Friday, March 24, 2017

Maryland Court of Special Appeals Upholds Decision Holding Prince George's County Liable for the Actions of an Off-Duty Police Officer

Prince George’s County v. Morales, 230 Md. App. 699, 149 A.3d 741 (2016)

In October 2010, the Omega Psi Phi fraternity at the University of Maryland at College Park held a Halloween party at an off-campus house. As with so many Halloween parties unfortunately, it ended with a physical altercation and a lawsuit.

The fraternity hired Prince George’s County Police Officer Dominique Richardson to provide security at the party. Officer Richardson was assigned to “light duty” at the time due to his recent knee surgery, thus he violated a policy that prevented officers on light duty from performing extra work. An altercation occurred at the Halloween Party in which Officer Richardson admitted that he punched and restrained the aggressive Plaintiff and party-goer Steven Morales.

Plaintiff filed a civil suit against Officer Richardson and Prince George’s County alleging battery, excessive force and vicarious liability. The jury found that the County was liable for the actions Officer Richardson under the theory of respondeat superior, and awarded the Plaintiff $121,141.

The Maryland Court of Special Appeals affirmed the judgment against the County despite the County’s argument on appeal that Officer Richardson was acting outside of the scope of his employment due to his light duty restrictions. The Court disagreed with the County, and based its opinion on Prince George’s County’s “Extra-Duty Policy,” which permits an off-duty officer to take police action when circumstances warrant.  The Court stated that the crowd at the party became “agitated” and Morales became “aggressive,” which permits a police officer to intervene under the “Extra-Duty Policy.” The Court also noted that Officer Richardson was wearing his PGPD badge next to a marked a police cruiser, making Officer Richardson identifiable as a police officer. Evidently, the Court was not concerned with the fact that any other party-goer could have been dressed as a police officer on the night of a Halloween party.

The Court found that the “Extra-Duty Policy” coupled specifically with Plaintiff’s aggression, created sufficient evidence for a jury to find that Officer Richardson was operating within the scope of his duties as the circumstances warranted police action. Thus, the County was found vicariously liable for the actions of Officer Richardson and the judgment was affirmed in favor of the Plaintiff. 

Friday, March 3, 2017

RSRM Welcomes Two New Associates

Rollins, Smalkin, Richards & Mackie, LLC is pleased to announce the addition of two new associates to our team.

Brennan Walter is a 2012 graduate of the University of Baltimore School of Law, and a 2009 graduate of Hampden-Sydney College.  While in law school, Mr. Walter was the Vice Justice of his school’s Phi Alpha Delta chapter.  He also spent time clerking for the Baltimore City State’s Attorney’s Office and he served as a Rule 16 Assistant State’s Attorney in Harford County.

Before joining RSRM, Mr. Walter was a trial attorney for a general litigation firm, and he had the opportunity to try a number of District and Circuit Court cases involving both criminal and civil issues.  Mr. Walter's areas of focus include insurance defense and premises liability, and he has experience both defending and prosecuting personal injury claims throughout the State of Maryland.     

Tara McDowell graduated from the University of Baltimore in 2005.  She attended the University of New Mexico for her undergraduate education before obtaining a master's degree in Sociology from the University of Toledo in 2002.  

Ms. McDowell is an experienced litigator and trial attorney.  Prior to joining RSRM, she spent ten years working as in-house counsel for two national insurance carriers where she had the opportunity to gain significant courtroom experience.  Her areas of focus are insurance defense, insurance coverage matters, personal injury, and premises liability.  

Monday, January 16, 2017

Changes to the Federal Rules Seek to Speed Up the Pre-Trial Process and Encourage Attorney Cooperation

Recent amendments to the Federal Rules of Civil Procedure, which took effect at the end of 2015[1], are designed to promote the swift and inexpensive resolution of cases by promoting cooperation between the Court and practitioners. The scope of the Federal Rules was expanded in Rule 1 to require parties, as well as Courts to construe, administer and employ the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Given the steadily increasing cost of litigation, these appear to be welcome changes.  

A number of the rule changes focus on limiting the length of time a case may spend languishing in the pre-trial process.  Rule 4(m) has shortened the time by which a moving party must serve a summons and complaint from the previous 120-day limit to 90 days. Similarly, Rule 16 reduces the time to enter scheduling orders to the earlier of 90 days after a defendant has been served or 60 days after a defendant has entered an appearance. The Rule previously allowed the court to issue a scheduling order up to 120 days after a defendant had been served or 90 days after a defendant had entered an appearance. Additionally, scheduling orders may now direct parties to request a conference with the Court prior to filing discovery motions.[2]  Rule 16(b)(1) encourages interaction between the parties and judges through “direct simultaneous communication.” Speaking at the University of Baltimore School of Law, U.S. District Judge John G. Kroll of the Southern District of New York recently explained that early and active judicial case management is key to accelerating the pace of litigation, stating “this is meant to be a cooperative and collaborative process.”[3]

The Rules of discovery have also been amended in an effort to streamline the discovery process and tamper down litigation costs. Rule 26(b)(1) replaces the former “reasonably calculated to lead to the discovery of admissible evidence” standard with “any non-privileged matter that is relevant to any party’s claims or defense and proportional to the needs of the case.” In an effort to provide litigants with additional time to locate responsive documents for production, changes to Rule 26(d)(2) and Rule 34(b)(2)(A) now allow an early requests for production to be served prior to the Rule 26(f) conference. The changes allow 30 days after the first Rule 26(f) conference to respond, instead of the usual 30 days after service of the requests.

Under the new Rules, litigants are also no longer allowed to make boilerplate objections to discovery requests. In addition to prohibiting boilerplate objections, Rule 34 now requires that objections “state with specificity the grounds for objecting” and “whether any responsive materials are being withheld.” By way of example, the Committee notes that a litigant may object that a request is overbroad, for instance, but “should state the scope that is not overbroad.” The Rule also includes a new provision requiring that the production be completed “no later than the time for inspection specified  in the request or another reasonable time specified in the response.” The newly added language limits the ability of litigants to engaged in unlimited rolling productions which serve to extend discovery and slow down the judicial process.

The recent changes to the Rules share the common focus of encouraging cooperation between the parties and the judiciary during the pre-trial process and, especially, when completing discovery. Judges hope that this will encourage attorneys to think twice before employing obstructionist tactics during the discovery and pre-trial process and teach lawyers, young and old alike, that the best way to practice is with a collaborative attitude.[4]  The new discovery rules, in particular, encourage openness by requiring more specific objections and discourage “hiding the ball” by requiring litigants to acknowledge whether responsive materials are being withheld. As litigants gain experience with the new Rules, a streamlined, less expensive and more congenial federal judicial process should result to the benefit of all involved.  

We anticipate that state rule making bodies, including Maryland and D.C., will follow these rule changes closely, as they often use the Federal Rules of Civil Procedure as a model for their own procedural rules.  The attorneys at RSRM will therefore be monitoring these rule changes and changing their practice accordingly.      

[1] The amendments apply to newly filed cases, as well as pending cases “insofar as just and practicable.” Supreme Court of the United States, Amendments to the Federal Rules of Civil Procedure, available at
[2] Fed. Rule., Civ. Pro. 16(b)(3).
[3] “Rule changes push for cooperation in federal civil litigation” Heather Coburn, The Daily Record. September 23, 2016, available at
[4] Id.

Wednesday, December 14, 2016

Congratulations to RSRM's Super Lawyers!

RSRM congratulates Jim Andersen, Rod Barnes, and Paul Donoghue for being named Super Lawyers for 2017, and Tara Barnes and Jessica Butkera for being named Rising Stars.  

For more information on Super Lawyers selection process and criteria, please visit the Super Lawyers web site here.  

Monday, December 12, 2016

Welcome Commissioner Tracey Warren

Rollins, Smalkin, Richards & Mackie is pleased to welcome Tracey Warren who was appointed a member of the Maryland Workers’ Compensation Commission by Governor Larry Hogan.   

Commissioner Warren holds an undergraduate degree from Morgan State University and earned her Juris Doctorate from the University of Baltimore School of Law.  She later received her LL.M in taxation from the Georgetown University Law School.  Commissioner Warren previously worked as an attorney with the U.S. Department of Veterans Affairs, the Southern Maryland Center for Family Advocacy, and as an Assistant State’s Attorney in the Montgomery County State’s Attorney’s Office.  She has been a long-time advocate for victims of domestic violence and developmentally disabled adults. 

The attorneys at RSRM look forward to presenting and arguing cases before our new commissioner.  

Thursday, December 1, 2016

Tara Barnes to be Awarded Distinguished Alumni Leader in Service Award by the Baltimore City State's Attorney's Office

RSRM is pleased to announce that partner, Tara Barnes, is being honored this evening as a Distinguished Alumni Leader in Service by the Office of the State's Attorney for Baltimore City at their Annual Winter Solstice Benefit Recognition Gala.

Ms. Barnes was chosen for this award for her continuing commitment to the Baltimore community, and in recognition for her accomplishments after leaving the Office of the State's Attorney. 

The reception will be held at 6 p.m. this evening at the Radisson Hotel.  Congratulations Tara!    

Monday, October 24, 2016

Passenger Assumes the Risk of Riding with Drunk Driver, says Md. Court of Special Appeals Decision

Kerry Evans v. Joshua Shores, et al., No. 0506, 2016 WL 4723417 (Md.App. September 8, 2016)  

On September 8, 2016, the Maryland Court of Special Appeals filed an unreported decision in Kerry Evans v. Joshua Shores, et al., holding that a passenger assumed the risk of injuries she sustained while riding in a vehicle with an intoxicated driver.

This case arose out of a November 10, 2013 single-vehicle accident in Newark, MD. Immediately after the collision, police arrested Joshua Shores—the driver—who registered a blood-alcohol concentration of 0.15%. Prior to the accident, Plaintiff Kerry Evans and Defendant Shores had spent the evening together drinking with friends. Throughout the evening, Shores drank an estimated four to five alcoholic drinks in Evans’ presence, and up to ten beers and multiple shots in total. When the pair met at Shores’ truck to leave the party, it took Shores four tries to successfully back out of the driveway, which Evans testified was “because he’s either too drunk or he can’t see where he’s going because of this impaired state.” Once out of the driveway, Shores sped away on a highway where he lost control of the vehicle, jumped a ditch, and headed into a bank of trees. Shores admitted that he was intoxicated at the time of the accident.  

In affirming the jury verdict from the Circuit Court for Worcester County, the Court of Special Appeals upheld an expert toxicologist’s testimony that knowing a person has consumed alcohol puts a passenger on notice that an adverse event will likely occur. Thus, given that notice, a passenger assumes the risk of injury by riding with an intoxicated driver. Evans challenged the trial court’s admission of this testimony, arguing it constituted a subjective opinion and unfairly prejudiced the jury against her. 

The Court of Special Appeals began its review with Maryland’s general rule for voluntary assumption of risk, asked by “whether there was an intentional an unreasonable exposure to danger, which the plaintiff either knew or had reason to know.” Power v. State u/o Reynolds, 178 Md. 23, 31-32 (1940). The Court concluded that Evans had sufficient notice of Shores’ intoxication because the two had partied together with a small group for several hours, mixed beer with shots of liquor, and because Evans admitted feeling nervous when Shores struggled to back out of the driveway. The Court also emphasized that Evans had completed an alcohol education course in school about the dangers of drunk driving, and she knew that Shores had a prior DUI.

Based on these factors, the Court rejected Evans’ challenge to the expert toxicology testimony. The Court reasoned that the testimony was relevant to show Evans’ knowledge of Shores’ intoxication. Further, the testimony was not unfairly prejudicial because it only bolstered other significant evidence that Evans had notice of Shores’ intoxication and should have appreciated the danger his potential drunk driving presented. The Court of Special Appeals therefore held that Evans assumed the risk of her injuries because she witnessed Shores consume substantial quantities of alcohol and understood the risks of riding with an intoxicated driver, yet she still chose to remain Shores’ passenger, even after he demonstrated signs of impairment.

Although Evans is unpublished and therefore not binding legal authority, it reflects the increasing intolerance of Maryland appellate courts for both intoxicated tortfeasors and those aware of their intoxication, particularly in the civil context. [1]  Evans, and cases like it, recognize that individuals aware of a person's intoxicated state owe a duty to both others and themselves to avoid the dangers created by it, and to find a sober ride home.

[1] For examples of this trend see recent articles published in the RSRM Blog, including  Ben Beasley, "Maryland Court of Special Appeals Limits Application of New Social Host Liability", September 16, 2016 and Jessica Butkera, “Social Hosts, Not Commercial Hosts, Liable for Alcohol-Related Injuries to Third Parties. For Now?July 7, 2016.