Tuesday, December 23, 2014

Ho Ho Holiday Litigation: An Unfortunate But Familiar Matter

Christmas is a time for giving, for kissing under mistletoe, for roasting chestnuts on the open fire, and for peace and harmony.  But, is it also a time for lawsuits?  As anyone who works in the legal profession is aware, the answer to that question is an unfortunate, and resounding, yes. 

An online search of nationwide state appellate cases with the term “Christmas” in the court’s opinion yields well over 10,000 results.  In addition, the number of cases involving Christmas has precipitously increased over the past 218 years.  Between 1786 and 1886, only 943 appellate courts made any reference to Christmas in their opinions.  Between 1886 and 1986, that number jumped to 14,901.  But these numbers are dwarfed by the number of reported “Christmas cases” over just the past 18 years: from 1986 and 2014, over 22,000 cases have had something to do with Christmas.  While many of these cases involve someone or something with the name Christmas—a surname or street name, for instance—they do not represent the majority.      

And it is not just Christmas that gets significant press in legal opinions.  Subjects that we ordinarily associate with Christmas appear frequently as well.  Santa Claus is an oft-cited topic, appearing in no less than 28 state appellate opinions in the past 200 years.  One example is Santa Clause, Inc. v. Santa Clause of Santa Clause, Inc., 217 Ind. 251, 27 N.E.2d 354, 358 (1940), a case from the Indiana Supreme Court.  In Santa Clause, Inc., the plaintiff, Santa Clause, Inc., leased real property in the Town of Santa Clause from the property’s owners, the Reinkes, and was given the exclusive right during the term of the lease to “to conduct on said real estate any and all business having any relation to the Santa Claus idea, such as manufacturing and selling of toys and each and every article, item or thing having any relation to, connection with, or spirit of Santa Claus in the latter's traditional and commercial relation to Christmas time.”  After the lease was signed, the Reinkes made the unfortunate (and rather odd) decision of selling their property to a second Santa Clause, Inc., which had the intention of also manufacturing and selling children’s toys on the property in Santa Clause, Indiana.  When the second Santa Clause, Inc. (“Santa Clause 2”) threatened to build structures on the purchased property, thus affecting the exclusive lease rights of the first Santa Clause, Inc. (“Santa Clause 1”), Santa Clause 1 sued Santa Clause 2, claiming, among other damages, expected lost profits.  The Court, while astonishingly stating that it was “…not concerned about the similarity in names of the various parties…[,]” ruled in favor of Santa Clause 1, finding that Santa Clause 2 was wrongfully withholding its right to possession.  Id. at 356-57.  At the same time, the Court, clearly without any Christmas spirit, found that a judgment of $5,000.00 in lost profits that had been awarded to Santa Clause 1 should be reversed, finding that it was “too speculative to form a legal basis for an award of damages.” Id. 

Christmas lights are another seasonal theme from which contentious litigation often arises.  In the last 10 years alone, no less than 83 state appellate decisions have involved Christmas lights in some capacity.  Among them is MacLacklin v. Karmazin, 2005 Phil. Ct. Com. Pl. LEXIS 293 (June 23, 2005), a case involving a plaintiff’s contributory negligence, but with a Christmas twist.  In that case, Mr. and Mrs. MacLacklin sued Dr. Nelly Karmazin, after the MacLackin’s vehicle struck Dr. Karmazin’s vehicle, which had negligently stopped in the middle of an intersection that had no traffic signal requiring her to stop.  The jury concluded that Mr. MacLackin was not entitled to recover, in part, because he was looking at Christmas lights rather than the intersection at the time of the collision.  Id. at *11-*12.  The Court of Common Pleas upheld the jury’s verdict, finding that the jury had rightfully credited Mr. MacLackin’s own testimony that he was “not really concerned about [looking to his] left or right …[,]” since he was “more focused on pointing out Christmas lights than watching the approaching intersection.”  Id. at *12. 

Maryland is notable for its dearth of Christmas-themed cases.1  The case of Velte v. Nichols, 211 Md. 353, 127 A.2d 544 (1956) provides a rare exception.  In Velte, the plaintiff, Vernon Velte, went to a store owned by the defendants, the Nichols, to purchase 50-100 bundles of Christmas trees that he intended to resell.  The proprietor of the Nichols’ store told Velte that he was welcome to go to the back of the store and examine the trees himself, taking whatever he wanted.  In order to view the trees, which were situated in a truck, Velte climbed a 6 foot ladder that was leaning up against the trunks of the Christmas trees.  He failed to examine the ladder before climbing it, however.  Even more imprudently, Velte placed both of his feet on the ladder’s top wrung in order to get a better view of his expected Christmas bounty.  Unbeknownst to Velte, however, the ladder was situated on a sheet of ice covered with pine needles, and as he reached the top rung of the ladder it slipped out from under him.  Although Velte tried to stop himself from falling by grabbing at the trees, the spirit of Christmas was clearly not with him, as his hands slipped on the ice and sap covering the trees, causing him to plummet to the earth.  Velte sued the Nichols, claiming, among other things, that they had a duty to warn him about the unsafe, icy conditions under the ladder. 

After the jury entered a verdict for the defendants at trial, Velte appealed.  But the Court of Appeals of Maryland affirmed the verdict, concluding that the evidence, even when viewed in a light most favorable to Velte, showed that he assumed the risk of climbing a ladder situated precariously against Christmas trees.  Velte, 211 Md. at 356, 127 A.2d at 546.  In so ruling, the Court observed that “[t]he inherent danger that the foot of the ladder might slip, when it is leaning against […] the trunk of trees, was as apparent to the plaintiff as it could have been to the defendants.  Yet the plaintiff did not test the stability of the ladder but on his own statement mounted it to the very top, without inspection.”  Id.  The Court went on to conclude that not only had Velte assumed the risk of sustaining injury, he was also contributory negligent as a matter of law, since “[p]ermission to enter the truck by means of the ladder, as an alternative to having the trees brought down, seems to us a far cry from representation that the ladder was then in a position where it could be safely mounted to the top rung without slipping […][t]he proprietors of the store might properly assume that the permittee would use reasonable means to ascertain that the ladder was securely planted before it was ascended.”  Id.

So, what is the lesson to be taken from MacLacklin, Velte, and the countless other Christmas cases?  Maybe it is that we should exercise a heightened standard of care during this time of year, particularly when viewing the appurtenances of Christmas, or any other holiday for that matter.  And, we at Rollins, Smalkin, Richards & Mackie, L.L.C. wish everyone a safe, and, more importantly, a happy holiday season. 

While this statement is seemingly contradicted by the case captioned In re Christmas, 102 B.R. 447 (Bankr. D.Md. 1989), unfortunately, that case involves the disputed bankruptcy of William G. Christmas and not the Christmas holiday.

Contributed by Sean V. Werner

Wednesday, December 17, 2014

Five RSRM attorneys featured in Maryland "Super Lawyers"

RSRM is proud to announce that five of its attorneys have been selected for inclusion in the 2015 Maryland "Super Lawyers" issue.

Partner James P. O'Meara, was selected as a Super Lawyer in the area of civil litigation defense for the fourth consecutive year. Partner, Paul G. Donoghue, was selected as a Super Lawyer in the area of workers' compensation defense for the third consecutive year. Partner, Andrew T. Nichols, was selected as a Rising Star in the area of general litigation for the fourth consecutive year. Additionally, Associates Tara A. Barnes and Jessica P. Butkera were selected as Rising Stars in the area of general litigation. 

Inclusion as a Super Lawyer or Rising Star is an outstanding achievement.  Super Lawyers selects attorneys using a rigorous, multi-phase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on twelve indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Approximately five percent (5%) of nominees are selected as "Super Lawyers" and approximately two-and-a-half percent (2.5%) of nominees are selected as "Rising Stars."

Congratulations to our Super Lawyers and Rising Stars!


Wednesday, December 10, 2014

RSRM Welcomes Sean V. Werner, Esq.

On December 8, 2014, Sean v. Werner joined Rollins, Smalkin, Richards & Mackie, L.L.C. as an Associate.  The focus of his practice is civil litigation, including cases involving serious personal injury (prosecution and defense), premises liability, landlord and tenant disputes, debt collection litigation, and workers' compensation. 

Prior to joining the firm, Mr. Werner represented clients in a wide range of practice areas for over ten years.  In his previous position, Mr. Werner tried several civil cases in Maryland and the District of Columbia, represented claimants and employers before the Maryland Workers' Compensation Commission, and successfully argued various issues before appellate courts in both Maryland and the District of Columbia. 

Mr. Werner received his law degree from American University, Washington College of Law, and is a member of the Maryland State Bar Association, the District of Columbia Bar Association, the Prince George’s County Bar Association, the Defense Research Institute, and Maryland Defense Counsel.  

Mr. Werner maintains an active pro bono practice, having represented clients affiliated with AARP and other organizations whose aim is to bring legal assistance to people of limited means. He also volunteers as President of the Wheaton Towne Condominium Association in Silver Spring, Maryland.  Mr. Werner's hobbies include running and amateur astronomy. 

Monday, December 1, 2014

A Picture Is Still Worth A Thousand Words: Contradicting Evidence Won’t Always Mean a Trial

In the recent case of Hall v. Washington Metropolitan Area Transit Authority, 2014 WL 3746483, Plaintiff Tonya Hall (“Hall”) brought suit again the Washington Metropolitan Area Transit Authority (“WMATA”) alleging negligence arising out of an incident in which she was a passenger on a bus operated by WMATA.  Specifically, Hall claimed that as she was exiting a bus, the driver closed the door on her in a negligent fashion such that it pushed her forward, causing her to fall and ultimately sustain injury. 

After exchanging some discovery, WMATA filed a motion for summary judgment.  Generally, a motion for summary judgment is appropriate where there is no genuine dispute as to the facts of the case; therefore, a judge can make a ruling by applying those undisputed facts to the law as it exists. 

In its motion, WMATA submitted a video of the incident that had been retrieved from the bus DVR system.  WMATA argued that the video, which was certified by affidavit to be authentic and accurate, showed Hall’s foot catching as she stepped from the bus which caused her to trip and fall, without any negligence whatsoever on the part of the driver. 

This video directly contradicted the assertions of Plaintiff Hall – both in her Complaint and in her version of the events through her Answers to Interrogatories and deposition testimony.  While summary judgment often is not appropriate where there are disputes regarding the facts of the case, as in virtually every area of the law there are exceptions. 

The United States Supreme Court has previously stated that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purpose of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).  That is, when there is evidence, like video footage, that is not open to multiple interpretations, and it contradicts assertions based on personal perception, the court will accept “the facts in the light depicted by the videotape.” Id. at 381.   
In this case, the authenticity of the video was not challenged and the Judge determined that the only credible interpretation of the video was that Hall fell prior to reaching the closing doors and, therefore, could not have been pushed by their closing.  Specifically, the Judge opined:

 “[T]he video clearly depicts Hall…falling prior to reaching the doors, which already were closing…They did not close on Hall or immediately behind her as she was standing in the doorway.  Nor did they cause her to fall…[I]t is not clear from the video whether Plaintiff tripped…[b]ut whether Plaintiff tripped is not a material fact: Plaintiff based her negligence claim on the allegation that Defendant shut its doors on her, causing her to fall […][t]hus the material fact is whether the bus doors shut on Plaintiff and caused her fall.”

Hall v. Washington Metro. Area Transit Auth., No. PWG-13-937, 2014 WL 3746483, at *3 (D. Md. July 30, 2014).

Accordingly, the Judge determined that the material fact at issue was whether the bus doors closed on Hall and caused her to fall. He found that in light of the video evidence Hall’s version of events held no believability and he granted WMATA’s motion.

Though this is not the first time the courts have relied on video evidence to dispose of a case before it reaches the trial stage, it is a reminder that when there exists evidence that clearly discredits one party’s portrayal of the facts, it is not always necessary to proceed with the time and expense associated with having a jury decide the matter. At RSRM, we understand the importance of resolving cases in a manner that is the most beneficial to our clients.  In an age where security, traffic and cell phone cameras are everywhere, we work to investigate matters quickly to preserve evidence, so that it can be used to aid in reaching a quick and efficient resolution of claims and cases.  

Contributed by Lauren Seldomridge

Wednesday, November 5, 2014

Success for RSRM Partner Andy Nichols in Premises Liability Action

Recently, RSRM Partner Andy Nichols, successfully had summary judgment granted on behalf of his clients in a case pending in Worcester County, Maryland. 

Plaintiff alleged that she was an invitee at a condominium complex in Ocean City, Maryland, a status that was heavily disputed by all of the Defendants.  While climbing down a set of stairs between the ground level and the second floor, Plaintiff tripped on the stairs which she alleged were defectively designed and constructed.  Specifically, she alleged she grabbed the railing to stop herself from falling and, when she did, the railing gave way, causing her to fall to the ground one story below.  Plaintiff’s injuries included paralysis from the waist down. 

Plaintiff filed suit against the condominium property as well as all of the individual unit owners.  Counsel for all of the individual unit owners, through combined efforts in discovery, including depositions of each unit owner and the Plaintiff, were able to lay the ground work for Defendants to file for summary judgment. 

Collectively, Defendants argued that, pursuant to the Maryland Condominium Act, as individual unit owners they did not owe a duty to the Plaintiff.  Maryland law states that when a council of unit owners exists as a legal entity, whether it is incorporated or not, the council of unit owners as an entity is responsible for repairing and maintaining common areas on the property, not the individual unit owners.  The Defendants further argued that pursuant to the Courts & Judicial Proceedings Article of the Maryland Code, the individual unit owners were essentially immune from liability. 

The Court agreed with these arguments, and granted summary judgment on behalf of all of the individual unit owners, including the two unit owners represented by RSRM. Congratulations to Mr. Nichols.  

Tuesday, November 4, 2014

Court Clarifies Expert Witness Parameters in Lead Paint Cases

The case of Roy v. Dackman, 2014 Md. App. LEXIS 116 (2014) stems from a lead paint action filed by the Roy family based on the alleged lead poisoning of Plaintiff Jakeem Roy (“Roy”) while the family resided at a home located on Oswego Avenue from May of 1997 to November of 1998. According to blood tests on September 17, 1997, Jakeem Roy tested positive for lead poisoning before the age of two. Subsequently, Roy filed a complaint against the owners of the row house where he lived as an infant.  Roy alleged that Elliot Dackman (“Dackman”), the owner of the row home, failed to comply with rules, regulations, and ordinances of the State of Maryland and the City of Baltimore that prohibit flaking, loose or peeling paint, use of paint with lead pigment, and rental of dwellings that contain flaking, loose or peeling paint. At the Circuit Court level, Plaintiffs did not successfully demonstrate that Roy’s lead poisoning was caused by the paint in the row home on Oswego Avenue. The trial court granted summary judgment in favor of the defense, which was affirmed by the Court of Special Appeals.

At the trial court level, the Plaintiff attempted to show that the Oswego Avenue row home was the cause of Roy’s lead poisoning based on the testimony of his pediatrician. The trial court excluded the testimony of Roy’s pediatrician, which resulted in the Plaintiff's inability to demonstrate a causal connection between Roy’s lead poisoning and the row home. The Court of Special Appeals found that it was appropriate to exclude the testimony of the pediatrician because he was not an expert in the field of lead paint poisoning. Without a medical expert, the Plaintiff’s secondarily argued that the cause of the lead paint poisoning could be shown through circumstantial, or indirect, evidence. The Court of Special Appeals disagreed with this argument as well.

The theory of causation in lead paint requires three things. First, the plaintiff must show a link between the defendant’s property and plaintiff’s exposure to lead. In order to do so, the plaintiff must provide facts and direct evidence about the link so that the evidence amounts to a reasonable probability, more than just a possibility. Second, the plaintiff must demonstrate a link between specific exposure to lead and the injuries allegedly suffered by plaintiff. The third element requires that the plaintiff demonstrate a link between the blood lead levels and the injuries allegedly suffered by plaintiff. This final link is where expert testimony is imperative. In the Roy case, the intermediate appellate court affirmed that the pediatrician was not an expert because he did not have any more than a “casual familiarity” with lead poisoning.

The Roy case stands for two separate principles: (1) the importance of expert designations in lead paint cases; and (2) the importance of expert testimony to prove a plaintiff’s damages, and the causal connection, in a negligence action. It is important to research an expert to ensure that he or she has the requisite background in a topic to withstand pre-trial motions. It is also important to research opposing counsel’s bases for causation, including any causation experts, to determine whether the proposed expert meets the threshold for qualification.

At RSRM, Partner Dennis Whelley is our resident expert attorney on the handling of lead paint litigation.  Should questions arise regarding lead paint matters, please feel free to contact him.  

Tuesday, October 14, 2014

Maryland "Move Over" Law Expands

October 1st marked the first day of the new changes to the Maryland “move over” law. The law requires drivers approaching emergency vehicles on the highway to move over, if possible, at least one extra lane from those vehicles. If it is not possible for the driver to move an extra lane over, they are required to slow down at least 10 miles below the posted speed limit.

The law was initially passed in 2010 but only applied to fire and police vehicles. As of October 1st of this year, the law has been expanded to apply to: vehicles of federal, state, or local law enforcement agencies; vehicles of volunteer fire companies, rescue squads, fire departments, the Maryland Institute for Emergency Medical Services Systems, and the Maryland Fire and Rescue Institute; State vehicles used in response to oil or hazardous materials spills; State vehicles designated for emergency use by the Commissioner of Correction; ambulances; special vehicles funded or provided by federal, state, or local government and used for emergency or rescue purposes in Maryland; and importantly, tow trucks.

Tow trucks were added after legislators realized tow truck operators were in just as much danger as law enforcement and first responders. From January 2000 until December 31, 2005, approximately 130 tow truck operators in the U.S. were killed from tow-related incidents or accidents. Of those killed, most were involved in service activities on the highway.

The law was put in place to protect the emergency vehicle operators and responders and those violating it will pay the price. A simple violation of the move over law is a primary offense with a fine of $110.00 and one point placed on the driver’s license. If the driver’s violation of the law contributes to a traffic crash, the fine is bumped up to $150.00 and three points, and if the violation contributes to a traffic crash resulting in death or serious injury, the fine is $750.00 and three points.  Police officers are not taking ignorance of the law as an excuse. The Maryland Transportation Authority specifically put more officers on Interstate 95 to send the message to drivers to move over.

In Maryland, violation of a law does not itself constitute conclusive negligence.  However, the violation of a statute, if it causes or contributes to an accident or injuries, will constitute enough evidence of negligence that the burden will then shift to the defendant to justify the violation.  Because tow trucks might not intuitively be placed in the same category as police, firefighters and ambulances, it is important to note and be aware of this change and the impact it may have on auto tort cases. 

Monday, September 29, 2014

Judgment Notwithstanding the Verdict Granted In Nuisance Case

“Drive-in movie theaters, like soda fountains, juke boxes, and The Platters, are instances of 1950s post-war Americana that trigger instant feelings of nostalgia. Maryland once boasted as many as 47 drive-ins; today, however, only Bengies Drive–In Movie Theatre…remains.”
            Blue Ink, Ltd. v. Two Farms, Inc., 96 A.3d 810 (Md. Ct. Spec. App. 2014)

So begins the opinion of the Court of Special Appeals that, in its recent decision may have been nostalgic for the past but ultimately determined that the private nuisance standards in Maryland do not serve as tutelary to a fading era for entertainment. 

Some history regarding how both Bengies and Royal Farms came to exist in this geographical area is helpful in understanding how this lawsuit came about.  Bengies Drive-In Movie Theatre is a family-owned and operated business that was begun by three brothers in the late 1950’s.  In 2000, D. Edward Vogel, son of one of the original brothers began operating the drive-in. 

In 2004, to facilitate an intra-family transfer of ownership, Bengies entered into a Restrictive Covenant with the area community group wherein Bengies agreed to limit future expansions on their property in exchange for the community group foregoing opposition to a zoning reclassification necessary for the property transfer  (from parent to son) to occur.    

However, in 2003, prior to Bengies entry into the Restrictive Covenant, the owner of a property across the street from Bengies sought a special exception to the current zoning to construct a service station, carryout restaurant and car wash.  The Zoning Commissioner ultimately granted the petition subject to the submission of a plan for review and approval by Baltimore County that would set forth proposed landscape and lighting of the new business such that the plans had sufficient screening to avoid light pollution to the Bengies environment.

This arrangement appeared sufficient based on the acts of the parties that followed, including entry into the Restrictive Covenant by Bengies, and the official transfer of property from parent to son in December of 2007.  In October of 2008, the lighting plans for the new business werewere approved and subsequently, a Royal Farms service station opened across the street from Bengies in December of 2008. 

However, the bliss of being able to purchase crispy, delicious fried chicken prior to driving across the street to catch a flick was short-lived.  In June of 2010, after making complaints to Code Enforcement to no avail, Bengies Drive-In brought a nuisance action against a nearby Royal Farms location whose lighting, Bengies alleged, encroached on Bengie’s property and interfered with movie screenings. 

The nuisance claim went to a jury who ultimately awarded Bengies over $800,000.00  for use to construct a fence to block the light.  Upon the request of Royal Farms, the circuit court granted a Motion for Judgment Notwithstanding the Verdict (“JNOV”), and set aside the judgment in favor of Bengies. 

JNOV is a rarely granted request.  Essentially it operates as a way for a judge to set aside a determination of the jury where the judge determines that no reasonable jury could have reached such a verdict given the application of the facts, as they were shown at trial, to the law that exists.   Here, the Court, perhaps finding that the jury’s love for the last iconic drive-in in Maryland outweighed their logic and fact-finding ability, granted JNOV and set aside the judgment.  Bengies appealed.

In its consideration of the case, the Court of Special Appeals noted that, while there is no requirement of physical injury from a nuisance, a plaintiff must show that the defendant’s interference with the plaintiff’s property rights is both unreasonable and substantial in order to recover. Blue Ink, Ltd. v. Two Farms, Inc., 96 A.3d 810 (Md. Ct. Spec. App. 2014).  Further, “[t]he nuisance must, in the judgment of reasonable individuals, create a condition that is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits and, in light of the circumstances, is unreasonable and in derogation of the rights of the party. Id. (internal quotation marks and citation omitted).  Thus, a two-step analysis was used to determine whether or not a private nuisance existed in this case, looking first at whether the Defendant’s activity created an unreasonable and substantial interference and second, whether the Plaintiff’s harm was objectively reasonable.

In reviewing the facts that were brought forth at trial, the Court of Special Appeals noted that there was little objective evidence presented regarding the intrusion, or lack thereof, of Royal Farms’ lights upon the drive-in.  The lights were not directed at the drive-in, and there was no testimony that the lights were unreasonable based on location.  While Bengies did establish that the drive-in is uniquely sensitive to the light, the Court noted that a private nuisance action cannot be maintained solely based upon special sensitivities.  See Schuman v. Greenbelt Homes, Inc., 212 Md. App. 451, 456, 69 A.3d 512, 521-22 (2013).  Thus, under the objective test, because there was no evidence to support a conclusion that light from Royal Farms would constitute a nuisance to an ordinary person or entity any more than commonplace light would to an ordinary person, it was correct for the lower court to find that the lights were not unreasonable and substantial, and the granting of JNOV by the lower court was affirmed. 

Generally this case provides a succinct restatement of the law of private nuisances and reminds us that, on the whole, in a private nuisance light action, if the light from adjacent land is not strong enough to seriously disturb the sensibilities of a common person then there is no nuisance.  

Contributed by Lauren Seldomridge

Thursday, September 18, 2014

RSRM Welcomes Patrick Flores, Esq.

Patrick Flores joined Rollins, Smalkin Richards & Mackie, L.L.C. as an associate in during August of 2014.  Mr.  Flores primarily practices in the areas of insurance defense involving personal injury, premises liability, automobile accidents, as well as creditor’s rights. 

Prior to joining the firm, Mr. Flores was an associate at Bacon, Thornton & Palmer, L.L.P., litigating personal and civil actions throughout Maryland.  He also had clerkships with Freeman & Freeman, P.C., the Department of Justice - Criminal Division/Terrorism and Violent Crimes, and the U.S. Court of Appeals for the Federal Circuit.

He received his law degree from The University of Maryland School of Law, where he served as a staff editor for the Business Lawyer and the Journal of Business and Technology. 

Mr. Flores is a member of the American Bar Association, Maryland State Bar Association, the District of Columbia Bar, and the Montgomery County Bar Association.

During the summer months, Mr. Flores enjoys running in local race events, and in the winter he likes to snowboard.  He composes music on the piano and the Spanish guitar and enjoys outdoor activities with his wife and son.

Tuesday, September 9, 2014

Sometimes A Simple Car Accident Can Be More Than You Bargain For

We see it every day: an insured driver is deemed liable for a motor vehicle accident. There is a standard claim as the injured party seeks compensation for their bodily injuries and damages related to the accident. Typical case and review, right? Generally, yes – unless you also consider the potential wrongful death action that may arise from the injured party’s subsequent suicide, allegedly committed during insanity or delirium caused by the defendant’s negligent conduct. If this seems like a stretch, one should consider the holding in the United States District Court for the District of Maryland, in the case of Young v. Swiney. 2014 U.S. Dist. LEXIS 74445 (2014).


The underlying accident in Young occurred on June 16, 2010. Decedent Joseph Young was operating a pick-up truck in Cecil County, Maryland.   Young was a forty-three (43) year old married father of two (2) teenage girls, employed as a carpenter and millwright.  On the same date and time, Donn Swiney was operating an eighteen wheel tractor trailer owned by his employer, Industrial Transport Services, LLC. Investigation revealed Swiney was operating the tractor trailer at a high rate of speed and collided with the rear of Young’s pick-up truck, causing a chain reaction collision. Young complained of several injuries at the scene of accident before losing consciousness. He was extracted from the vehicle and transported to the hospital.

By all accounts, Young’s life took a significant downward spiral after the accident.  Given his injuries, he was unable to return to work and was subsequently terminated in December, 2010.  He underwent surgery on his elbow and spine in 2011; however, being unemployed, he then lost his medical insurance in March, 2012.  Without health insurance, Young was unable to obtain the required physical therapy to rehabilitate his cervical spine.  The lack of insurance became increasingly problematic, and a neurosurgeon recommended surgery to his neck and upper back in August, 2012.  Young’s employment prospects were also dim, as a vocational assessment revealed that he was unable to return to his previous employer, and that he had significant physical limitations, pain and depression. These factors, coupled with his lack of a high school diploma, made him a poor candidate to return to work.

In addition to his health and financial setbacks, Young faced additional personal challenges.  His family members described a complete personality shift after the accident, noting he was unable to control his anger, frequently argued with his wife over money, and yelled at his children.  This ultimately resulted in his wife and daughters leaving him and moving to Florida.

Young sought mental health treatment with Dr. Janet Anderson, Ph.D.  in May, 2012.  During this visit, Young described the significant pain he encountered since the accident, feeling suicidal, depressed, being unable to control his temper and behavior, and the detrimental impact of the accident on his entire family. Dr. Anderson strongly recommended Young obtain psychotherapy for suicidal depression.

After a family visit on September 6, 2012, Young and one of his daughters were involved in a serious verbal altercation that resulted in the police responding to his home.   Later that evening after his family left, Young committed suicide by ingesting alcohol, Flexeril and Tramadol.  Young left a suicide note and referred to himself as a “loser”. 

Young’s widow brought suit against Swiney and his employer, individually, as Personal Representative of his Estate, and as parents to the two (2) minor daughters.  Dr. Janet Anderson served as Plaintiff’s expert witness and concluded that Young’s suicide was directly and proximately caused by the psychosis he sustained as a result of the automobile accident.  Dr. Anderson’s opinion was based on a series of information including the autopsy report, depositions, police reports, meetings with Young and his family, as well as her training and experience in this field.

The Defense filed a Motion for Summary Judgment of the wrongful death claims arguing that the motor vehicle accident in June, 2010 was not the proximate cause of Young’s suicide in September, 2012, and challenging Dr. Anderson’s opinions as unreliable, lacking foundation,  not the product of any reliable methodology, and not based on sufficient facts or data.

Courts have long held that a Judge makes any preliminary determination regarding the admissibility of evidence, including expert opinions and qualifications.  In denying the Defendant’s motion, the Court relied on two (2) cases.  In 2005, the Court of Special Appeals of Maryland held that suicide may be grounds for damages based on the negligence of another if  the negligent conduct causes the decedent’s insanity, delirium or uncontrollable impulse to commit suicide. Sindler v. Litman, 166 Md. App. 90, 877 A.2d 97 (2005).  Plaintiff’s expert provided such an opinion in this case.  Here, the Court found that the Plaintiff produced enough evidence to create a jury question on the expert opinion in question, such that a Motion for Summary Judgment should be denied. 

The Court also applied the Daubert standard in evaluating Dr. Anderson’s proffered expert testimony.  This evaluation includes an analysis of: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific communityDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579  (1994). 

By applying Sindler and Daubert, the Court concluded that this issue be tried before a jury with expert testimony. The Court also noted that the Defense pointed to several issues that may be raised in a vigorous cross examination of Plaintiff’s expert, as opposed to bases for summary judgment.

The lesson to take away from Swiney, is that a routine motor vehicle accident may have significantly more implications beyond bodily injuries, property damages, and lost wages.  A claim may be made that an insured’s negligent conduct resulted in an injured party’s insanity or delirium, causing that person to commit suicide.  Considering the Court’s decision in Swiney¸ with sufficient evidence to support this opinion, it is still a question for a jury to decide.  

Article submitted by Tara A. Barnes 

Monday, August 4, 2014

Pain and Suffering Award Not Excluded from Workers’ Compensation Lien

In George Tenley v. Manufacturers Alliance Co., et al., 2013 No. 0089 (Md. Ct. Spec. App. March 31, 2014), an unreported decision from the Court of Special Appeals of Maryland, a dispute arose between parties over the extent of the employer’s subrogation lien, specifically, whether the employer could recover money awarded for pain and suffering.
            The employee was injured while at work due to a car accident.  Through his employer, the employee was paid total compensation benefits of $2,338.30, of which $1,198.30 of those benefits were for medical expenses.  He then received a $10,000.00 award in his personal injury case against the at-fault driver.  The district court award was specific in that it awarded $2,449.00 in medical bills, and $7,551.00 in pain and suffering. 
            The employee’s position was that the employer was not entitled to recover money awarded for pain and suffering because it was not “compensation.”  According to Section 9-902(e) of the Labor and Employment Article of the Maryland Code addressing the “Distribution of Damages,” first costs and expenses of the covered employee’s action are deducted from his recovery, then the employer is reimbursed for:

          [T]he compensation already paid or awarded […] and any amounts paid for      
          medical services, funeral expenses, or any other purpose under Subtitle 6 of
          this title […] and […] finally, may keep the balance of the damages recovered.

Md. Code Ann., Lab & Empl. § 9-902(e)(2)-(3) (emphasis added).

            The Court of Special Appeals, decided to uphold the underlying Workers’ Compensation Commission (“WCC”) and circuit court rulings to allow recovery by the employer of the claimant’s net recovery, which included the money awarded to him for pain and suffering in his personal injury case.            

            The Court relied mainly on the unambiguous statutory language in Section 9-902(e), which demonstrated the legislative intent to ensure that an employer is not responsible for damages caused by an at-fault party. 

            In Tenley, the intermediate appellate court demonstrated an intent to limit the liability of employers in workers’ compensation cases when the underlying injury was caused by a third party tortfeasor. The ruling in Tenley is in line with the legislature, which the Court found intended to narrow the scope of the employer’s liability for money damages in these types of cases, thus avoiding the capability of a claimant to “double dip.”


Thursday, July 17, 2014

The Court of Special Appeals Expands the Positional-Risk Test for Traveling Employee

In Gravette v. Visual Aids Electronics, et al., 2014 Md. App LEXIS 35, 90 A.3d 483 (2014), the Court of Special Appeals of Maryland expanded the liability for employers with traveling employees. 

In Gravette, an employee was assigned to set up audio visual aids at the Gaylord National Resort and Convention Center between July 7 and July 16, 2011.  During that time, he was a guest at the hotel.  On July 10, he was injured after work hours while dancing at a night club in the hotel.  The Maryland Workers’ Compensation Commission found that the injury did not arise out of the terms and conditions of his employment, and that it did not occur in the course of his employment; therefore Mr. Gravette was not entitled to workers’ compensation benefits.  The case was appealed and the Circuit Court for Prince George’s County agreed with the Commission.  Gravette then appealed to the Maryland Court of Special Appeals, which reversed the lower court’s decision.

The seminal case on this issue was Mulready v. University Research, 360 Md. 51, 756 A.2d 575 (2000).  In the Mulready case, a traveling employee who slipped and fell while taking a shower in his hotel room was found to have a compensable case.  The court announced the positional risk rule should be applied to traveling employees:
Absent facts indicating a distinct departure by the employee on a personal errand that would not be in the contemplation of the parties, an injury to a traveling employee generally is compensable so long as it occurred as a result of an activity reasonably incidental to the travel that the employer required. Thus, even injuries suffered by traveling employees as a result of common perils of everyday life or as a result of purportedly personal acts generally are compensable.

Id. at 66. 

In the present case, the Court held that that engaging in recreational activities such as dancing constitutes an activity, analogous to eating or showering, reasonably incidental to the travel required by his employer. 

The intermediate appellate court went on to say that Gravette’s use of an on-site nightclub is at least as foreseeable as cases found compensable in other jurisdictions, such as an injury that occurred while using a motel’s pool, or playing basketball at a YMCA a few miles away from the hotel.  The court distinguished these cases from another case where a flight attendant, while on a 24 hour layover, was injured when she traveled 58 miles to go downhill skiing.   The court in that case ruled that was not a reasonably foreseeable activity based on the distance traveled and the general dangerous nature of downhill skiing. 

Ultimately, the court in the Gravette case found the activity to be reasonable in that it was not dangerous or out of the ordinary, and found that it was foreseeable because the nightclub was on the premises and the employee could reasonably be expected to utilize a facility on the premises of the hotel where he was required to stay.  Though not specifically laid out in the wording of the Court's opinion, there is also a strong implication in the decision that Maryland wishes to distinguish itself from 20th century Elmore City, Oklahoma.

This ruling is important because it expands the general liability of employers for their employee’s injuries while they are traveling for work and may lead to stricter regulation of employees’ free-time activities during the course of their business trips.  In an age where employees are seeking, more than ever, to maintain a positive quality of life through balance between work and non-work activities, we can definitely expect to see more cases like this arise in the future.  If you are analyzing whether your company is protected with under its current policies feel free to contact us for a consultation.  

Thursday, July 10, 2014

Mobile Ride-Sharing Applications: Technology Changing Faster Than Law

Across the globe, in over 39 countries, people are trying a new form of locating transportation through mobile phone applications, commonly known as ride-sharing.  Companies such as Lyft and Uber, among others, have created an experience where a user can download an app to his or her mobile device to find area drivers who are willing to, for a fee, offer the user transportation to his or her desired location.

Several features differentiate this system from traditional taxicab services as we know them.  First, and arguably what makes these companies so popular over taxicabs, users can find transportation almost instantaneously in cities where companies like Lyft and Uber operate via the GPS function of a smart phone.  Gone are the days of calling a taxi and waiting an hour for an available driver to arrive.  Second, drivers use their own cars to offer transportation to users.  Companies like Uber and Lyft serve to bring the driver and ride-seeker together (and retain a fee for doing so), but they do not own or operate a physical fleet.  Third, the rate for such services can fluctuate based upon demand with users receiving a price quote for their entire trip prior to agreeing to accept a ride from the driver.  Further,contrasting these services from taxicab companies and each other, Lyft drivers are solely private individuals offering rides to other individuals, while Uber offers several types of services, including ride-shares offered by private individuals (through UberX) and rides offered from commercially licensed, professional chauffeurs (through UberBlack).   

While ride-sharing apps have been a huge success in many locations, such a system has not been without its share of critics.  Most notably, traditional taxi companies have challenged ride-sharing, arguing that the competitive playing field should be leveled with Lyft, Uber and similar companies forced to abide by the same stringent regulations imposed upon the taxicab industry.  Thus far, both ride-sharing app companies have skirted those regulations in many places because, as designed, they are technology companies matching riders with drivers rather than taxi companies who own, operate and manage fleets.  Interestingly, taxicab companies have not been seeking to end the use of ride-sharing technology but only to have those companies play by the same rules, suggesting that taxicab companies recognize the importance and usefulness of such an app and may be suffering from a case of sour grapes after not being able to capitalize on the same market opportunity themselves.  

In Maryland, a battle between taxis and Uber is blazing.  In April of this year, the Chief Public Utility Law Judge declared that ride-sharing application developer Uber is a common-carrier and thus subject to the same rules and regulations of a standard taxi company, including fixed prices rather than demand-based pricing, under the Maryland Public Utilities Article.  To reach the decision that Uber falls under these laws, the Judge essentially ruled that Uber “owns” the vehicles that are being used to offer rides: a conclusion that seems to contravene logic to some extent since Uber has no physical control or property interest in the vehicles.  Rather, they are basically a dispatch company.  While this specific Maryland challenge deals directly with Uber’s option that pairs ride-seekers with professional drivers for-hire rather than individual private drivers, the implication, legally, will probably be the same for both types of companies in Maryland. At this point, Uber’s appeal of the ruling is pending. 

With such complaints and lawsuits popping up around the world, different locales are dealing with the problem in different ways.  Recently Transport for London, the regulatory agency for that city's transportation industry, ruled that Uber's app is not the same as a taxi meter, thus allowing Uber to operate outside the rules and regulations that London's cabs must follow.  Here in the United States, some jurisdictions have decided to take matters into their own hands rather than waiting for regulatory and legal challenges, seeking to change the laws to accommodate the new technologies.  In June of this year, Colorado was the first state to pass legislation addressing specifically ride-sharing technologies in order to end the type of clash ensuing in Maryland.   The law in that state now allows ride-sharing apps but requires background checks for drivers, proof of insurance and vehicle inspections to assess safety. 

Though Colorado was the first to pass such laws, Maryland also had similar proposed legislation on the table before the Maryland General Assembly in the 2014 term.  Had the proposal been enacted into law, it would have codified safety standards, required driver background checks and rate reporting as well as set minimum insurance protocols such as requiring commercial liability insurance with minimum $1 million coverage for drivers offering ride-shares through the apps.  Unfortunately, the leading-edge proposal failed to pass. 

Until ride-sharing apps can garner enough support for legislative updates to meet changing technologies, Uber and Lyft are trying to continue to earn good will by stomping out detractors on other fronts.  While it is not a concern avidly raised by the traditional taxicab industry, one often cited worry about the continued growth of ride-sharing apps is rooted in public policy.  Many critics of Uber and Lyft question who will cover bodily injury claims in car accidents when drivers are acting as chauffeurs.  What about when drivers are en route to pick up clients?  Traditional taxicabs offer commercial insurance but Uber and Lyft, detractors argue, face insurance gaps.   

Not to be discouraged, both companies have followed up on such concerns with solutions.  Uber, specifically, made an announcement in May of this year, sharing information regarding their new insurance policies that govern the “gap” created between individual and professional coverage when a driver is actively on the Uber network but not transporting a passenger.  Uber CEO Travis Kalanick, in discussing the new policies in a conference call reported by Forbes Magazine said of the insurance, “it gives legislators and regulators the confidence in knowing the public interest is being protected while a lot of the rules are being figured out, and allows them to be thoughtful while they work through their legislative options…We are doing everything we possibly can to show how Uber in a city makes that city better.”

With Uber quickly winning favor with the general population and growing new types of and new markets for auto insurance coverage, it appears that, even with the latest hurdle in Maryland, ride-sharing technologies offering virtually on-demand services with free-market flexibility have lasting “curb” appeal.

Contributed by Lauren Seldomridge

Thursday, June 26, 2014

Connors v. GEICO, 216 Md. App. 418, 88 A.3d 162 (2014): The Court of Special Appeals Restricts the Offset of Underinsured Motorist Recovery to the “Per Occurrence” Limit

In Linda Connors, Individually, et al v. Government Employees Insurance Company,  the Court of Special Appeals affirmed the circuit court’s grant of summary judgment in favor of GEICO, holding that GEICO insurance policy’s “clear and unambiguous language” restricts GEICO’s underinsured motorist policy obligation to appellants collectively at $100,000.00. The intermediate appellate court arrived at the $100,000.00 figure  by offsetting GEICO’s “per occurrence” limit of $300,000.00 by the $200,000.00 previously paid to appellants through the tortfeasor’s insurance policy.

On April 14, 2009, spouses Linda and Robert Connors were walking in a residential area when the tortfeasor backed out of a driveway and hit them with his car. Mrs. Connors suffered minor injuries, while Mr. Connors unfortunately passed away from his injuries during the pendency of litigation. The tortfeasor’s insurance company readily paid out its full applicable policy limits of $100,000.00 per person/$300,000.00 per occurrence, paying $200,000.00 total for the incident.

Mr. and Mrs. Connors were both “insureds” under a motor vehicle policy issued by GEICO, which provided uninsured and underinsured motorist coverage with policy limits of $300,000.00 per person/$300,000.00 per occurrence.  Following their settlement with the tortfeasor’s insurance company, the Connors filed a claim with GEICO seeking additional recovery. Rather than seek the remaining $100,000.00 available to them (subtracting the $200,000.00 they received from the tortfeasor from their $300,000.00 per occurrence GEICO underinsured motorist policy as GEICO did when it tendered payment of $100,000.00 to them), they sought the full amount of $300,000.00. To arrive at that number, the appellants argued that the “per occurrence” language capping their recovery at $300,000.00 was subservient to the “per person” limit of $300,000.00 and that the offset calculations should begin in the amount of $600,000.00. The appellants then argued that GEICO should receive credit for the $200,000.00 from the tortfeasor’s liability policy, leaving $400,000.00, and only then should the $300,000.00 “per occurrence” limit come into play, thus permitting them to a total recovery from GEICO of $300,000.00

As expected, GEICO argued that its underinsured motorist policy language is “clear and unambiguous,” and that the “per occurrence” limit applies to claims of two or more people, and is to be reduced by all amounts paid by the tortfeasor, in aggregate.

After a brief recitation of underinsured motorist law in Maryland, the Court of Special Appeals went above and beyond what was necessary to defeat appellants’ nonsensical argument. Analysing both contract construction and Maryland’s longstanding “gap theory” on underinsured motorist coverage, the Court affirmed the circuit court’s grant of summary judgment in favor of GEICO, holding that “the clear and unambiguous language of the GEICO insurance policy leaves GEICO with a remaining obligation to appellants of $100,000.00,” which had been satisfied in appellants previous settlement with the tortfeasor’s insurance company.

Thursday, June 19, 2014

Court of Appeals Finds Duty Applies Despite Common Law Rule

School is out.  The days are long.  Steamed crabs are in season and the AC is on high.   It can only mean one thing:  summer is upon us! Along with in-season strawberries, frosty ice-cream cones and the smacking sound of flip-flops filling the air, pool season is officially here. 

With pools being readied for maximum swimmer capacity, extra caution must be taken to ensure safety and protection from liability. 

The Court of Appeals of Maryland recently addressed this topic in Blackburn L.P., et al v. Paul, No. 55, slip op. at __ (Md. April 29, 2014)In this case, three year-old Christopher Paul suffered permanent injuries after a near-drowning that occurred when he found his way to the closed pool at his parents’ apartment complex.  Following the incident, Christopher’s parents filed suit against the apartment complex. The apartment complex moved to dismiss the suit, arguing that Christopher was a trespasser who entered the gated and locked pool area uninvited and is therefore not entitled to recover in a negligence action.  While the ultimate issues of fact in this case remain unexplored, the case presented an opportunity for the Court to clarify the duties a property owner has when common law and statutory regulations come together and to remind us that when a statute or regulation is enacted for the purpose of guarding a specific class, that specific class will be entitled to the enhanced level of protection. 

Before statutes or regulations come into play, common law provides that the duty owed by a property owner to a visitor depends upon the legal status the visitor holds at the time of the injury.  In Maryland, there are generally four categories of status for visitors ranging from Invitee – with the highest duty of care owed -- to Trespasser, with the lowest protections.  The rationale behind the limited duty owed to a trespasser is that a trespasser is an individual who is intentionally on the owner’s property without the owner’s consent.  The common law recognizes that an owner generally owes no duty of care to the person who “sneaks” onto property, while someone who is invited to visit should be afforded more protections from any negligence on the part of the property owner.     

In Blackburn, the Court considered whether the enactment of COMAR and Montgomery County provisions setting forth regulations concerning barrier requirements around pools elevated the status of visitor Christopher from an uninvited trespasser to someone with more protection. In engaging in this analysis, the Court applied the Statute or Ordinance Rule to regulations and local ordinances. Generally, Maryland Courts have held that statutes enacted to protect the general public do not apply to those who do not otherwise have a right to be on property; namely, trespassers.  For example, a statute enacted to protect the public, such as one that requires a fence to prevent “any person” from entering, will not result in enhanced protections for someone who has trespassed on property.   

However, in this case, the regulations, while not assigning a legal status to visitors, provided direction as to what types of fences need to be installed around pools and incorporated by reference, the American National Standard for Residential Inground Swimming Pools.  The main objective stated in the American National Standard is specifically to protect children under the age of five. 

Under the Statute or Ordinance Rule discussed at length by the Court in this case, if there is a violation of a statute or ordinance that is designed to protect a specific class of people and violation of that ordinance or statute caused an injury, then a prima facie case of negligence has been presented.  This situation is distinguishable from statutes that protect the general public because there, to give rise to liability, the injured person must have had the right to be on the property; that is they must not have been a trespasser.  Under the Court’s analysis and application of the rule, a trespasser, if a protected class individual, is afforded a duty of care by the property owner by virtue of his inclusion in the protected class.

In Blackburn, it is agreed that, outside of the statute, Christopher was a trespasser.  However, the Court determined that the public interest in protecting a particular class (here specifically children under five) is so important that they will elevate the status of Christopher and children like him in order to provide property owner’s incentive to comply with the rule and keep children safe. The Court’s decision essentially morphed the Plaintiff from a trespasser into a protected class that is owed more duties and protection.

For the pool owners out there, the Court’s ruling in Blackburn means that you need to be aware of the types of duties that exist under common law versus those created by legislation in order to be protected from potential negligence action. On its face, it may appear that someone trespassed on your home; however, a more specified statute enacted by the Legislature may elevate the level of protection afforded to the trespasser, exposing you and your family to liability.  If you or your insured have any questions about compliance with applicable statues or ordinances to keep you and your property safe, or are facing litigation arising from a similar situation, please do not hesitate to consult us.  We are happy to help.  From everyone at RSRM, keep cool and have a safe summer.  

Contributed by Lauren Seldomridge