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Pedestrian death again raises issue of contributory negligence

Witnesses to a traffic accident often ask who was at fault. Sometimes, the answer is clear, but in many instances, the answer can be far from clear, especially if more than one party was negligent. The recent death of a pedestrian in Severna again raises the issue of what lawyers and judges call "contributory negligence."

In this incident, a motorist was driving north on Ritchie Highway and struck a pedestrian attempting to walk across the road at its intersection with Jones Station Road. The pedestrian was pronounced dead at the scene. With only these facts to rely upon, a person may conclude that the motorist was at fault for failing to see the pedestrian. If a few more facts are added, however, the conclusion becomes much hazier.

Police said that the pedestrian was not using a marked crosswalk at the time of the crash. They added that the pedestrian was wearing a dark overcoat, making it difficult to see the individual, as the incident took place in the evening hours when it was dark outside.

With these additional facts, the pedestrian may be deemed to have acted negligently and that this conduct may make the pedestrian at least partially at fault for the accident, at least to a small degree. Under Maryland negligence law, a person is completely barred from recovering damages based on negligence if the person was partially at fault for the accident. Most states use the one of several variations of the rule known as comparative fault to avoid such an unjust result.

In comparative fault states, the jury determines the percentage of fault to be allocated to everyone at fault, and the court allocates the recovery based upon this finding. Maryland is one of only four states that still use contributory negligence as a complete bar to recovery in personal injury cases.

Contributory fault is often criticized as harsh and unfair, but the Maryland legislature has refused to change the law. Nonetheless, those harmed in an accident or have lost a loved one in a crash should understand their situation and what rights they are afforded when it comes to seeking legal recourses.

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