Monday, April 29, 2013

2013 Legislative Session Summary

            By midnight on the final day of the 2013 legislative session, 2,610 bills and eight (8) joint resolutions had been presented to the Maryland General Assembly.  Of those, 766 bills and none of the resolutions were passed. Some of the few highlights of the new legislation passed during the 2013 regular session include:

Pit Bulls
In Tracey v. Solesky, 427 Md. 627 (2012), the Maryland Court of Appeals held that pit bulls are inherently dangerous, and that owners of pit bulls are strictly liable for damages arising from injuries caused by their pit bulls.  SB 160 and HB 78 would have abrogated this holding by creating a rebuttable presumption that the owner knew or should have known of the dog’s vicious or dangerous propensities.  Ultimately, both bills failed, and Solesky remains the law of Maryland.

Connor’s Law

Connor’s Law (HB 364) mandates the implementation of an Artificial External Defibrillator (AED) program for counties and municipalities that own or operate swimming pools.  The program requires the onsite presence of an AED at each swimming pool and of an individual with training on using an AED.

Firearm Legislation

The Firearm Safety Act of 2013 (SB 281) expands regulation of firearms, firearm dealers, and ammunition.  The bill prohibits the sale of assault weapons, sales of firearm magazines larger than 10 rounds, and possession of a firearm or deadly weapon on public school property.  The bill also requires handgun license applicants to be at least 21 years old, submit to a criminal history check, submit fingerprints, and complete a safety course.

Death Penalty
With the passing of SB 261, the Maryland General Assembly repealed the death penalty.  Under the new legislation, individuals convicted of 1st degree murder must be given a life sentence or life without the possibility of parole.

Slayer Statute
The passage of SB 489 and HB 1211, known as the Slayer Statute and the Ann Sue Metz law, prevents a person who feloniously and intentionally kills, conspires to kill, or procures the killing of another person from benefitting from their victim’s death by Will or intestacy.  The law becomes effective for anyone who dies on or after October 1, 2013.

Named after a girl who committed suicide because of prolonged harassment over the internet, Grace’s Law (HB 396) prohibits the use of an interactive computer service to inflict serious emotional distress on a minor.  The legislation defines “interactive computer service” to mean an information or access software provider that provides computer access to a server by multiple users.  Individuals who violate this law may be subject to imprisonment for one year and/or $500 fine.

Medical Marijuana
HB 1101 allows for the trial use of marijuana for medical reasons through academic medical centers.  Similar legislation such as HB1100 and HB 302, which would have authorized more widespread use of medical marijuana, and SB 297, which would have changed possession of less than 10 grams of marijuana to a civil fine of $100, did not pass.

Wind Energy
Starting in 2017, The Maryland Offshore Wind Energy Act of 2013 (HB 226, Ch. 3) requires electricity providers to include 2.5% of energy generated by wind as part of their gross sales.  The bill also establishes the Maryland Offshore Wind Business Development Fund and the Maryland Offshore Wind Advisory Committee, which will promote emerging offshore wind businesses, and the Clean Energy Program Task Force and the Clean Energy Technical Education Task Force, which will study and make recommendations on program offerings in the clean energy field in Maryland universities and community colleges.

The passage of SB 279 and HB 224 improves access to voting.  The legislation increases the number of early voting centers throughout the state, allows voters to change their registration during early voting while still maintaining their ability to vote early, provides for absentee ballots to be obtained online, and allows voters to change their information online while still allowing voters to participate in early voting.

Gas Tax
The Transportation Infrastructure Investment Act of 2013 increases the motor fuel tax rate by the rate of inflation to the nearest tenth of one cent.  The increase will take place on July 1st of each year.  The legislation also requires the Maryland Transit Administration to increase fares every two years based on the Consumer Price Index, rounded to the nearest 10 cents.

Cell Phones in Motor Vehicles
Prior to the legislative session, secondary enforcement of motor vehicles included prohibitions on use of a cell phone by a minor while operating a motor vehicle, use of a cell phone by an adult on a provisional license or learner’s permit while operating a vehicle, use of a cell phone by a driver of an occupied school vehicle, and use of a cell phone by a fully licensed adult while operating a vehicle in motion.  Following the passing of SB 339 and HB 753, those offenses become primary enforcement prohibitions.  The legislation also increases the associated fines, setting a maximum penalty of $175 for a third or subsequent offense.

Monday, April 22, 2013

Court of Special Appeals Makes A Splash in Child Safety Laws

The Maryland Court of Special Appeals recently made a splash in what plaintiffs’ attorneys are calling an important victory for child safety. In a case where 3 year old Christopher Clinton Paul suffered severe brain damage after nearly drowning in an apartment complex’s pool, the court has ruled that the toddler’s mother can sue the owners of the apartment complex and company overseeing the pool for not maintaining the fence around the pool. The incident occurred in June 2010, when the toddler allegedly got through the fence, which had holes and gaps large enough for a toddler to easily pass through. The incident left the toddler unable to speak or control his limbs and dependent on a feeding tube.

The decision reverses Montgomery County Circuit Court Judge Louise Scrivener’s ruling that the child was a trespasser because the pool was not yet open for the day, and that because it could not be determined how the child entered the pool area, the apartment complex could not be held liable. The Court of Special Appeals found that state and county safety regulations create a duty to the child. The court also found that the child’s mode of entry could be shown through circumstantial evidence. The court, also, rejected the apartment complex’s argument that because the pool and surrounding fence were constructed before 1978 when the current provisions were in place, that they were grandfathered in with prior ones.

The Court, in the opinion written by Judge Shirley M. Watts, ruled that the grandfathering provisions were limited and (similar to lead paint cases in Baltimore City) did not apply to a pool with a condition “that jeopardizes the health or safety of the public.” The apartment complex, therefore, had a duty “to comply with the regulations and code provisions relevant to public swimming pools, in general, and pool barriers, in particular.” The court was convinced that the regulations “were designed to create a cause of action in tort for the protection of the swimming pools.”

The attorneys for the apartment complex declined to comment on the courts ruling. The attorneys for Paul, however, called the court’s decision “an important victory for pool safety.” Other members of the plaintiff’s bar (not involved in the case) have also praised the court’s decision, seeing it as a way to hold landlords responsible for their negligence. They specifically pointed out the significance of the state and county regulations being applied against a landlord for the first time in an area other than Baltimore City lead paint cases.

Tuesday, April 16, 2013

No Expert, No Problem

         In Ross v. Housing Authority of Baltimore City, CA No. 10, a case decided on March 22, 2013, the Maryland Court of Appeals held that expert testimony is not necessary in establishing the source of exposure in lead paint poisoning cases.  Instead, circumstantial evidence can be used in proving the source of lead paint exposure. 

           In 2008, the Plaintiff, Cherie Ross brought two lawsuits against the owners of her two child-hood homes.  These suits alleged negligence and unfair trade practices under the Consumer Protection Act and were brought against Bernard Dackman and the Housing Authority of Baltimore City (HABC).  In 2010, Ross settled her lawsuit against Dackman.  

            The case at hand arises out of Ross’ suit against the Defendant, the HABC.  In her lawsuit, Ross alleges that exposure to lead paint and dust in her child-hood home owned by the HABC ultimately resulted in her suffering from brain damage caused by lead paint poisoning. 
            Prior to this case reaching the Court of Appeals, a Baltimore judge ruled in favor of the HABC after excluding the expert testimony from Ross’ only expert witness.  The Court of Special Appeals affirmed the lower courts decision to exclude the testimony of Ross’ expert witness.  Although the Court of Appeals concluded that the lower courts had discretion to exclude expert testimony on the source of the lead paint exposure, it remanded this case to the Circuit Court for Baltimore City to reconsider in light of its holding that expert testimony is not necessary and lead paint exposure can be established through circumstantial evidence.

                Ultimately, Ross’ recovery is contingent on how the  Circuit Court for Baltimore City rules, however, regardless of the outcome of Ross’ case expert testimony is no longer needed to prove lead paint poisoning.

Tuesday, April 9, 2013

The More Judges the Merrier

The House of Delegates and the Senate approved Senate Bill 239 and House Bill 83 127-6 in February, proposing to add two judges to Maryland’s Court of Special Appeals. Currently there are 13 members of the intermediate appellate court. Chief Judge Peter B. Krauser has stated that these members “have a daunting caseload.” Krauser believes that the increase of judges will place the court in a “better position to handle [the] caseload.”

The appellate court has had 13 judges since 1977, and the caseload has increased from 115 to 157 cases per year. The approved measure will also add one judge to each Circuit Court in Calvert, Carroll, Cecil, Frederick and Wicomico counties. In addition, the same bill will add four judges to Maryland’s District Court, one each in Montgomery, Prince Georges, Charles County and Baltimore City. If Gov. Martin O’Malley signs this measure, the law will go into effect on July 1, 2013. 

Friday, April 5, 2013

The Court of Appeals Hears Dram Shop Case

The Court of Appeals is reviewing Maryland’s Dram Shop Rule for the first time in 32 years. Under the current precedent, establishments that sell alcohol are immune from liability for damages caused by their drunk customers after they leave. In the 32 years since this issue was last addressed, however, society’s understanding and perception of driving under the influence of alcohol has drastically changed. Those changes are apparent by the increased penalties for such offenses. Yet, the rule granting bars immunity has not changed. The Maryland General Assembly attempted to alter the rule legislatively to match changed opinions, but failed to pass legislation in both 2011 and 2012.  Delegate Luiz R.S. Simmons has deemed the effort of passing legislation “a lost cause,” pointing the finger at the strong lobbying power of bars and other alcohol retailers for preventing any legislation to pass. Such circumstances leave the Court as the last hope for dram shop liability.
The Court has undertaken the review of the Dram Shop Rule in the case of  Warr v. JMGM Group, LLC, d/b/a Dogfish Head Alehouse. The case stems from events that occurred on August 28, 2008. On that night, Michael Eaton crashed into William and Angela Warr’s Jeep.  Eaton was driving his Land Rover at speeds of 100 miles per hour.  In the accident, Mr. Warr’s granddaughter Jazimen was killed. Mr. and Mrs. Warr, and their other granddaughter, Cortavia Harris, were also seriously injured. After the collision, Mr. Eaton drove 1000 feet beyond where the accident took place and dialed 911 to report that he had hurt his arm in an accident. He did not mention any other injuries before ending the call and driving away. In 2009, Mr. Eaton was convicted of vehicular manslaughter and leaving the scene of an accident involving injury. He was sentenced to 20 years in prison, with 12 years suspended, and five years’ supervised probation.
The Warr’s sued Dogfish Head Alehouse, the bar where Mr. Eaton was drinking, for negligence. In the suit, the Warr’s allege that the bar negligently sold alcohol to Michael Eaton when he was already intoxicated. They further alleged that the bar sold Mr. Eaton about 20 drinks over a six hour period. At some point employees of Dogfish Head Alehouse, allegedly, refused to serve Mr. Eaton after he became aggressive and violent.  But they did not stop Mr. Eaton from driving away from the bar when they knew he was drunk. Montgomery Circuit Court Judge Eric M. Johnson rejected the bar’s motion to dismiss, holding that perhaps it was time to review bars’ liability for damage done by their drunk customers. Bound by the Court of Appeals’ precedent, Judge Johnson ultimately granted summary judgment for Dogfish Head Alehouse. The Warr’s appeal of that decision was heard by the Court of Appeals.
Overturning the precedent would be a drastic change from the immunity bars have relied on in the past. The Dogfish Head Alehouse’s attorney, Robert B. Hetherington, urged the Court to maintain the current precedent, and suggested that such a sweeping change in public policy should be left to the legislature. But with the failure of the Legislature to pass such measures, we now wait for the Court’s decision.