Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
with another party’s different negligent act? Consider the facts of the Li case itself. How should
a jury apportion percentages of fault to the plaintiff, who made a negligent left turn, and the
defendant, who was driving over the speed limit? Is it 50-50? Or something else?
Alternatively, try comparing two parties’ faults when they do varying degrees of the same
negligent act. Consider an accident between Car P (the plaintiff car) and Car D (the defendant
car) on a road with a 35 mile per hour (mph) speed limit. Before the accident, Car P was driving
45 mph and Car D was driving 60 mph. Is their comparative fault 50-50, since they were both
driving over the speed limit? Or should their comparative fault scale with each additional mile
per hour they were driving over the speed limit, such that their fault split would be about 30-70?
Or is driving 25 miles per hour over the speed limit exponentially more dangerous than driving 10
miles per hour over the speed limit, such that their fault split should be something more like 10-
90?
Consider another wrinkle for comparative negligence regimes. In footnote 6a, the Li court
attempted to clarify that California tort law forces judges and juries to compare parties’ respective
faults rather than their respective causal responsibilities. The court modified the decision a month
after it was published to clarify that California’s negligence regime would only focus on fault.
But what’s the difference between a party’s fault and a party’s causal contribution? If the
California Supreme Court was confused between the two, what are the chances that future courts
and juries will understand the distinction?
Perhaps frustrated with questions like these, some state supreme courts have passed up
their opportunities to adopt comparative negligence regimes:
Coleman v. Soccer Ass’n. of Columbia, 432 Md. 679 (2013)
Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444
(1983), this Court issued a writ of certiorari to decide “whether the common law doctrine of
contributory negligence should be judicially abrogated in Maryland and the doctrine of
comparative negligence adopted in its place as the rule governing trial of negligence actions in
this State.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in
Harrison 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.”
The petitioner in the case at bar presents the same issue that was presented in Harrison,
namely whether this Court should change the common law and abrogate the defense of
contributory negligence in certain types of tort actions. After reviewing the issue again, we shall
arrive at the same conclusion that the Court reached in Harrison.
The petitioner and plaintiff below, James Kyle Coleman, was an accomplished soccer
player who had volunteered to assist in coaching a team of young soccer players in a program of
the Soccer Association of Columbia, in Howard County, Maryland. On August 19, 2008,
Coleman, at the time 20 years old, was assisting the coach during the practice of a team of young
soccer players on the field of the Lime Kiln Middle School. While the Soccer Association of
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