May 22, 2019

What is “Contributory Negligence?" Garvine v. State of Maryland, et. al.

by Jane Seigler, Immediate Past President, Maryland Horse Council
In a recent Maryland case, Garvine v. State of Maryland, et al., a jury decided that the sponsor of a charity trail ride (Oxford Grain and Hay Company) and the State of Maryland (the owner of the land (Fair Hill) on which the trail ride was held) were not liable for injuries sustained when the plaintiff (a participant in the trail ride) and her horse fell into a culvert near the trail. Although the court, on motion for summary judgement, did not discuss the legal doctrine of contributory negligence except to say that under the facts at issue it was a question for the jury to decide, it seems like a good time to provide a little refresher on Maryland Tort Law, and the principles that are applied when someone gets injured in a case involving horses, and subsequently sues.
In such cases, Maryland is one of the few remaining states (the others are Alabama, North Carolina, and Virginia as well as the District of Columbia) to apply the venerable “Contributory Negligence” standard to determine whether an injured party can collect damages from a person alleged to have negligently caused the injury. In short, the Contributory Negligence Doctrine states that if a plaintiff has, to even the smallest degree, contributed to his injury through his own negligence, he is completely barred from receiving any damages from the defendant. An example would be a rider who refuses to wear a helmet and sustains a head injury when his horse is spooked by the defendant driving an ATV too fast nearby. The plaintiff’s own negligence in failing to wear a helmet bars him from prevailing in a lawsuit against the defendant, even if the defendant was also negligent in his driving. Maryland courts have consistently upheld the doctrine of Contributory Negligence to bar recovery by obviously negligent plaintiffs.
The states that do not apply the Contributory Negligence Doctrine employ some version of Comparative Negligence. Under that standard, a negligent plaintiff is not barred from recovery, but instead the plaintiff’s negligence is compared to the defendant’s negligence, and the total amount of the damages awarded to the plaintiff is reduced in proportion to the plaintiff’s negligent contribution to his own injuries. Beginning in the 1950s and surging in the 1960s and 1970s, this standard was developed because it was perceived to be more fair, allowing the plaintiff to recover at least something to compensate for injuries when the defendant had at least some degree of fault. The obvious side effect of the spread of this standard was the increase in damage awards, which resulted in an increase in the number of lawsuits being brought (as potential plaintiffs were not deterred by the prospect of being barred by their own negligence). As a result, insurance premiums for high risk activities such as equestrian pursuits began to rise fairly dramatically in the 1980s. Many states responded by enacting “equine limited liability laws,” which attempted re-close the Pandora’s box opened by the adoption of the Comparative Negligence standard.
Currently, 48 states - all but Maryland and California - have enacted some form of equine  limited liability law. Each version varies from state to state, but in general they act to prevent an “equine activity sponsor,” “equine professional,” or other defined persons from being sued if a “participant” who “engages in an equine activity” suffers injury, death or damage from an “inherent risk.” These laws were intended to restore some of the protections for defendants from liability for injuries incurred during participation in risky activities. And, indeed, these laws do sometimes result in cases being dismissed on summary judgement. However, that result is not automatic, and in many cases, the result is determined by how the court applies each of the statutory terms (in quotes above) to the facts of the particular case, e.g., is a spectator at an equine event a “participant?” is someone who accompanies a friend to her barn just to watch and hang out a “participant?” What kinds of risks are "inherent" to the activity? Courts can sometimes come up with some seemingly counterintuitive answers to such questions of how the statutory wording applies to a given set of facts. For example, in a Tennessee case, Freidli v. Kerr, plaintiffs were passengers in a horse down carriage that overturned when the horse spooked from a loud noise. The court in that case ruled that the equine limited liability law did not protect the defendant carriage operator because the passengers were not participants of an equine activity and the carriage owners were not providers of an equine activity! The case law of many states with equine limited liability laws is now filled with lawsuits arguing over the meaning and applicability of the statutory terms and the often numerous exceptions set out in the statutes.
In essence, equine limited liability laws codify into statute the common law doctrine of “assumption of the risk.” Assumption of risk applies when the plaintiff voluntarily and knowingly assumes responsibility for any injury that might result from participation in an inherently risky activity. This assumption of the risk may be express, as when a participant signs a well-crafted liability waiver and release (notably, the court in Garvine threw out the liability release signed by the plaintiff because it was found to be poorly drafted and did not clearly communicate the intent to release the defendant from liability - so make sure your liability releases are written by a lawyer experienced in Maryland equine tort law!). In other cases, the assumption of the risk may be implied by the circumstances, i.e., the plaintiff is shown to have knowledge and understanding of the risks involved and agreed to participate anyway.
Maryland, a common law state, has always applied the Contributory Negligence and Assumption of the Risk Doctrines, which tend to be very protective of defendants in cases of injuries that result from participation in inherently risky activities such as equine activities. There is no evidence that enactment of an equine limited liability law, which would just codify the existing assumption of the risk doctrine, in Maryland would reduce the already low numbers of lawsuits filed in cases of horse-related injuries. Nor is there evidence that insurance rates would be lowered by the enactment of such a statute. Insurance rates tend to be set using nationwide statistics. According to a representative of Markel Insurance, at least as of 2006, “the rates in Virginia, North Carolina, and Alabama [which, similar to Maryland, employ the Contributory Negligence Doctrine], have not been affected by their equine statutes. In fact, the rates in those states are comparable to the rates Marylanders pay.” (Thanks to Jennifer Dietrich Merryman, and her article “BUCKING THE TREND: WHY MARYLAND DOES NOT NEED AN EQUINE ACTIVITY STATUTE AND WHY IT MAY BE TIME TO PUT ALL OF THESE STATUTES OUT TO PASTURE,” 36 U. Balt. L.F. 133 (Spring 2006), for this insurance information, and for the historical background on the genesis of equine liability laws.) 
Jane Seigler
Immediate Past President, Maryland Horse Council