Coleman v. Soccer Ass'n

ELDRIDGE, J. Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444 , 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide “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.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in Harrison, 295 Md. at 463 , 456 A.2d at 905 , declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.” The petitioner in the case at bar presents the same issue that was presented in Harrison , namely whether this Court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison . I. The petitioner and plaintiff below, James Kyle Coleman, was an accomplished soccer player who had volunteered to assist in coaching a team of young soccer players in a program of the Soccer Association of Columbia, in Howard County, Maryland. On August 19, 2008, Coleman, at the time 20 years old, was assisting the coach during the practice of a team of young soccer players on the field of the Lime Kiln Middle ⁶⁸³ School.

While the Soccer Association of Columbia had fields of its own, it did not have enough to accommodate all of the program’s young soccer players; the Association was required to use school fields for practices. At some point during the practice, Coleman kicked a soccer ball into a soccer goal. As he passed under the goal’s metal top rail, or crossbar, to retrieve the ball, he jumped up and grabbed the crossbar. The soccer goal was not anchored to the ground, and, as he held on to the upper crossbar, Coleman fell backwards, drawing the weight of the crossbar onto his face.

He suffered multiple severe facial fractures which required surgery and the placing of three titanium plates in his face. Coleman instituted the present action by filing a complaint, in the Circuit Court for Howard County, alleging that he was injured by the defendants’ negligence. 1 The defendant and respondent, the Soccer Association of Columbia, asserted the defense of contributory negligence. At the ensuing jury trial, the soccer coach who had invited Coleman to help coach the soccer players testified that he had not inspected or anchored the goal which fell on Coleman. The coach also testified that the goal was not owned or provided by the Soccer Association, and he did not believe that it was his responsibility to anchor the goal.

During the trial, the parties disputed whether the goal was located in an area under the supervision and control of the Soccer Association and whether the Soccer Association was required to inspect and anchor the goal. The Soccer Association presented testimony tending to show that, because the goal was not owned by the Soccer Association, the Soccer Association owed no ⁶⁸⁴ duty to Coleman. The Soccer Association also presented testimony that the condition of the goal was open and obvious to all persons. The Association maintained that the accident was caused solely by Coleman’s negligence.

Testimony was provided by Coleman to the effect that players commonly hang from soccer goals and that his actions should have been anticipated and expected by the Soccer Association. Coleman also provided testimony that anchoring goals is a standard safety practice in youth soccer. At the close of evidence, Coleman’s attorney proffered a jury instruction on comparative negligence. 2 The judge declined to give Coleman’s proffered comparative negligence instruction and, instead, instructed the jury on contributory negligence. The jury was given a verdict sheet posing several questions.

The first question was: “Do you find that the Soccer Association of Columbia was negligent?” The jury answered “yes” to this question. The jury also answered “yes” to the question: “Do you find that the Soccer Association of Columbia’s negligence caused the Plaintiffs injuries?” Finally, the jury answered “yes” to the question: “Do you find that the Plaintiff was negligent and that his negligence contributed to his claimed injuries?” In short, the jury concluded that the Soccer Association of Columbia was negligent and that the Soccer Association’s negligence caused Coleman’s injuries. The jury also found that Coleman was negligent, and that his negligence contributed to his own injuries. Because of the contributory negligence ⁶⁸⁵ finding, Coleman was barred from any recovery.

The trial court denied Coleman’s motion for judgment notwithstanding the verdict and subsequently entered judgment in favor of the Soccer Association of Columbia. Coleman filed a notice of appeal, and the Soccer Association filed a notice of cross-appeal. 3 Before briefing and argument in the Court of Special Appeals, Coleman filed in this Court a petition for a writ of certiorari, which was granted. Coleman v. Soccer Ass’n of Columbia, 425 Md. 396 , 41 A.3d 570 (2012). In his petition, Coleman posed only one question: whether this Court should retain the standard of contributory negligence as the common law standard governing negligence cases in the State of Maryland.

We shall hold that, although this Court has the authority to change the common law rule of contributory negligence, we decline to abrogate Maryland’s long-established common law principle of contributory negligence.

II

This Court last addressed the continuing viability of the contributory negligence doctrine in Harrison v. Montgomery County Bd. of Educ., supra, 295 Md. 442 , 456 A.2d 894 . In Harrison , the Court held that the contributory negligence principle remained the valid standard in Maryland negligence cases and that “any change in the established doctrine [was for] the Legislature.” 295 Md. at 463 , 456 A.2d at 905 . ⁶⁸⁶ Chief Judge Murphy, for the Court in Harrison , began his review of the contributory negligence standard by tracing the standard’s historical origins to Lord Chief Justice Ellenborough’s opinion in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809). 4 As Harrison explained the case, “Butterfield left a public inn at dusk, mounted his horse and rode off ‘violently’ down the street. Forrester, who was effecting some repairs to his house, had placed a pole in the roadway.

Although Butterfield could have seen and avoided the obstruction, he did not and was injured. The [English] court there noted: ‘One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.’ [11 East] at 61, 103 Eng. Rep. at 927.” The Harrison opinion explained that, when the contributory negligence standard was first judicially adopted in the United States, the courts at the time were concerned that juries would award to plaintiffs sums that had the potential to stifle “newly developing industry.” 5 Early American courts were ⁶⁸⁷ also concerned that they should not adopt a policy in which “courts ... assist a wrongdoer who suffered an injury as a result of his own wrongdoing.” Harrison, 295 Md. at 450 , 456 A.2d at 898 .

See also Smith v. Smith, 2 Pick. 621, 19 Mass. 621, 624 (1824) (a leading early American case incorporating the contributory negligence bar as part of common law). This Court, relying on Butterfield v. Forrester, supra, first adopted the standard of contributory negligence in Irwin v. Sprigg, 6 Gill. 200, 205 (1847), stating: “The established doctrine now is, that although the defendant’s misconduct may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly.” The contributory negligence standard was later modified in part by this Court’s adoption of the last clear chance doctrine, see N. C. R.R. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), which allowed a plaintiff to recover “if the defendant might, by the exercise of care on its part, have avoided the consequences of the neglect or carelessness” of the plaintiff. ⁶⁸⁸ The Court recognized another exception to the contributory negligence standard where the plaintiff is under five years old. See Taylor v. Armiger, 277 Md. 638 , 358 A.2d 883 (1975).

The Harrison Court examined the origins and impact of comparative negligence, noting that early in the 20th century, the Maryland General Assembly had adopted a form of comparative negligence for “certain perilous occupations,” but had subsequently repealed the provisions. The Court in Harrison also pointed out that, as of 1983, of the thirty-nine states that had adopted comparative negligence, thirty-one had done so by statute, with the eight remaining states having adopted the principle by judicial action. The Court noted that it was “clear” that legal scholars “favored” the comparative negligence standard, as supported by “[a]n almost boundless array of scholarly writings.” 295 Md. at 453 , 456 A.2d at 899 . Nevertheless, the Harrison Court pointed to other considerations involved in changing the standard from contributory negligence to comparative negligence ( 295 Md. at 454-455 , 456 A.2d at 900-901 ): “Also to be considered is the effect which a comparative fault system would have on other fundamental areas of negligence law.

The last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort, are several of the more obvious areas affected by the urged shift to comparative negligence. Even that change has its complications; beside the ‘pure’ form of comparative negligence, there are several ‘modified’ forms, so that abrogation of the contributory negligence doctrine will necessitate the substitution of an alternate doctrine. Which form to adopt presents its own questions and the choice is by no means clear____That a change from contributory to comparative negligence involves considerably more than a simple common law adjustment is readily apparent.” Harrison also examined those states which had abrogated the contributory negligence standard, pointing out that “most ⁶⁸⁹ of the states which have adopted comparative negligence have done so by statute in derogation of the common law.” 295 Md. at 456 , 456 A.2d at 901 . The Court observed that, in several of these states, the courts had refused to judicially abrogate the contributory negligence standard because they “expressly deferred on policy grounds to their respective legislatures.” 295 Md. at 456 , 456 A.2d at 901 .

Only eight state supreme courts, as of 1983, had adopted a comparative negligence standard by judicial decision. The Hmrison opinion further held that, when this Court is “called upon, as here, to overrule our own decisions, consideration must be given to the doctrine of stare decisis — -the policy which entails the reaffirmation of a decisional doctrine of an appellate court, even though if considered for the first time, the Court might reach a different conclusion. Deems v. Western Maryland Ry., 247 Md. 95 , 231 A.2d 514 (1966).” 295 Md. at 458 , 456 A.2d at 902 . Chief Judge Murphy in Harrison continued his assessment by explaining that the principle of stare decisis should not be construed to “inhibit [this Court] from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.” ( 295 Md. at 459 , 456 A.2d at 903 ).

Nevertheless, Harrison concluded ( 295 Md. at 459 , 456 A.2d at 903 ): “[I]n considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State’s public policy- — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly; that body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered to revise the common law of Maryland by legislative enactment. See Felder v. Butler, 292 Md. [174], 183, 438 A.2d ⁶⁹⁰ 494 [499]; Adler v. American Standard Corp., 291 Md. [31], 45, 432 A.2d 464 [472], The Court, therefore, has been particularly reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State. See, e.g., Condore v. Prince George’s Co., 289 Md. [516] 532, 425 A.2d 1011 [1019].” In the years immediately prior to Harrison , from 1966 to 1982, the Maryland General Assembly had considered twenty-one bills seeking to change the contributory negligence standard. None of the bills had been enacted.

The Harrison Court accorded a great deal of weight to the General Assembly’s failure to enact any of these bills, stating: “[T]he legislature’s action in rejecting the proposed change is indicative of an intention to retain the contributory negligence doctrine.” 295 Md. at 462 , 456 A.2d at 904 . The Court further pointed out that enactment of a comparative negligence standard is not a single issue; instead, such a decision would encompass a variety of choices to be made, beginning with the initial inquiry of what form of comparative negligence to adopt, “pure” or one “of the several types of modified comparative negligence,” 295 Md. at 462-463 , 456 A.2d at 904 . If Maryland’s common law were to change, the Harrison opinion explained, the decision as to which form of comparative negligence to adopt “plainly involves major policy considerations” of the sort best left to the General Assembly. 295 Md. at 462 , 456 A.2d at 904 .

III

Since the time of Harrison , this Court has continued to recognize the standard of contributory negligence as the applicable principle in Maryland negligence actions. See, e.g., Thomas v. Panco Management of Maryland, LLC, 423 Md. 387, 417 , 31 A.3d 583, 601 (2011); Erie Insurance Exchange v. Heffernan, 399 Md. 598 , 925 A.2d 636 (2007); Dehn v. Edgecombe, 384 Md. 606 , 865 A.2d 603 (2005); Franklin v. Morrison, 350 Md. 144, 168 , 711 A.2d 177, 189 (1998); County Commissioners v. Bell Atlantic, 346 Md. 160 , 695 A.2d 171 (1997); Brady v. Parsons Co., 327 Md. 275 , 609 A.2d 297 ⁶⁹¹ (1992); Wegad v. Howard Street Jewelers, 326 Md. 409 , 605 A.2d 123 (1992); Liscombe v. Potomac Edison Co., 303 Md. 619 , 495 A.2d 838 (1985). Although the contributory negligence principle has been part of this State’s common law for over 165 years, petitioners and numerous amici in this case urge this Court to abolish the contributory negligence standard and replace it with a form of comparative negligence. They argue contributory negligence is an antiquated doctrine, that it has been roundly criticized by academic legal scholars, and that it has been rejected in a majority of our sister states.

It is also pointed out that contributory negligence works an inherent unfairness by barring plaintiffs from any recovery, even when it is proven, in a particular case, that a defendant’s negligence was primarily responsible for the act or omission which resulted in a plaintiffs injuries. It is said that contributory negligence provides harsh justice to those who may have acted negligently, in minor ways, to contribute to their injuries, and that it absolves those defendants from liability who can find any minor negligence in the plaintiffs’ behavior. Petitioner correctly contends 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 , 529 A.2d 365, 366 (1987)), “[bjecause 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.

Harris v. State, 306 Md. 344, 357 , 509 A.2d 120 (1986); Kelley v. R.G. Industries, Inc., 304 Md. 124 , 497 A.2d 1143 (1985). 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, supra, 304 Md. at 141 , 497 A.2d [at 1151]; Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460-61 , 456 A.2d 894 [903] (1983).

In the area of civil common law this Court has not only modified the existing law but also ⁶⁹² added to the body of law by recognizing new causes of action. Kelley, supra, (recognizing cause of action against manufacturers or marketers for damages caused by ‘Saturday Night Special’ handguns); Boblitz v. Boblitz, 296 Md. 242 , 462 A.2d 506 (1983) (permitting negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47 , 447 A.2d 857 (1982)(deleting force as a required element of the action of forceable detainer); Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981) (recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334 , 390 A.2d 77 (1978) (abolishing the defense of interspousal immunity in the case of outrageous intentional torts); Harris v. Jones, 281 Md. 560 , 380 A.2d 611 (1977) (recognizing tort of intentional infliction of emotional distress).” The Court’s ability to modify the common law was further underscored in Kelley v. R.G. Industries, Inc., 304 Md. 124, 140 , 497 A.2d 1143, 1151 (1985): “This Court has repeatedly said that ‘the common law is not static; its life and heart is its dynamism — its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems.’ Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460 , 456 A.2d 894 (1983). See Felder v. Butler, 292 Md. 174, 182 , 438 A.2d 494 (1981).

The common law is, therefore, subject to judicial modification in light of modern circumstances or increased knowledge. Jones v. State, 302 Md. 153, 161 , 486 A.2d 184 (1985); Boblitz v. Boblitz, 296 Md. 242 , 462 A.2d 506 (1983); Condore v. Prince George’s Co., 289 Md. 516 , 425 A.2d 1011 (1981).” See also, e.g., Bowden v. Caldor, 350 Md. 4 , 710 A.2d 267 (1998)(“as often pointed out, this Court has authority under the Maryland Constitution to change the common law”); Telnikoff v. Matusevitch, 347 Md. 561 , 593 n. 29, 702 A.2d 230 , 246 n. 29 (1997); Owens-Illinois v. Zenobia, 325 Md. 420, 469-470 , 601 A.2d 633, 657 (1992). ⁶⁹³ Since the Harrison case, the General Assembly has continually considered and failed to pass bills that would abolish or modify the contributory negligence standard. 6 The failure of so many bills, attempting to change the contributory negligence doctrine, is a clear indication of legislative policy at the present time. This Court in Moore v. State, 388 Md. 623, 641 , 882 A.2d 256, 267 (2005), with regard to the failure of legislation, explained: “Although the failure of a single bill in the General Assembly may be due to many reasons, and thus is not always a good indication of the Legislature’s intent, under some circumstances, the failure to enact legislation is persuasive evidence of legislative intent. See, e.g., Lee v. Cline, 384 Md. 245, 255-256 , 863 A.2d 297, 303-304 (2004); Arundel Corp. v. Marie, 383 Md. 489, 504 , 860 A.2d 886, 895 (2004) (‘The Legislature [has] declined invitations to modify the rule as [appellant] wishes’); Stearman v. State Farm, 381 Md. 436, 455 , 849 A.2d 539, 550-551 (2004) (‘The refusal of the Legislature to act to change a [statute] ... provides ... support for the Court to exercise restraint and refuse to step in and make the change’); In re Anthony R., supra, 362 Md. [51], 65-67, 763 A.2d [136], 144-145 (2000); State v. Sowell, 353 Md. 713, 723-724 , 728 A.2d 712, 717-718 (1999) (‘We have recognized that the General Assembly’s failure to amend ... sometimes reflects its desired public policy’); State v. Bell, 351 Md. 709, 723 , 720 A.2d 311, 318 (1998) (‘Therefore, by declining to adopt the proposed language of the amending bill, the Legislature clearly did not intend’ to ⁶⁹⁴ adopt the result being urged); State v. Frazier, 298 Md. 422, 459 , 470 A.2d 1269, 1288 (1984) (‘All of these proposals [supporting different views of a statute advocated by the parties] were rejected by the General Assembly’).” The Moore opinion continued ( 388 Md. at 641-642 , 882 A.2d at 267 ): “Legislative inaction is very significant where bills have repeatedly been introduced in the General Assembly to accomplish a particular result, and where the General Assembly has persistently refused to enact such bills.

See, e.g., Arundel Corp. v. Marie, supra, 383 Md. at 502-504 , 860 A.2d at 894-896 ; Stearman v. State Farm, supra, 381 Md. at 455 , 849 A.2d at 551 (‘Every year since 2000, legislators have introduced bills in the General Assembly that would’ accomplish what the appellant urges, but ‘[n]one of these bills were enacted’); Bozman v. Bozman, 376 Md. 461, 492 , 830 A.2d 450, 469 (2003), quoting Boblitz v. Boblitz, 296 Md. 242, 274 , 462 A.2d 506, 521 (1983) (The Court will decline to adopt a particular position “where the Legislature repeatedly had rejected efforts to achieve legislatively that which we were asked to grant judicially"); Holliday v. Sturm, 368 Md. 186, 209 , 792 A.2d 1145, 1159 (2002) (The Court refused to adopt positions ‘that have been presented on several occasions to the General Assembly' and ‘[s]o far, the Legislature has chosen not’ to adopt them)----” See also Potomac Valley Orth. v. Board of Physicians, 417 Md. 622, 640-641 , 12 A.3d 84, 95 (2011). The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence. Chief Judge Bell emphasized for the Court in Baltimore v. Clark, 404 Md. 13, 36 , 944 A.2d 1122, 1135-1136 (2008), the following: “It is well settled that, where the General Assembly has announced public policy, the Court will decline to enter the public policy debate, even when it is the common law that is at issue and the Court certainly has the authority to change ⁶⁹⁵ the common law. Adler v. American Standard Corp., 291 Md. at 47 , 432 A.2d at 473 .” See Ireland v. State, supra, 310 Md. at 331 , 529 A.2d at 366 (“[T]he common law should not be changed contrary to the public policy of the State as set forth by the General Assembly”); Kelley v. R.G. Industries, supra, 304 Md. at 141 , 497 A.2d at 1151 (“[W]e have consistently recognized that common law principles should not be changed contrary to the public policy of the State set forth by the General Assembly”).

For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the Court’s long-standing jurisprudence. JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT JAMES COLEMAN. BELL, C.J. and HARRELL, J., dissent.

BATTAGLIA, GREENE, McDONALD and RAKER, JJ. Concur. . In his first amended complaint, Coleman named four defendants: the Soccer Association of Columbia, the Columbia Soccer Club, the Howard County Government, and the Howard County Board of Education. On August 16, 2010, Coleman filed a notice of voluntary dismissal as to the Howard County Government.

Subsequently, on October 5, 2011, the parties stipulated to dismissal with prejudice of the Columbia Soccer Club. On October 24, 2011, the Howard County Board of Education was also dismissed with prejudice from the suit, leaving the Soccer Association of Columbia as the sole remaining defendant during the trial. . The proffered jury instruction read as follows: "A. Comparative Negligence — Liability "If you find that more than one party has established his/her burden of proof as to negligence, as defined by the court, you must then compare the negligence of those parties. The total amount of negligence is 100%.

The figure that you arrive at should reflect the total percentage of negligence attributed to each party with respect to the happening of the accident. A comparison of negligence is made only if the negligence of more than one party proximately caused the accident.” . The Soccer Association's cross-appeal was unnecessary, and actually improper, because of the principle that a litigant is not entitled to appeal from a judgment wholly in his or her favor. Any arguments seeking to uphold the judgment on grounds rejected by the trial judge or jury, such as the alleged lack of primary negligence, can be made by the appellee under the principle that a judgment can be upheld on any ground adequately shown by the record.

See, e.g., Unger v. State, 427 Md. 383 , 400-401 n. 8, 48 A.3d 242 , 252 n. 8 (2012); Rush v. State, 403 Md. 68, 103 , 939 A.2d 689, 709 (2008); Bowen v. Annapolis, 402 Md. 587, 618 , 937 A.2d 242, 260 (2007); Wolfe v. Anne Arundel County, 374 Md. 20 , 25 n. 2, 821 A.2d 52 , 55 n. 2 (2003). . Some commentators have claimed that the doctrine of contributory negligence originated even earlier, with the case of Bayly v. Merrel, 79 Eng. Rep. 331 (K.B. 1606). Most authorities, however, take the position that the doctrine originated with Butterfield v. Forrester, 11 East 60, 103 Eng.

Rep. 926 (K.B. 1809). See, e.g., William L. Prosser, Comparative Negligence, 41 Cal. L.Rev. 1, 3 (1953); Wex S. Malone, The Formative Era of Contributory Negligence, 41 Ill. L.Rev. 151 (1946). .

One commentator has written as follows (H. Woods, The Negligence Case: Comparative Fault, § 1:4, at 7-8 (1978), footnotes omitted): "By 1850, [the country] had become heavily industrialized. This unprecedented development of industry and the general realization that it was related to Britain’s continuance as the dominant world power brought out the protective instincts of her judiciary. The English courts eagerly seized upon Lord Ellenborough's holding in Butterfield as a most effective protective device. The American judiciary was no less enthusiastic.

A Pennsylvania court in 1854 said this had been the 'rule from time immemorial and is not likely to be changed in all the time to come.’ ” ⁶⁸⁷ See also Alvis v. Ribar, 85 Ill.2d 1, 6, 52 Ill.Dec. 23 , 421 N.E.2d 886, 888 (1981): “Judicial concern was particularly evident in the area of personal injury suits by railroad employees against the railroads. The courts realized that, in the pervading public view that saw railroads as 'harmful entities with deep pockets’..., juries’ sympathies toward plaintiffs could wreak financial disaster upon that burgeoning industry.” In 1906, Congress enacted the Federal Employers’ Liability Act ("FELA”), 45 U.S.C. §§ 51-60 , which applied a comparative negligence standard in cases brought by railroad workers against their employers. The statute states that the "liability of common carriers by railroad,” is that "[ejvery common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier....” 45 U.S.C. § 51 . The FELA specifies that "contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” 45 U.S.C. § 53 .

See Collins v. National R.R. Passenger Corp., 417 Md. 217 , 9 A.3d 56 (2010). . See, e.g., House Bill 836 of the 1996 session (withdrawn); House Bill 846 of the 1997 session (unfavorable report of the House Judiciary Committee); Senate Bill 618 of the 1998 Session (unfavorable report of the Senate Judicial Proceedings Committee); House Bill 551 of the 1999 Session (unfavorable report of the House Judiciary Committee); Senate Bill 779 of the 2000 Session (unfavorable report of the Senate Judicial Proceedings Committee); Senate Bill 483 of the 2001 Session (unfavorable report of the Senate Judicial Proceedings Committee); Senate Bill 872 of the 2002 Session (sent to Senate Rules Committee but no further progress); House Bill 110 of the 2007 Session (withdrawn); Senate Bill 267 of the 2007 Session; House Bill 1129 of the 2011 Session. HARRELL, J., dissenting, 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 ⁶⁹⁶ present case, this dinosaur extinct.

It chooses not to do so. Accordingly, I dissent. My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.

I. The History of Contributory Negligence in Maryland Under the doctrine of contributory negligence, a plaintiff who fails to exercise ordinary care for his or her own safety, and thus contributes proximately to his or her injury, “is barred from all recovery, regardless of the quantum of a defendant’s primary negligence.” Harrison v. Montgomery Cnty. Bd. of Ed., 295 Md. 442, 451 , 456 A.2d 894, 898 (1983). Contributory negligence is the “neglect of duty imposed upon all men to observe ordinary care for their own safety,” Potts v. Armour & Co., 183 Md. 483, 490 , 39 A.2d 552, 556 (1944), and refers not to the breach of a duty owed to another, but rather to the failure of an individual to exercise that degree of care necessary to protect him or her self. Baltimore Cnty. v. State, Use of Keenan, 232 Md. 350, 362 , 193 A.2d 30, 37 (1963).

An “all-or-nothing” doctrine, contributory negligence operates in application as a total bar to recovery by an injured plaintiff. The doctrine is of judicial “Big Bang” origin, credited generally to the 1809 English case of Butterfield v. Forrester (1809) 103 Eng. Rep. 926 (K.B.). In Butterfield, the court considered whether a plaintiff, injured while “violently” riding his horse on a roadway, by a pole negligently placed in the roadway, could recover damages.

Denying recovery, Lord Ellenborough penned the first recognized incantation of contributory negligence, declaring, “One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.” Id. at 927. ⁶⁹⁷ Soon after Butterfield, American courts began to recognize the doctrine of contributory negligence. See Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824); William L. Prosser, Comparative Negligence, 51 Mich.

L.Rev. 465, 468 (1953). Although early courts explained rarely the reasons for their adoption of the doctrine, scholars set forth later multiple reasons for its widespread acceptance in the U.S. in the nineteenth and early twentieth centuries. For example, its ascendance was considered a means of encouraging potential plaintiffs to comply with the relevant standard of care, 4 Harper, James & Gray on Torts, § 22.2 at 340 (3d ed. 2006) (hereinafter “Harper, James & Gray”); requiring plaintiffs to enter court with clean hands, Prosser & Keeton on the Law of Torts, § 65 at 451 (5th ed. 1984) (hereinafter “Prosser & Keeton”); and, insulating developing industry from liability and fostering economic growth by keeping in check plaintiff-minded juries. Id. at 452; 4 Harper, James & Gray, supra, § 22.1 at 328-30.

The doctrine was seen also as consistent with “several unwritten policies of the [nineteenth and early twentieth century] common law” — specifically, the idea that courts should not assist someone who contributes to causing his or her own injuries, and the “passion for a simple issue that could be categorically answered yes or no ...” Harrison, 295 Md. at 450 , 456 A.2d at 897-98 ; see also Edward S. Digges, Jr. & Robert Dale Klein, Comparative Fault in Maryland: The Time Has Come, 41 Md. L.Rev. 276, 278 (1982); Prosser & Keeton, supra, § 65 at 452. Whatever the initial justifications attributed to its birth, contributory negligence has been a mainstay of Maryland law since its adoption in Irwin v. Sprigg, 6 Gill 200 (1847). 1 Since ⁶⁹⁸ that time, Maryland courts applied the doctrine of contributory negligence to bar recovery in negligence actions by at-fault plaintiffs. Exceptions evolved, however, to allow recovery in specific instances. For example, the defense of contributory negligence is not available against claimants under five years of age, Taylor v. Armiger, 277 Md. 638, 649 , 358 A.2d 883, 889 (1976), in strict liability actions, Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597 , 495 A.2d 348, 356 (1985), and in actions based on intentional conduct, Tucker v. State, Use of Johnson, 89 Md. 471, 486 , 43 A. 778, 783 (1899); State Farm Mut.

Auto. Ins. Co. v. Hill, 139 Md.App. 308, 316-18 , 775 A.2d 476, 481-82 (2001). Additionally, the doctrine of last clear chance developed, Northern Cent.

Ry. Co. v. State, Use of Price, 29 Md. 420, 436 (1868), to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes “something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence.” 2 Sanner v. Guard, 236 Md. 271, 276 , 203 A.2d 885, 888 (1964). The all-or-nothing consequences of the application of contributory negligence have long been criticized nationally by scholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d 713, 717 (Ky.1984) (“A list of the critics of contributory negligence as a complete bar to a plaintiffs recovery reads like a tort hall of fame.

The list includes, among others, Campbell, Fleming, Green, Harper and James, Dreton, Leflar, Malone, Pound and Prosser.”); Prosser, Comparative Negligence, supra, at 469 (“Criticism of the denial of recovery was ⁶⁹⁹ not slow in coming, and it has been with us for more than a century.”); 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts, § 218 at 763 (2d ed. 2011) (hereinafter “Dobbs”) (“The traditional contributory negligence rule was extreme not merely in results but in principle. No satisfactory reasoning has ever explained the rule.”). Many have argued instead for, and most states have adopted, 3 a system of comparative negligence which apportions damages between a negligent plaintiff and a negligent defendant according to each party’s relative degree of fault. Thus, under a comparative negligence system, a plaintiffs contributory negligence does not bar recovery, but rather reduces proportionately his or her damages in relation to his or her degree of fault. 4 2 Dobbs, supra, § 220 at 771.

This Court considered previously whether to replace the common law doctrine of contributory negligence with a system of comparative fault. See Harrison, 295 Md. 442 , 456 A.2d 894 ; Pittsburg & Connellsville R.R. Co. v. Andrews, 39 Md. 329, 351 (1874) (noting that a doctrine requiring the relative fault of a plaintiff and defendant to be compared “has never been sanctioned in this State, but the exact contrary is the settled rule here”). We confronted this question most recently nearly thirty years ago. In Harrison , we considered ⁷⁰⁰ whether to abrogate judicially contributory negligence in the midst of a nation-wide movement to transition to a system of comparative fault. 5 We engaged first in a comparison of the historical and doctrinal principles of both contributory and comparative negligence.

Harrison, 295 Md. at 449-53 , 456 A.2d at 897-99 . Although recognizing the growing trend toward adopting principles of comparative fault, id. at 456-58 , 456 A.2d at 901-02 , we noted, on the other hand, Maryland’s long history of applying the doctrine of contributory negligence. Id. at 458 , 456 A.2d at 902 . See Irwin, 6 Gill at 205 (adopting the doctrine of contributory negligence); Pittsburg & Connellsville R.R. Co., 39 Md. at 351 (affirming Maryland’s adherence to contributory, rather than comparative, negligence).

Although acknowledging further that jurisdictions transitioning from contributory negligence to comparative fault regimes experienced little difficulty in doing so, Harrison, 295 Md. at 454 , 456 A.2d at 900 , we noted that making such a doctrinal change requires consideration of a multitude of options and implications. Id. at 462-63 , 456 A.2d at 904-05 . For example, this Court would have to choose between a pure or modified fault system, and consider “the effect which a comparative fault system would have on other fundamental areas of negligence law,” such as the “last clear chance doctrine, assumption of the risk, joint and several liability, contribution, setoffs and counterclaims, and application of the doctrine to other fault systems, such as strict liability in tort....” Id. at 455 , 456 A.2d at 900 . Noting the lack of uniformity among the systems adopted by new comparative fault jurisdictions in their treatment of these areas, we characterized the decision whether to adopt either pure or modified ⁷⁰¹ comparative fault as one “plainly involving] major policy considerations.” Id. at 462 , 456 A.2d at 904 .

Perhaps overawed by the difficult choices inherent in adopting comparative negligence, however, the Harrison court declined to ride atop the tsunami of states abandoning contributory negligence. Instead, the Harrison majority observed that “scant attention” had been paid by the Maryland Bench and Bar to the relative merits of contributory and comparative negligence, id. at 458 , 456 A.2d at 902 , and that, although the Legislature had considered numerous bills proposing to adopt comparative fault, none were enacted ultimately. Id. at 461-62 , 456 A.2d at 904 . Thus, ignoring the great societal change nationally demonstrating the unsuitability of contributory negligence principles to modern life, but finding no evidence of that groundswell in Maryland, we deferred instead to the Legislature, inferring from its inaction an “intention to retain the contributory negligence doctrine” as the public policy of the State of Maryland.

Id. at 462 , 456 A.2d at 904 . We concluded: All things considered, we are unable to say that the circumstances of modern life have so changed as to render contributory negligence a vestige of the past, no longer suitable to the needs of the people of Maryland. In the final analysis, whether to abandon the doctrine of contributory negligence in favor of comparative negligence involves fundamental and basic public policy considerations properly to be addressed by the legislature. We therefore conclude ... that while we recognize the force of the plaintiffs argument, in the present state of the law, we leave any change in the established doctrine to the Legislature.

Id. at 463 , 456 A.2d at 905 (internal quotation marks and citations omitted). We are given straightforwardly in the present case another opportunity to replace the doctrine of contributory negligence with a system of comparative fault.

II

The Maryland Court of Appeals Has the Power to Abrogate Contributory Negligence Unquestionably (as the Majority opinion agrees — see Maj. op. at 691-93, 69 A.3d at 1156-57), this Court has the power to ⁷⁰² change the doctrine of contributory negligence. Although the common law may be changed also by legislative act, Md. Const. Deel. of Rts. art. 5, we have stated frequently that it is “our duty to determine the common law as it exists in this State.” Pope v. State, 284 Md. 309, 341-42 , 396 A.2d 1054, 1073 (1979) (quoting Ass’n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204 , 82 A.2d 106, 117 (1951)). See also Tracey v. Solesky, 427 Md. 627, 639-40 , 50 A.3d 1075, 1081-82 (2012) (quoting Ireland v. State, 310 Md. 328, 331-32 , 529 A.2d 365, 366 (1987)); McGarvey v. McGarvey, 286 Md. 19, 27 , 405 A.2d 250, 254 (1979).

Contributory negligence is, and has always been, a common law doctrine of judicial origin in this State. See Irwin, 6 Gill 200 . In the absence of codification by the Legislature, the defense of contributory negligence remains a dependent of the common law, and as such, is within the province of its parent, this Court, to abrogate or modify that to which it gave birth and nurtured. See, e.g., Price v. State, 405 Md. 10, 23 , 949 A.2d 619, 627 (2008) (noting that because “the Maryland principles governing inconsistent verdicts are neither reflected in statutes nor in the Rules promulgated by this Court[,] ... those principles ... [are] part of Maryland common law” and subject to judicial modification); Jones v. State, 303 Md. 323 , 337 n. 10, 493 A.2d 1062 , 1069 n. 10 (1985) (“The common law rule may, within constitutional constraints, be changed or modified by ... judicial decision____”); Ireland, 310 Md. at 331 , 529 A.2d at 366 (“[T]he determination of what part of th[e] common law is consistent with the spirit of Maryland’s Constitution and her political institutions[ ] are to be made by this Court.”).

In accordance with our authority to alter the common law, Petitioner James Coleman (“Coleman”) urges this Court to abolish the doctrine of contributory negligence, arguing that it is a vestige of the past. In response, Respondent Soccer Association of Columbia (“SAC”) and its Amici 6 claim princi ⁷⁰³ pally that this Court is bound by its decision in Harrison to retain the doctrine of contributory negligence; but, assuming that we are not bound by Harrison , Respondent contends that the abrogation of contributory negligence is more appropriate for legislative, rather than judicial, action, due to the complex policy considerations involved in adopting comparative negligence. I disagree. Principles of stare decisis do not require continued adherence to our decision in Harrison , nor does this Court owe continued deference to the General Assembly simply because of the difficult choices inherent in formulating a comparative negligence rule.

Thus, I would abolish the doctrine of contributory negligence and replace it with comparative fault — “not because [it is] easy, but because [it is] hard.” President John F. Kennedy, Address at Rice University on the Nation’s Space Effort (12 Sept. 1962). 7 A. Stare Decisis Does Not Require Retention of the Doctrine of Contributory Negligence Under the doctrine of stare decisis, changes in long-standing “decisional doctrine are left to the Legislature” for purposes of “certainty and stability.” Harrison, 295 Md. at 458-59 , 456 A.2d at 902 (quoting Deems v. Western Md. Ry. Co., 247 Md. 95, 102 , 231 A.2d 514, 518 (1967)). Stare decisis, meaning to stand by the thing decided, “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” ⁷⁰⁴ Livesay v. Baltimore Cnty., 384 Md. 1, 14 , 862 A.2d 33, 40-41 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827 , 111 S.Ct. 2597, 2609 , 115 L.Ed.2d 720 (1991)). Notwithstanding the doctrine of stare decisis, the common law remains “subject to judicial modification in the light of modern circumstances or increased knowledge.” Ireland, 310 Md. at 331 , 529 A.2d at 366 .

As we stated in Harrison , we have never construed the doctrine of stare decisis “to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.” 295 Md. at 459 , 456 A.2d at 903 . Although this Court has declined frequently to alter longstanding common law rules, see, e.g., Fennell v. Southern Md. Hosp. Ctr., 320 Md. 776, 786-87 , 580 A.2d 206, 211 (1990) (refusing to revise the common law to permit damages for “lost chance of survival” claims in medical malpractice actions); Frye v. Frye, 305 Md. 542, 567 , 505 A.2d 826, 839 (1986) (declining to overturn parent-child immunity in motor tort cases); State v. Minster, 302 Md. 240, 245 , 486 A.2d 1197, 1199 (1985) (refusing to abrogate the common law “year and a day rule”), we may depart from principles of stare decisis in two circumstances: (1) when a prior decision was “clearly wrong and contrary to established principles,” Tracey, 427 Md. at 659 , 50 A.3d at 1093 (quoting State v. Adams, 406 Md. 240, 259 , 958 A.2d 295, 307 (2008)), or (2) “when precedent has been superseded by significant changes in the law or facts.” Id. (citing Harrison, 295 Md. at 459 , 456 A.2d at 903 ).

For example, in B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., we abandoned the common law rule of res gestae in favor of the version set forth in the Federal Rules of Evidence, after noting our “[increased knowledge,” “the guidance of a significant majority of other states,” and the near-universal condemnation of the common law rule by both courts and commentators. 324 Md. 147, 158 , 596 A.2d 640, 645 (1991). Similarly, in Julian v. Christopher, we departed from our prior interpretation of silent consent clauses allowing ⁷⁰⁵ landlords to refuse unreasonably and arbitrarily a lessee’s request to sublet or assign a lease in favor of a standard of reasonableness, after noting summarily that the common law interpretation is a “vestige of the past” and contrary to established public policy. 320 Md. 1 , 8-9, 575 A.2d 735 , 738-39 (1990). This Court has shown a willingness to depart from its stale decisions even where we expressed previously an intention to defer to legislative action on a longstanding, but widely-disfavored, common law rule. For example, we declined for decades to abrogate the common law interspousal immunity doctrine prohibiting married women from maintaining actions in tort against their husbands, in each instance deferring expressly to the Legislature.

See Stokes v. Ass’n of Indep. Taxi Operators, Inc., 248 Md. 690, 692 , 237 A.2d 762, 763 (1968) (“[I]f the rule is to be changed, the Legislature will have to do it.”); Ennis v. Donovan, 222 Md. 536, 543 , 161 A.2d 698, 702 (1960) (“We can only repeat that if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts.”); Fernandez v. Fernandez, 214 Md. 519, 524 , 135 A.2d 886, 889 (1957) (“We think the appellant here must proceed in equity unless the Legislature sees fit to change the law.”); Gregg v. Gregg, 199 Md. 662, 667 , 87 A.2d 581, 583 (1952) (“[T]hese ancient theories which form a part of the common law have to be followed by us unless they have been changed by legislative action.... ”). Shortly after our decision in Harrison , however, we abrogated the common law doctrine of interspousal immunity in negligence actions. 8 Boblitz v. Boblitz, 296 Md. 242 , 462 A.2d ⁷⁰⁶ 506 (1983). In so doing, we distanced ourselves from our prior cases and characterized the decision as one appropriate for judicial action. 9 We considered persuasive the evolution of society’s conceptions regarding women and the trend toward abrogation in other states, concluding that the foundation of the doctrine no longer coincided with modern values.

Thus, we determined that we could depart fairly from principles of stare decisis and overrule the doctrine’s application in negligence actions as a “vestige of the past.” Id. at 273-75 , 462 A.2d at 521-22 . We distinguished Harrison , however, as both possessing a history of legislative inaction on proposed bills (lacking in the context of interspousal immunity) and involving necessarily more complex issues, stating that Harrison represented an attempt to grant judicially that which “the Legislature repeatedly had rejected efforts to achieve legislatively.” Id. at 274, 462 A.2d at 521 . Yet, we emphasized that, despite our decision in Harrison , it remains well within the authority of this Court to abrogate an outmoded rule of the common law. Id. at 274, 462 A.2d at 522 .

We abandoned completely the doctrine of interspousal immunity finally in Bozman v. Bozman, 376 Md. 461 , 830 A.2d 450 (2003). We noted that, because forty-six states had done so already, in full or in part, “the trend and, indeed, the great weight of authority” was in favor of abrogating the common law doctrine as “outdated and serving] no useful purpose.” Id. at 487-88 , 830 A.2d at 466 . Although we acknowledged that certain aspects of the common law concept, upon which the doctrine rested at its conception, would be retained in various provisions of the Maryland Code, we found such remnants insufficient to shield the doctrine from judicial aboli ⁷⁰⁷ tion. Id. at 489 , 830 A.2d at 466-67 .

Considering the decisions of our sister jurisdictions to be persuasive authority in analyzing the arguments “both in support of, and against, retention of the interspousal immunity rule,” id. at 490 , 830 A.2d at 467 , we determined that the doctrine of stare decisis did not require strict adherence to the doctrine or continued legislative deference. Id. at 494-95 , 830 A.2d at 470 . Thus, as our abrogation of the interspousal tort immunity doctrine demonstrates, this Court has not only the power, but also the responsibility (Harrison notwithstanding) to abrogate the doctrine of contributory negligence if it concludes that the state of society and law have changed so that contributory negligence is a vestige of the past, unsuitable to the conditions of modern life. To that end, this Court reviews the foundation of the doctrine to determine its continued relevance in modern society, and considers persuasive, although not binding, the actions of other states on this issue.

See id. at 490 , 830 A.2d at 467 . Additionally, we may analyze, to some degree (limited by the factual record before us), “the public policy concerns raised by the parties and by the other courts which have grappled with this issue.” State v. Wiegmann, 350 Md. 585, 607 , 714 A.2d 841, 851 (1998) (quoting Gaver v. Harrant, 316 Md. 17, 30 , 557 A.2d 210, 217 (1989)). As noted above, the widespread acceptance of contributory negligence as a complete defense is attributed principally to (1) the desire to protect the nations’ newly-developing industry from liability and plaintiff-minded juries, E.A. Turk, Comparative Negligence on the March, 28 Chi.-Kent L.Rev. 189, 201 (1950); 4 Harper, James & Gray, supra, § 22.1 at 328-30; and (2) “the concept prevalent at the time that a plaintiffs irresponsibility in failing to use due care for his own safety erased whatever fault could be laid at defendant’s feet for contributing to the injury.” Scott v. Rizzo, 96 N.M. 682 , 634 P.2d 1234, 1237 (1981) (citing F. Harper and F. James, Law of Torts, § 22.1 at 1198 (1956)). Neither of these justifications, however, carry weight in present-day Maryland.

In today’s soci ⁷⁰⁸ ety, 10 there has been no need demonstrated to protect any “newly-developing” industry at the expense of injured litigants. Industry generally in this nation is no longer fledgling or so prone to withering at the prospect of liability. See, e.g., Alvis v. Ribar, 85 Ill.2d 1 , 52 Ill.Dec. 23 , 421 N.E.2d 886, 893 (1981) (“There is no longer any justification for providing the protective barrier of the contributory negligence rule for industries of the nation at the expense of deserving litigants.”); Frum mer v. Hilton Hotels Int'l, Inc., 60 Misc.2d ⁷⁰⁹ 840 , 304 N.Y.S.2d 335, 341-42 (N.Y.Sup.1969) (“Courts now do not feel any need to act as a protector of our nation’s infant industries, for their infancy has long since passed.... In an age where a defendant may through various means, such as insurance, readily protect himself from a ruinous judgment, the solicitude of nineteenth century courts for defendants is certainly out of place.... ”).

Moreover, tilting the scales to favor industry is inconsistent with modern conceptions of justice, which focus instead on proportional responsibility and fundamental fairness. See Hilen v. Hays, 673 S.W.2d 713, 718 (Ky.1984) (“It may well be that the 19th century judicial mind perceived of the need for courts to tilt the scales of justice in favor of defendants to keep the liabilities of growing industry within some bounds. But assuming such a rule was ever viable, certainly it no longer comports to present day morality and concepts of fundamental fairness.” (internal citation and quotation marks omitted)); Robert H. Lande & James MacAlister, Comparative Negligence with Joint & Several Liability: The Best of Both Worlds, U. Balt. L.Rev. Online 1, 2 (2012) (noting that Maryland’s system of contributory negligence “frustrated the interests of justice as to the litigants”).

Rather, the array of Amici lined up in support of the continuation of contributory negligence is populated by the entrenched and established business interests who seek to maintain an economic advantage. The evolution of society’s conceptions of justice is exemplified by the move of tort law away from traditional “all-or-nothing” recovery rules and toward allocation of the burden of liability among at-fault parties. Guido Calabresi & Jeffrey O. Cooper, The Monsanto Lecture: New Directions in Tort Law, 30 Val. U.L. Rev. 859, 868 (1995).

Liability, in negligence actions, “follows tortious conduct.” Austin v. Mayor & City Council of Baltimore, 286 Md. 51, 83 , 405 A.2d 255, 272 (1979) (Cole, J., dissenting); Scott, 634 P.2d at 1241 (“Liability based on fault is the cornerstone of tort law....”). Contributory negligence is at odds with this fundamental premise. By barring recovery completely to a contributorily negligent plaintiff, the rule “visits the entire loss caused by the fault of ⁷¹⁰ two parties on one of them alone, and that one the injured plaintiff, least able to bear it, and quite possibly much less at fault than the defendant who goes scot-free.” Prosser, Comparative Negligence, supra, at 469. Respondent and its Amici count as a strength of the doctrine of contributory negligence its inflexibility in refusing to compensate any, even marginally, at-fault plaintiff.

They argue that, in so doing, contributory negligence encourages personal responsibility by foreclosing the possibility of recovery for potential, negligent plaintiffs, and thus cannot possibly be outmoded. 11 To the contrary, that the doctrine of contributory negligence grants one party a windfall at the expense of the other is, as courts and commentators alike have noted, unfair manifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d 1037, 1048 (Alaska 1975) (“The central reason for adopting a comparative negligence system lies in the inherent injustice of the contributory negligence rule.”); Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973) (“Whatever may have been the historical justification for [the rule of contributory negligence], today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss.”); Lande & MacAlister, supra, at 4 (“The ‘all or nothing’ system [of contributory negligence], disconnected from a party’s degree of fault, is unfair and counterintuitive.”); Prosser, Comparative Negligence, supra, at 469 (characterizing contributory negligence as “outrageous” and an “obvious injustice” that ⁷¹¹ “[n]o one has ever succeeded in justifying ..., and no one ever will”). Moreover, if contributory negligence encourages would-be plaintiffs to exercise caution with respect to themselves, then so too does the doctrine of comparative fault by reducing the plaintiffs recoverable damages. Unlike contributory negligence, however, comparative fault deters also negligence on the part of the defendant by holding him or her responsible for the damages that he or she inflicted on the plaintiff.

See Lande & MacAlister, supra, at 5-6 (noting that, although contributory negligence systems “burden[ ] only plaintiffs with the obligation to take precautions,” comparative negligence provides a “mixture of responsibility” that is “the best way to prevent most accidents”); Prosser, Comparative Negligence, supra, at 468 (“[T]he assumption that the speeding motorist is, or should be meditating on the possible failure of a lawsuit for his possible injuries lacks all reality, and it is quite as reasonable to say that the rule promotes accidents by encouraging the negligent defendant.”). Thus, Respondent’s contention that contributory negligence encourages personal responsibility, and is therefore preferable to comparative negligence, is unpersuasive. Respondent contends also that the foundation of contributory negligence remains strong because, as we said in Harrison , “Maryland cases do not reflect any general dissatisfaction with the contributory negligence doctrine.” 295 Md. at 458 , 456 A.2d at 898 . That the courts of this State have applied uniformly the doctrine, however, does not mean that we did not recognize along the way its flaws. 12 See Bozman, 376 Md. at 472 , 830 A.2d at 457 .

For example, as Judge Eldridge ⁷¹² noted recently, our retention of contributory negligence garnered extensive criticism — “few if any other legal principles have been criticized as much as this Court’s continued adherence in negligence actions to the doctrine of contributory negligence and the Court’s refusal to adopt comparative negligence.” State v. Adams, 406 Md. 240, 332 , 958 A.2d 295, 351 (2008) (Eldridge, J., dissenting), overruled by Unger v. State, 427 Md. 383 , 48 A.3d 242 (2012). The Court of Special Appeals also noted similar criticism, calling the doctrine “harsh and pitiless,” and noted that we are among the severe minority of states adhering still to it. See Preston Carter v. Senate Masonry, Inc., 156 Md.App. 162, 175 , 846 A.2d 50, 58 (2004); see also Stewart v. Hechinger Stores Co., 118 Md.App. 354, 359 , 702 A.2d 946, 949 (1997) (“Although we are aware of the often harsh consequences of Maryland’s common law doctrine of contributory negligence, and that it has been abandoned by a vast majority of states in favor of some form of comparative negligence, we are in no position summarily to do so.”). Moreover, since our decision in Harrison , the doctrine of comparative negligence has continued to be accepted elsewhere as the superior legal principle.

At the time Harrison was decided, thirty-nine states had replaced the doctrine of contributory negligence with some form of comparative negligence. See 295 Md. at 453 , 456 A.2d at 899 . This trend has continued unabated. Today, the number of states applying comparative negligence is forty-six, and not one jurisdiction adopting it has since retreated and re-adopted contributory negligence.

Rather, seven additional states have enacted comparative negligence systems since Harrison . What was at the time of Harrison a quickening trend within the United States is today an established principle of law in nearly every right-thinking common law jurisdiction in the world, see Pla ⁷¹³ cek v. City of Sterling Heights, 405 Mich. 638 , 275 N.W.2d 511, 515 (1979) (“[Ajlmost every common-law jurisdiction outside the United States has discarded contributory negligence and has adopted in its place a more equitable system of comparative negligence.”); John W. Wade, A Uniform Comparative Fault Act —What Should it Provide?, 10 U. Mich. J.L. Reform 220 , 221 (1977) (noting that after England, Canada, and Australia abrogated contributory negligence, the United States became the “primary location of the contributory negligence rule”), with the exception of Maryland, Alabama, the District of Columbia, North Carolina, and Virginia. See 2 Dobbs, supra, § 220 at 772.

Respondent argues, in effect, that there has not been a significant change in the state of law or society since Harrison , and therefore there is no reason to depart from stare decisis and reconsider whether the doctrine of contributory negligence should be retained in the State of Maryland. I could not disagree more. At the time Harrison was decided, the country was in the midst of a broad reform effort sweeping the nation. The doctrine of comparative fault was of fairly recent vintage at the time Harrison was filed, adopted in most states in the ten years prior to our decision.

See Robert D. Cooter & Thomas S. Ulen, An Economic Case for Comparative Negligence, 61 N.Y.U. L.Rev. 1067, 1075 (1986) (noting that most states adopted comparative negligence in the 1970s and early 1980s). Essentially, Respondent contends that, because our decision in Harrison was made when the movement toward reform of negligence principles was well underway, this Court is constrained to retain the doctrine forever, having missed the single opportunity to get on board the train. Respondent’s argument seems to suggest that, so long as there is some delay in abandoning an unjust law, the unjust law remains irretrievably an albatross tied around the neck of our common law, unless and until the Legislature decides to save us. 13 As our decision in Bozman demonstrates, however, ⁷¹⁴ our authority to modify the common law and overrule prior decisions is not so limited. Although only seven additional states have implemented comparative fault since Harrison , forty-six states now employ comparative fault. 14 Comparative fault is no longer a trend or a doctrine of recent vintage, but rather is an established and integral doctrine to the negligence systems of nearly every state in the country.

Other jurisdictions, most notably those that abrogated contributory negligence judicially, have decades of experience applying comparative fault — experience that, in large part, was lacking at the time we decided Harrison . The twelve states to abrogate contributory negligence by judicial decision provide examples of how comparative negligence is applied, how it impacts collateral doctrines and fault systems, and how it is applied in reality. 15 In essence, this Court may foresee more clearly today potential impacts and complications, as well as the value of a comparative fault system, than was possible in 1983. Maryland is no longer at the crest of a wave of reform — instead, it has been left behind, one of the last bastions of contributory negligence in a world which has discarded it as unjust and outmoded. In my estimation, this qualifies certainly as a significant change warranting reconsideration of Harrison .

Although I recognize certainly the value of the doctrine of stare decisis, see, e.g., Unger v. State, 427 Md. 383, 418 , 48 ⁷¹⁵ A.3d 242, 262 (2012) (Harrell, J., dissenting), I do not believe that in this instance, strict adherence is appropriate or warranted. See, e.g., Alvis, 52 Ill.Dec. 23 , 421 N.E.2d at 896 (“Clearly, the need for stability in law must not be allowed to obscure the changing needs of society or to veil the injustice resulting from a doctrine in need of reevaluation.”); McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn.l992)(declining to “mindlessfly]” follow stare decisis). I do not believe that because Harrison reaffirmed the vitality of contributory negligence in this State, absent legislative action, this Court is muted forever on the topic. The bounds of stare decisis are not so strict.

Continued adherence to the doctrine of contributory negligence as rote obeisance to the principles of stare decisis and legislative deference “represents judicial inertia rather than a reasoned consideration of the intrinsic value of the rule.” Kaatz, 540 P.2d at 1049 . Contributory negligence is no longer justified, has been discarded by nearly every other jurisdiction, and is manifestly unjust. Thus, I conclude that contributory negligence is a vestige of the past, and that in considering whether to abrogate the doctrine of contributory negligence, we are not bound by our decision in Harrison . B. This Court Need Not Defer to Continued Legislative Inaction Respondent argues that, notwithstanding our decision in Harrison , whether to abrogate contributory negligence in favor of comparative fault is a matter more properly suited to the legislative, rather than judicial, process.

In Harrison , we noted that “in considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State’s public policy — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly.” 295 Md. at 460 , 456 A.2d at 903 . Because declaration of public policy is generally a matter for the Legislature, we declared our “particular! ] reluctance] to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State!,]” id., and ⁷¹⁶ noted that we owe “initial deference to the legislature where change is sought in a long-established and well-settled common law principle.” Id. at 461 , 456 A.2d at 904 . In considering whether the doctrine of contributory negligence was declared the public policy of the State of Maryland, we placed particular emphasis on the Legislature’s consideration of numerous bills proposing to adopt the doctrine of comparative negligence. Specifically, we noted that between 1966 and 1982, the General Assembly considered twenty-one bills proposing the adoption of comparative negligence, yet none passed.

Id. “Although not conclusive,” we stated, “the legislature’s action in rejecting the proposed change is indicative of an intention [on the part of the Legislature] to retain the contributory negligence doctrine.” Id. Our statements in Harrison did not circumscribe, however, our authority to alter judicially-created common law rules in the face of repeated legislative inaction on the subject. Although we have declined frequently to effect changes in decisional doctrine upon observing repeated legislative inaction, see, e.g., Potomac Valley Orthopaedic Assocs. v. Md. State Bd. of Physicians, 417 Md. 622, 639-40 , 12 A.3d 84, 94 (2011) (“Our conclusion is confirmed by the fact that, in 2007, 2008, 2009, and 2010, the General Assembly ‘rejected efforts to achieve legislatively that which we [are being] asked to grant judicially.’ ” (alterations in original) (citation omitted)); Moore v. State, 388 Md. 623, 641 , 882 A.2d 256, 257 (2005) (“Legislative inaction is very significant where bills have repeatedly been introduced in the General Assembly to accomplish a particular result, and where the General Assembly has persistently refused to enact such bills.”), we determined, on multiple occasions, that legislative inaction may not be a sufficient premise from which to draw a positive legislative intent in certain situations. See, e.g., City of Balt.

Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 329 , 910 A.2d 406, 424