CONTRIBUTORY NEGLIGENCE DEFENSE REQUIRES CAUSATION

CONTRIBUTORY NEGLIGENCE DEFENSE REQUIRES CAUSATION   Contributory negligence is an absolute bar to recovery for plaintiffs in Maryland. It is a draconian and harsh rule. It means that if plaintiff was just 1% contributorily negligent he or she cannot recover from Defendant.   Therefore, this is a crucial defense for defendants and something Plaintiff have to vigorously challenge.   Establishing contributory negligence as an issue for the jury to consider is a two step process. First, the party alleging contributory negligence has to prove the negligence attributed to the other party.   Secondly, the negligence has to be the proximate cause of the accident. In Myers v. Bright, 327 Md. 395, 609 A.2d 1182 (1992), the Court of Appeals, explained that the plaintiff's negligence is not contributory negligence unless it is the proximate cause of the accident: Even assuming that Myers was definitely speeding, she is not barred from recovery unless the accident can be at least partly attributable to her rate of travelHN10 "Exceeding the speed limit does not constitute actionable negligence unless it [***12]  is a proximate cause of injury or damage." Alston v. Forsythe, 226 Md. 121, 130, 172 A.2d 474, 477 (1961). . . . "Evidence that a motorist was exceeding a posted speed  [*178]  limit or driving at an excessive rate of speed is not actionable unless such speed is a proximate cause of the accident. To show merely excessive speed is ordinarily not enough to support a verdict based on negligence unless there is some further showing that this excessive speed is a direct and proximate cause of the injury." Keith C. Miller, Automobile Accident Law and Practice, § 19.10 (1991) (footnote omitted) (hereinafter Miller). The analysis by the court once a negligent act by the plaintiff is proven is whether such negligence was the proximate cuase of the accident.   In the Myers case, plaintiff was negligent of speeding, but the court found that there was no causation between the speeding and the accident in that case. Therefore, there was no contributory negligence   The speeding in the Myers case can be considered "merely passive and potential" negligence and therefore it is non-contributory as a matter of law.   Another illustration of passive and/or potential negligence involves a case where one vehicle leaves the road and strikes someone on the shoulder who should not be there.   This was the case where the point of impact was on the shoulder of the road, appellee's truck must have drifted onto the shoulder and struck the decedent. It was that negligence, the failure of Hathaway to keep a proper lookout and control of his truck with the result that it drifted onto the shoulder and struck decedent,  [***18]  that was the direct cause of the decedent's death. Decedent's negligence, if negligence it is-- standing and/or walking a motorcycle along the mini-shoulder--was at best "merely passive and potential." On the other hand, Hathaway's negligence--failing to keep a proper lookout and control over his vehicle--was its "moving and effective cause." It follows that the issue should not have been presented to the jury. Rosenthal v. Mueller, 124 Md. App. 170, 181, 720 A.2d 1264, 1269-70 (1998)(Citing Schwarz v. Hathaway, 82 Md. App. 87, 95-96, 570 A.2d 348, 353 (1990))   Rosenthal v. Mueller, 124 Md. App. 170, 177-78, 720 A.2d 1264, 1268 (1998)

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