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

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Petitioners correctly contend that, because contributory negligence is a court-created
principle, and has not been embodied in Maryland statutes, this Court possesses the authority to
change the principle. This Court has recognized that (Ireland v. State, 310 Md. 328, 331–332
(1987)),
. . .
[b]ecause of the inherent dynamism of the common law, we have consistently held
that it is subject to judicial modification in light of modern circumstances or
increased knowledge. Equally well established is the principle that the common
law should not be changed contrary to the public policy of this State set forth by the
General Assembly. Kelley v. R.G. Industries, Inc., 304 Md. 124, 141. In the area
of civil common law this Court has not only modified the existing law but also
added to the body of law by recognizing new causes of action. Kelley (recognizing
cause of action against manufacturers or marketers for damages caused by ‘Saturday
Night Special’ handguns); Boblitz v. Boblitz, 296 Md. 242 (1983) (permitting
negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47
(1982) (deleting force as a required element of the action of forceable detainer);
Adler v. American Standard Corp., 291 Md. 31 (1981) (recognizing tort of abusive
or wrongful discharge); Lusby v. Lusby, 283 Md. 334 (1978) (abolishing the defense
of interspousal immunity in the case of outrageous intentional torts); Harris v. Jones,
281 Md. 560 (1977) (recognizing tort of intentional infliction of emotional distress).
Since the Harrison case, the General Assembly has continually considered and failed to
pass bills that would abolish or modify the contributory negligence standard. The failure of so
many bills, attempting to change the contributory negligence doctrine, is a clear indication of
legislative policy at the present time. . . . [T]he legislative policy in Maryland is to retain the
principle of contributory negligence.
Dissenting Opinion by HARRELL, J., which BELL, C.J., joins.
Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what
is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth
(the Cretaceous–Paleogene Extinction Event), wiping-out, in a relatively short period of geologic
time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong.
A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the
District of Columbia), feeding on the claims of persons injured by the negligence of another, but
who contributed proximately in some way to the occasion of his or her injuries, however slight
their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the
force of a modern asteroid strike, this Court should render, in the present case, this dinosaur
extinct. It chooses not to do so. Accordingly, I dissent. . . .
Notes
1. The persistence of contributory negligence? Is the Coleman court right to refrain from
altering its long-settled rule on grounds of democratic values and institutional choice? Note that
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