Harrison v. Montgomery County Bd. of Educ.

Decision Date02 March 1983
Docket NumberNo. 17,17
Citation456 A.2d 894,295 Md. 442
Parties, 9 Ed. Law Rep. 919 Michael E. HARRISON et al., v. MONTGOMERY COUNTY BOARD OF EDUCATION et al.
CourtMaryland Court of Appeals

Jacob A. Stein, Rockville (Glenn A. Mitchell, Basil J. Mezines, Gerard E. Mitchell, Michael G. Charapp, Robert F. Muse and Stein, Mitchell & Mezines, Rockville, and Robert Paul Hillerson, Silver Spring, on the brief), for appellants.

H. Thomas Howell and John H. Mudd, Baltimore (Susan T. Preston, David R. Owen, Semmes, Bowen & Semmes, Baltimore, Paul V. McCormick, McCormick, Sullivan & Talbott, Rockville, on the brief), for appellees.

Leo A. Hughes, Jr., David E. Furrer and Steen, Hughes & Seigel, Baltimore, on the brief, for amicus curiae Maryland Trial Lawyers' Ass'n, Inc.

James J. Doyle, Jr., Carl W. Caputo and Doyle & Langhoff, Baltimore, on the brief, for amici curiae The National Ass'n of Independant Insurers and Alliance of American Insurers.

Edward S Digges, Jr., Robert Dale Klein, Michael T. Wharton and Piper & Marbury, Baltimore, and William H. Crabtree, Detroit, Mich., on the brief, for amicus curiae The Motor Vehicle Mfrs. Ass'n of the U.S., Inc.

James A. Biddison, Jr., Baltimore, Valarie R. Watts, Salisbury, Md., Robert B. Murdock, Hagerstown, and H. Edward Holtz, Washington, D.C., on the brief, for amici curiae Baltimore Gas and Elec. Co. Delmarva Power & Light Co. of Maryland, The Potomac Edison Co. and Potomac Elec. Power Co.

James J. Doyle, Jr., Carl W. Caputo and Doyle & Langhoff, Baltimore, on the brief, for amicus curiae The Alliance of American Insurers.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ., and W. ALBERT MENCHINE, Retired Specially Assigned, Judge.

MURPHY, Chief Judge.

The issue in this case is 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.


On April 26, 1978, Michael Harrison, fourteen years old and an eighth-grade student at Gaithersburg Junior High School in Montgomery County, attended a required physical education class. Since the weather was bad, the class was held in the school gymnasium, with approximately sixty-three children participating in a "free exercise" day. The teachers allowed the students to use any of several pieces of athletic equipment in the gym. Along with several other students, Michael practiced tumbling maneuvers on a crash pad (a cushion six to eight inches thick) located at the end of a wrestling mat. On the last of several attempts to complete a running front flip, Michael apparently lost control and was severely and permanently injured when he landed on his neck and shoulders. As a result of his injuries Michael is now a quadriplegic who requires constant supervision and attention.

Michael's mother, for herself and on Michael's behalf, filed suit in the Circuit Court for Montgomery County against the Montgomery County Board of Education and the three gym teachers present when the accident occurred. The suit, in three counts, alleged negligence on the part of all defendants in allowing Michael to engage in a dangerous activity without proper supervision; in failing to properly train Michael before permitting him to engage in the dangerous activity; and in failing to provide proper equipment to protect Michael while he engaged in the dangerous activity. Negligence on the part of the Board in failing to properly train the defendant teachers was also alleged in another count of the declaration.

At the ensuing jury trial, the defendants relied, in part, upon the doctrine of contributory negligence as a complete defense to the plaintiffs' claim. The plaintiffs, on the other hand, sought jury instructions that the doctrine of comparative negligence, and not contributory negligence, should be applied. Specifically, the plaintiffs sought three instructions: (1) a "pure" comparative negligence instruction to the effect that if Michael was negligent, and his negligence was a cause of his injury, the jury "must diminish his damages in proportion to the amount of negligence attributable to him"; (2) a "modified" form of comparative negligence that if Michael's negligence "was not as great as defendants' negligence, [he] may still recover damages but his damages must be diminished in proportion to the amount of negligence attributable to him"; and (3) another "modified" form of comparative negligence that if Michael was only slightly negligent, and the negligence of the defendants was gross in comparison, Michael could still recover "but his damages must be diminished in proportion to the amount of negligence attributable to him."

The trial judge (John F. McAuliffe) rejected the plaintiffs' proposed comparative negligence instructions. Instead, he instructed the jury, in accordance with the established law of Maryland, that if Michael was contributorily negligent, it would be a complete bar to the plaintiffs' claim. Judge McAuliffe defined contributory negligence as "the failure of a plaintiff to act with that degree of care which a reasonably prudent person would have exercised for his own safety under the same or similar circumstances." The jury returned a verdict in favor of all defendants and the plaintiffs appealed to the Court of Special Appeals. We granted certiorari prior to decision by the intermediate appellate court to consider the significant issue of public importance raised in the case.


The plaintiffs argue that the doctrine of contributory negligence is outmoded, unfair, has no place in modern tort law and should be abandoned in favor of comparative negligence. They contend that application of the contributory negligence doctrine worked a substantial injustice in this case which involves permanent damage to Michael's spinal cord. They say that Michael has extensive paralysis and is totally dependent on others for all of his physical needs, his chances of improvement being all but nonexistent. They contend that the evidence of negligence on Michael's part was slight, at best. The plaintiffs suggest that in light of the substantial evidence of the defendants' negligence, it is unfair and unjust that Michael must bear the burden of this devastating injury by himself. The plaintiffs maintain that thirty-eight states, Puerto Rico, the Canal Zone, the Virgin Islands, Guam, and virtually every common law and civil law nation, including England, have abandoned contributory negligence and have adopted a rule that apportions damages on the basis of respective fault. They argue that contributory negligence is a judicially created rule in Maryland, which this Court is empowered to and should now change. They urge our understanding that the doctrine is not only harsh and unjust, but that in a legal system which rests on liability for fault, it is an anomaly that fault on the part of the plaintiff can completely relieve the defendant of all liability. In support of their position, the plaintiffs draw attention to the barrage of criticism levelled by the legal commentators against the "all or nothing" extreme required by application of the contributory negligence rule. Virtually all of these scholarly writings, plaintiffs suggest, advocate abolition of contributory negligence as being a harsh and arbitrary rule, one contrary to the basic notion of tort law that liability must be determined by fault. According to the plaintiffs, most of the commentators advocate adoption of the "pure" form of comparative negligence which apportions losses on the basis of fault, with each party bearing the portion of the loss directly attributable to his conduct. They rely, in particular, upon two articles in Volume 41 of the Maryland Law Review (1982): E. Digges and R. Klein, Comparative Fault in Maryland: The Time Has Come, at 276-299 and K. Abraham, Adopting Comparative Negligence: Some Thoughts for the Late Reformer, at 300-315.

Additionally, the plaintiffs rely upon cases in eight states which have judicially abrogated the doctrine of contributory negligence in favor of the rule of comparative negligence. See Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Li v. Yellow Cab Co., 13 Cal.3d 804, 532 P.2d 1226, 119 Cal.Rptr. 858 (1975); Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Alvis v. Goetzman v. Wichern, Iowa, 327 N.W.2d 742 (1982) Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981); Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981); Bradley v. Appalacian Power Co., 256 S.E.2d 879 (W.Va.1979). Of these jurisdictions, seven have adopted the "pure" form of comparative negligence which permits a plaintiff to recover the portion of his damages caused by the defendant's fault, even though the plaintiff's fault might exceed that of the defendant. As reported in the Digges & Klein article, five other states have adopted this form of comparative negligence by statute, 1 as has the proposed, but not yet adopted, Uniform Comparative Fault Act promulgated in 1977 by the National Conference of Commissioners on Uniform State Laws. 2 The "modified" form of comparative negligence, adopted in twenty-seven states, permits the plaintiff to recover if his fault is relatively small in contrast with that of the defendant. 3

In urging our adoption of the "pure" form of comparative negligence, the plaintiffs say that it is the fairest of the comparative fault systems. They suggest that we align ourselves with those states which, by judicial decision, have abandoned contributory negligence and adopted pure comparative negligence principles. They argue that circumstances have changed drastically since we originally adopted the contributory negligence doctrine in 1847; that comparative negligence is preeminently "lawyer's law," with which the Court is better qualified to deal than is the legislature...

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    ...Negligence Contributory negligence operates as an absolute bar to recovery under Maryland law. Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 451, 456 A.2d 894, 898 (1983) ("[A] plaintiff who fails to observe ordinary care for his own safety is contributorily negligent and is barr......
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