Montgomery County v. Valk Manufacturing Co.

BLACKWELL, Judge. When Dr. Srinivasa Rangaswamy entered Great Falls Road in his Toyota, he was immediately and fatally struck by an oncoming dump truck. In addition to chest injuries from the collision, his head was punctured by a snow plow arm which extended outward from the front of the truck. His family sued both the manufacturer of the snow plow and the truck owner who had used the plow without its blade.

Because the court found that Rangaswamy was contributorily negligent in causing the accident, his family could not recover on its negligence claim against the truck owner who had used the plow. Contributory negligence is not a defense to strict liability, and a jury found the manufacturer strictly liable for its snow plow design. The issue here is whether the manufacturer may recover from the plow’s user some of the money it paid to the plaintiffs— even though the plaintiffs could not have held the plow’s ¹⁸⁷ user liable. We hold that the Uniform Contribution Among Tortfeasors Act (“UCATA”) does not establish a right of contribution under these circumstances.

See Maryland Code (1957, 1986 Repl.Vol.) Article 50, §§ 16 to 24. I. Montgomery County (“the County”) purchased a snow plow made by the Valk Manufacturing Company (“Valk”) and had it installed on one of its trucks. On a snowless day in December of 1982, the County drove the truck with the plow device—but without the plow blade. Absent the blade, a steel plow arm extended at least twenty-nine inches from the bumper and radiator of the truck.

At trial, one witness described it as a “battering ram.” According to that witness, the County could have lowered the plow arm in about two minutes through the removal of some cotter pins. While travelling along Great Falls Road in Montgomery County, the truck collided with the car driven by Dr. Rangaswamy (“Rangaswamy”). Rangaswamy had pulled out onto Great Falls Road from West Kersey Lane and directly in front of the oncoming truck. 1 As a result of the collision, the steel arm of the snow plow penetrated the driver’s window of the car. Rangaswamy suffered puncture wounds in the left side of his skull in addition to chest injuries.

He died shortly thereafter. The decedent’s widow and son brought a wrongful death action in negligence against the County and in strict liability against Valk. 2 Valk filed a negligence cross-claim against the County for contribution. After hearing the plaintiffs’ and Valk’s case, the judge found that Rangaswamy had ¹⁸⁸ been contributorily negligent in pulling his car into the intersection. Upon motions for directed verdict, he dismissed the plaintiffs’ claim against the County and Valk’s cross-claim against that entity.

While contributory negligence bars direct negligence claims, the defense does not bar strict liability claims. See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597 , 495 A.2d 348, 356 (1985); Anthony Pools v. Sheehan, 295 Md. 285, 299 , 455 A.2d 434, 441 (1983), aff'g, 50 Md.App. 614, 620-26 , 440 A.2d 1085 , 1089-92 (1982); see generally Restatement (Second) of Torts § 402A comment n (1965). The plaintiffs therefore pursued the remaining strict liability claim against Valk alleging that Valk should have manufactured a snow plow with a quick disconnect device which would facilitate the removal of the snow plow arm. 3 The jury found that Valk was liable for creating a defective and unreasonably dangerous snow plow design and awarded $2,500,000.00 in damages. Upon the denial of its post-trial motions, Valk appealed.

Among other things, the Court of Special Appeals held that Valk’s cross-claim against the County for contribution had been incorrectly dismissed. Valk Manufacturing v. Rangaswamy, 74 Md.App. 304, 329-30 , 537 A.2d 622, 634-35 (1988). Noted the Court of Special Appeals, “[t]he facts only established that the contributory negligence of Dr. Rangaswamy precluded his representatives from doing anything about that fault. It would not, however, preclude others from seeking proper redress.” Id. at 330 , 537 A.2d ¹⁸⁹ at 635.

We granted certiorari to consider whether a right of contribution exists in this case. ¹⁸⁸ [i]f you do not have any quick action coupling on there with a check valve in connection with it, when you take it off it is going to drain all the oil out. So, you have to put a coupling on there that you can disconnect quickly and then you do not lose your oil and there is no big problem. Otherwise you would have to refill the whole hydraulic system everytime that you did not do that. ¹⁸⁹ II. As early as 1799, the English common law barred contribution among joint tortfeasors.

In Merryweather v. Nix-an, 8 Term.Rep. 186, 101 Eng.Rep. 1337 (1799), two parties acted intentionally and in concert against the plaintiff. The plaintiff sued one of the parties and obtained full judgment. That party was barred from seeking damages from the non-paying party on the rationale that a wrongdoer should not be able to recover anything as the result of his or her wrongful act. Prosser and Keeton on Torts § 50, 336-37 (W. Page Keeton 5th ed. 1984).

The case did not consider contribution in the context of mere negligence, as opposed to intentional wrongdoing. “It was not until 1894 that the question was even raised in England in a case of concurrent negligence, and the better English view, even before their statute, appears clearly to have been that contribution is not denied in cases of mere vicarious liability, negligence, accident, mistake, or other unintentional breaches of the law.” Id. at 337 (emphasis added). As in Merryweather, early American courts barred contribution in cases of wilful misconduct. Those courts, however, subsequently extended that bar to negligent conduct as well. Prosser and Keeton at 337.

This historical turn of events has been much criticized: “There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiffs whim or spite, or the plaintiffs collusion with the other wrongdoer, while the latter goes scot free.” Id. at 337-38. It is this unfairness which the UCATA sought to remedy. 12 U.L.A. 59, Commissioners’ Prefatory Note to 1955 Version (1975) (“This act would distribute the burden of responsibility equitably among those who are jointly liable and ¹⁹⁰ thus avoid the injustice often resulting under the common law.”). The act “establishes the right of a person liable for damages for an unintentional wrong to compel others, who are liable with him for the same damages, to share in discharging the common liability.” Id. at 59. Created in 1939, the uniform law was later revised in 1955.

At least nineteen states have adopted the law, either in its original or revised form. 12 U.L.A. 71 (Supp.1989). 4 III. In 1941, Maryland enacted a modified version of the UCATA. 1941 Maryland Laws Chapter 344. As this Court stated shortly after its passage: “The primary purpose of the [UCATA] was to create a right of contribution among joint tortfeasors which did not exist at common law ... and to establish a procedure whereby that right might be made effective in practice.” Baltimore Transit Co. v. State ex rel. Schriefer, 183 Md. 674, 679 , 39 A.2d 858, 860 (1944).

Maryland had originally barred contribution among all joint tortfeasors. E.g. Baltimore & Ohio R.R. Co. v. Howard County, 113 Md. 404 , 77 A. 930 (1910). Although the uniform law was later revised, Maryland retained, for the most part, the version it originally adopted.

Maryland’s only substantive revision of the Act has been alteration and then abrogation' of the third party practice ¹⁹¹ provision originally contained in the UCATA. See 1957 Md.Laws Ch. 399 (repealing third party practice provision); 1947 Md.Laws Ch. 717 (modifying third party practice provision). Now third party practice in contribution cases is regulated by Maryland Rule 2-332, formerly Md.Rule 315 5 The goals of the procedural device, however, remain the same. “The purpose of the third party practice provided for by the [UCATA] and by the Rules which have superseded it [is] to try in one action all phases of litigation among the original and impleaded parties____” Stem v. Nello L. Teer Co., 213 Md. 132, 144 , 130 A.2d 769, 775 (1957).

IV

According to the UCATA, “[t]he right of contribution exists among joint tortfeasors.” Maryland Code (1957, 1986 Repl.Vol.) Article 50, § 17(a). This right is inchoate, however, until one joint tortfeasor “has by payment discharged the common liability or has paid more than his pro rata share thereof.” Art. 50, § 17(b) (emphasis added). In order for Valk to seek contribution from Montgomery County under the UCATA, both must be “joint tortfeasors.” According to the UCATA, joint tortfeasors “means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” Art. 50, § 16(a) (emphasis added). We now consider the meaning of the terms “liable in tort” and “common liability” as they are used in the UCA-TA.

If they denote mere culpability to the plaintiff for a wrong, then the County might be considered a joint tort ¹⁹² feasor and subject to contribution. 6 If the terms denote legal responsibility to the plaintiff for a wrong, the County is not a joint tortfeasor and is therefore not subject to contribution. The County was held not liable to plaintiffs as a result of Rangaswamy’s own contributory negligence. A. We have previously construed the language at issue in the context of interspousal immunity and worker’s compensation immunity. In Ennis v. Donovan, 222 Md. 536 , 161 A.2d 698 (1960), the plaintiff sued Ennis for negligent driving.

Ennis, in turn, sued the plaintiff’s spouse who had been driving at the time of the collision. We held that because the plaintiff was barred by interspousal immunity from suing Mr. Donovan directly, 7 the defendant could not sue him indirectly for contribution. We reasoned that the UCATA “ ‘is only applicable to a situation where there is a common liability to an injured person in tort. * * * [TJhere can be no contribution where the injured person has no right of action against the third party defendant.’ ” Id. at 540 , 161 A.2d at 700 (quoting Baltimore Transit Co. v. State ex rel. Schriefer, 183 Md. 674, 679 , 39 A.2d 858, 860 (1944)). “[T]he right, if any, of ... the defendant to contribution from ... the third party defendant is a derivative right and not a new cause of action.” Id. 222 Md. at 539 , 161 A.2d at 700 ; see Krick v. Carter, 477 F.Supp. 152, 153 (M.D.Pa.1979) (stating that Maryland bars contribution in the context of interspousal immunity).

In the Schriefer case which we quoted, we had barred contribution where the third party defendant was an employer who had achieved immunity through compliance with the Workmen’s Compensation Act. In reaching that conclusion, we relied on the Commissioners’ notes to the 1939 ¹⁹³ version of the UCATA. As quoted in Schriefer, these notes stated that 1) “[t]he common obligation contemplated by this Act is the common liability of the tortfeasors to suffer adverse judgment at the instance of the injured person whether or not the injured person elects to impose it” and 2) the Act “permits contribution among all tortfeasors whom the injured party could hold liable jointly and severally for the same damage or injury____” Schriefer, 183 Md. at 680 , 39 A.2d at 860-61 . These comments clearly reflect the Act’s assumption that contribution from a third party defendant is predicated on his or her direct liability to the plaintiff. 8 We have since described that case as holding “that there [is] no right of contribution where the injured person has no right of action against the third party defendant.” Stem v. Nello L. Teer Co., 213 Md. 1 142 , 130 A.2d 769, 774 (1957).

Similarly in Hatzinicolas v. Protopapas, 314 Md. 340 , 550 A.2d 947 (1988), Judge Rodowsky, writing for the majority, noted that “[o]ur cases have held that there is no right to contribution from an alleged joint tortfeasor who enjoys immunity as to the plaintiff’s claim, because there is no common liability to the plaintiff.” Id. at 353 , 550 A.2d at 954 ; see generally 5 MLE Contribution § 3 at 548-49 (1960) (“The Act applies only where there is a common liability to an injured person in tort, and where an injured person has no right of action against a third person, there can be no contribution entitling defendant to join the third person as defendant under the Act, notwithstanding the liability under the Act may be joint or several, since the right of contribution is a derivative right and not a new cause of action.”) (footnotes omitted). The reasoning of the Schriefer case has been extended by the United States District Court for the District of Mary ¹⁹⁴ land to cases of parent-child immunity. In Zaccari v. United States, 130 F.Supp. 50 (D.Md.1955), the court held that the defendant could not seek contribution from the plaintiffs father because the plaintiff was barred from suing her father under Maryland law. 9 Schriefer and Zaccari have been relied on by other courts for the proposition that there must be common liability to the plaintiff in order to obtain contribution. E.g.

Robinson v. Adco Metals, Inc., 663 F.Supp. 826, 831 (D.Del.1987). Federal courts applying Maryland law continue to sustain this general proposition. In Fischbach & Moore Int’l v. Crane Barge R-14, 476 F.Supp. 282 (D.Md.1979), aff'd, 632 F.2d 1123 (4th Cir.1980), the lower court noted that “any entitlement to contribution which a concurrent wrongdoer may have from another culpable party arises from the duty each of the wrongdoers owes to the injured party, as opposed to no obligation running among themselves.” This point was later reiterated in Pyramid Condominium Ass’n v. Morgan, 606 F.Supp. 592 (D.Md.1985): “When a plaintiff has no right of action against a third party, there can be no contribution entitling the defendant to join the third party as a defendant under the Uniform Act, notwithstanding the fact that liability under the Act may be joint or several.” Id. at 598 . The majority of UCATA jurisdictions have barred contribution where interspousal or parent-child immunity exists.

Welter v. Curry, 260 Ark. 287 , 539 S.W.2d 264 (1976) (parent-child immunity); Short Line, Inc. v. Perez, 238 A.2d 341 (Del.1968) (interspousal immunity); Strahorn v. Sears, Roebuck & Co., 50 Del. 50 , 123 A.2d 107 (1956) (parent-child immunity); Rodgers v. Galindo, 68 N.M. 215 , 360 P.2d 400 (1961) (interspousal immunity), overruled on other ¹⁹⁵ grounds, Maestas v. Overton, 87 N.M. 213 , 531 P.2d 947, 948 (1975); Lee v. Mowett Sales Co., 316 N.C. 489 , 342 S.E.2d 882, 883 (1986) (parent-child immunity); Moler v. Quality Chevrolet, Inc., 2 Ohio App.3d 120 , 440 N.E.2d 1228, 1229 (1981) (interspousal immunity), overruled on other grounds, Shearer v. Shearer, 18 Ohio St.3d 94 , 480 N.E.2d 388 (1985); Tenn.Code Ann. § 29-11-102(a) (1980) (barring contribution in the context of immunities); 10 see Liberty Mut. Ins. Co. v.