some are only partially responsible.

Could there be a compromise with a bill that contained reform for both plaintiffs and defendants?

‘‘We’re not persuaded that we will get a fair shake in the whole issue,” Wineholt said.

The NFIB’s Valentino said flatly, ‘‘There is no middle ground when it comes to this issue.”

Hearing set

What: Comparative negligence (HB 110)

When: 1 p.m. Wednesday

Where: House Judiciary Committee, House Office Building, Annapolis