Maryland Tort Damages: A Form of Sex-Based Discrimination
University of Baltimore - School of Law
University of Baltimore Law Forum, Vol. 37, No. 2, pp. 97-118, Spring 2007
Maryland law provides that “compensatory damages are not to be awarded in negligence or strict liability actions absent evidence that the plaintiff suffered a loss or detriment.” At the same time, Maryland imposes a statutory cap on noneconomic damages in tort claims for personal injury. First enacted in 1986, the statutory cap imposed a $350,000 limit on recovery of noneconomic damages. Following a Court of Appeals of Maryland decision that the cap did not apply to wrongful death actions, the Maryland General Assembly explicitly modified the statute to include wrongful death actions. At the same time, the cap was increased to $500,000 for causes of action arising after October 1, 1994. In 1996, the Maryland General Assembly increased the cap by an additional $15,000 for causes of action arising after October 1, 1995. A single cap applies to the action of an injured spouse and includes the award for loss of consortium.
In this essay, I argue that the statutory cap on noneconomic damages in Maryland disproportionately disadvantages women. For this reason, the cap, although facially neutral, is in fact discriminatory in its impact on female litigants. In addition, the cap may have the unintended effect of limiting the quality of the legal representation available to female tort litigants in Maryland. Moreover, several other issues in Maryland tort law may inadvertently contribute to discrimination against women litigants. These include the Maryland adherence to contributory negligence as a complete bar to negligence claims and the Maryland approach to punitive damages. Ultimately, Maryland tort law, although facially neutral, disadvantages women.
Number of Pages in PDF File: 23
Keywords: negligence, strict liability, compensatory damages, Maryland, noneconomic damages, statutory cap, sex discrimination, torts, women, punitive damages
JEL Classification: K13, K39Accepted Paper Series
Date posted: June 18, 2009
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