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Overview of the State of Maryland Court System



A. Negligence

Maryland follows the contributory negligence rule which is an affirmative defense that states a plaintiff cannot recover if the plaintiff’s negligence is a cause of the injury. Contributory negligence is a complete defense. Where a defendant asserts contributory negligence on the part of the plaintiff, the defendant carries the burden of proof.

B. Negligence Defenses

Assumption of the risk is another affirmative defense, which rests upon the plaintiff's consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk. In order to establish assumption of the risk in Maryland, the defendant must show that the plaintiff: 1) had knowledge of the risk of the danger; 2) appreciated that risk; and 3) voluntarily confronted the risk of danger.

A plaintiff who was contributorily negligent may nevertheless recover if the plaintiff was in a dangerous situation and thereafter the defendant had a fresh opportunity of which defendant was aware to avoid injury to the plaintiff and failed to do so.

Under Maryland law, certain roads or highways are given the status of a favored highway. A motor vehicle on a favored highway (also called the “Boulevard”) is the favored vehicle, and the motor vehicle on the unfavored highway is the unfavored motor vehicle. The driver of the unfavored motor vehicle must stop before entering the highway and yield the right-of-way to the favored motor vehicle, provided the favored driver is operating lawfully. The favored driver may assume that the unfavored driver will stop and yield the right-of-way.

C. Gross Negligence, Recklessness, Willful and Wanton Conduct

The legal concepts of gross negligence, recklessness, and willful and wanton conduct are generally inapplicable to the typical tort case in Maryland. These concepts may come into play in the award of punitive damages against a tortfeasor, discussed infra.

D. Negligent Hiring and Retention

An employer has a duty not to employ any person who poses an unreasonable risk to other persons who would foreseeably come into contact with that employee because of the employment relationship.

An employer who breaches this duty is responsible for any foreseeable injuries or damages caused by the conduct or actions of any such employee.

E. Negligent Entrustment

A person is liable for negligent entrustment who, directly or through a third person, supplies an item of personal property for the use of another, who, the person knows or has reason to know, is likely, because of youth, inexperience, or otherwise, to use it in a manner involving an unreasonable risk of harm to himself or herself or to others.

F. Dram Shop

This is not recognized in Maryland.

G. Joint and Several Liability

A compensatory award is a joint and several liability against all the joint tortfeasors. Franklin v. Morrison, 350 Md. 144, 711 A.2d 177 (1998). A punitive damage award, however, is an individual liability, the settlement of a punitive damage claim by one tortfeasor will not reduce the compensatory or punitive damage award against the non-settling tortfeasors. Id.

If in a single action a judgment is entered jointly against more than one defendant, the court, upon motion, may enter an appropriate judgment for one of the defendants against another defendant if (a) the moving defendant has discharged the judgment by payment or has paid more than a pro rata share of the judgment and (b) the moving defendant has a right to contribution or to recovery over from the other defendant. Md. Code Ann.2-614.

A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but it reduces the claim against the other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. MD. CODE ANN., [CTS. & JUD. PROC.] § 3-1404 (1999).

H. Wrongful Death and/or Survival Actions

See Md. Code Ann., [Cts. & Jud. Proc.] §§ 3-901 et seq.

For wrongful death actions, the court looks at the harm to the survivors left behind when the victim died, i.e., economic loss of financial support and services that the survivors would have received if the victim had not died and the pain and suffering resulting from the loss of the victim. A wrongful death action must be commenced within three years of the death of the injured person. CJ § 3-904(g).

Survival Action accrues at the time of the tortious act. Under a negligence theory, a plaintiff has three years from the date of the negligent act to sue. An exception is that a personal representative on behalf of the estate may not initiate an action for slander, which does not survive the death of the victim.


Survival Act: Estate of the decedent. Wrongful Death Act:

1. Primary class

a. Spouse (including separated spouse)

b. Minor child c. Parent

2. Secondary class

If no person qualifies under the primary class, then any person related to the deceased by blood or marriage and who was substantially dependent upon the deceased, may bring an action as a secondary beneficiary. Stepchildren cannot recover.

I. Vicarious Liability

An employer or a principal is responsible for injuries or damages caused to others by acts of employees or agents if the acts causing the injuries or damages were within the scope of the employment. A principal or employer may be liable for the intentional actions of his or her agent, even though forbidden or done in a forbidden or criminal manner, if actions are within the scope and in furtherance of the principal’s or employer’s business and the harm complained of was foreseeable. A person who borrows another’s employee for his own work may be held liable for injuries or damages caused by an act of the borrowed employee if the borrower had or exercised the right to control the details of the employee’s work. An independent contractor is not an agent or an employee. One who engages an independent contractor is not responsible for injuries or damages caused by acts of that contractor. In determining the existence of an employment relationship, five elements/ tests are considered:

(1) the power to select and hire the employee, (2) the payment of wages,

(3) the power of discharge,

(4) the power to control an employee’s conduct, and

(5) whether the work is part of the regular business of the employee.

The most important test in determining whether an employment relationship exists is whether the employer has the right to control and direct the manner of the work.

There is a presumption in Maryland that a non-owner driver has permission to drive a vehicle, but there is not a presumption that the non-owner driver is the agent of the owner.

J. Exclusivity of Workers' Compensation

In Maryland, under Maryland Labor and Employment Code 9-508 and 9-509 an employee’s exclusive remedy for job related injuries against his employer is worker’s compensation benefits. There are limited situations where intentional conduct may allow the employee to sue the employer directly. However those situations are limited. In addition to the general employer immunity a statutory employer can also be immune from this liability.

A statutory employer arises when a principal contractor undertakes to perform any work that is part of the business, occupation or trade of principal contractor and then the principal contractor contracts with a subcontractor for the execution by or under the subcontractor of all or part of the work that was originally undertaken by the principal contractor and the covered employee is employed in the execution of that work by the subcontractor. This protects both general contractors and subcontractor who have lower subcontractors underneath them.

Generally co-employees cannot sue each other based on work-related injuries. In addition see Section Insurance Issues (H) which discusses fellow employee exclusions and policies.

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Overview of the State of Maryland Court System

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