In two cases, argued by CCL’s John Vail, Maryland’s highest court, the Court of Appeals, refused to exercise its authority over the common law to adopt antiquated doctrines to modern times.  In Coleman v. Soccer Association of Columbia, the court retained contributory negligence as a complete bar to a plaintiff’s recovery, even if the injured person was only the smallest bit at fault and the defendant was the principal cause of the injury.  Only five jurisdictions retain the rule.  Instead, the court said that the legislature would need to make the change.

Justice Glenn T. Harrell, Jr., in dissent, poignantly chided the majority:

"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."

In the second case, Warr v. JMGM Group, the court declined to hold liable a bar, which had served 17 bottles of beer, 3 drinks of hard liquor and at least one other drink to a person who then refused a cab and instead hopped into his car and soon collided with a passenger vehicle, resulting in the death of a ten-year-old girl. The driver was subsequently convicted of homicide. The court held that the bar owed no duty to the child to protect her from the driver and that, in any case, whether such responsibility should be imposed was for the legislature, not the court, to decide.  A dissenting opinion extrapolated from social science research that imposing liability on bars, something known as dram shop liability, would reduce drunk driving deaths by 6.4%, which, in Maryland, would save 14 people per year from deaths due to drunk driving.

Both Coleman and Warr provide examples of a court, vested with authority to manage the common law and adapt it to the times, ceding its authority to the legislature. Where legislative stalemate is all too common and the law must adopt to changed circumstances and the lessons of experience, judicial deference of the sort envisioned by these cases does not serve the cause of justice.