Maryland House of Delegates Rejects Punitive Damages Bill

The Maryland House of Delegates rejected House Bill 469.  This bill would have allowed for punitive damages against drunk drivers who caused "personal injury or wrongful death while driving or attempting to drive a motor vehicle" and with a blood alcohol level of 0.15 or higher.  

New Workers' Compensation Death Benefits Changes Effective March 19, 2012

On February 23, 2012, the Workers’ Compensation Commission adopted amendments to Regulation .06 and new Regulation .06-1 under COMAR 14.09.01.  These statutory changes deal with the payment of death benefits to surviving dependents. The law also enables counties and municipal governments to opt into the new death benefits scheme.

These changes became effective March 19, 2012.

Post-judgment Death Does Not Reduce Verdict That Includes Future Medical Expenses

The Maryland Court of Appeals in Spangler v. McQuitty recently issued an interesting opinion addressing the question of whether a plaintiff’s death prior to the time that post-judgment motions are ruled upon is grounds for reducing the verdict awarded to that plaintiff.  More specifically, the Court addressed whether a plaintiff whose judgment included an award for substantial future medical costs is still entitled to those costs if that plaintiff dies prior to the post-judgment motions being ruled upon and a final judgment entered.  The Court held that Plaintiff was indeed entitled to retain such an award and the trial court should not consider Plaintiff’s untimely death in deciding a Motion to Remittitur or for a New Trial.

The case in Spangler dealt with a medical malpractice claim where the jury in the underlying case had awarded Plaintiff $13,078,515.00 in total damages with $8,442.515.00 of that verdict awarded to pay for the future medical care of the minor Plaintiff.  Though the history of the case is extensive, the relevant history begins after the case was reviewed by the Court of Appeals on a separate issue and it was returned to the trial court for resolution of a post-trial motion by Defendant’s counsel that had been pending prior to the appeal.  After remand to the trial court, Plaintiff whose injuries were the subject of the case died before the post-trial motions were resolved.  Based upon this development, Defendant argued in a motion for a new trial, among other points, that the award of damages in the case for future damages should be reduced or a new trial ordered based upon the change in status of Plaintiff.  The death of Plaintiff at this juncture would make the award a windfall and would not reflect the actual damages suffered by Plaintiff. 

The Court of Appeals disagreed with the defendant and refused to reduce the verdict or order a new trial.  The Court held that although there was some support for the argument in favor of reducing the verdict, if they disturbed the finality of the judgment in this case, it would create the prospect of endless litigation as any judgment would be subject to revision based upon changes in circumstances in the future.  The need for finality of judgments necessarily outweighs any inequity in the damages awarded.  The Court therefore denied Defendant’s post-trial motions.

The decision in Spangler also contains a good reminder of the rules applicable when dealing with a pre-trial settlement by a co-defendant, particularly when dealing with a so called Swigert release and the effects on the remaining defendant.  In Spangler, a co-defendant Hospital settled with the plaintiff after the Hospital had been granted summary judgment in its favor, possibly in order to avoid an appeal on the summary judgment award.  The release between the plaintiff and the Hospital appears to have been based upon the Swigert model, stating that the Hospital did not admit liability and that the any subsequent award would be reduced by the pro rata share of any damages if and only if the Hospital was adjudicated to be a joint tortfeasor by a final judicial determination on the merits.  If no such finding were made, there would be no set off.  The non-settling defendant did not appeal granting of summary judgment or otherwise seek to establish liability on the settling co-defendant prior to the $13,078,515.00 award, but nevertheless requested that the Court reduce the award against him by the amount of settlement or the pro rata share of the judgment that would have been borne by the Hospital.  

Applying the Uniform Contribution Among Joint Tortfeasors Act, the Court of Appeals held that since the Hospital was in fact judicially determined not to be a joint tortfeasor through summary judgment in its favor, no reduction was warranted.  The Hospital was simply acting as a “volunteer” in the case rather than as a torfeasor.  The Hospital had never admitted liability and had never been judicially determined to be liable.  It was therefore by application of the Act not a jointtortfeasor and no reduction in judgment was required. 

Though a successful appeal of the granting of summary judgment appears to have been the only possible way that the outcome of the defendant’s request for reduction would have been different, certainly a difficult proposition, the case does provide a good reminder of the possible pitfalls that must be dealt with in a multi-defendant litigation.

Article Contributed by Tom Neary

Court of Special Appeals Finds No Exception to "Going and Coming" Rule

       Recently in Garrity v. Injured Workers Insurance Fund, et. al, the Court of Special Appeals held that no exceptions to the “going and coming rule” were applicable, and as a result the employee’s resulting injuries were not compensable, where an employee left work without express or implied authorization, and subsequently, was involved in an automobile accident on his return to work. This case gives exceptional insight to the rationale behind the “going and coming rule” and its exceptions.

       Scott Garrity, the (“Appellant”), a part time bailiff at the District Court for Baltimore City, was involved in a serious car accident as he was driving back to the courthouse during the workday. On June 8, 2006, shortly after arriving at work, the Appellant spilled coffee on his shirt and tie. The Appellant then decided to leave the courthouse and return home to change his shirt and tie, without notifying a supervisor. The Appellant was assigned to courtroom five that morning, and explained, that when two bailiffs were assigned to a courtroom five, it was customary that one bailiff would take over the courtroom if the other needed to run an errand. On his return, the Appellant was involved in a head on car accident.

       Ordinarily, an employee that suffers an injury going to or returning from their place of work is not considered to be acting in the course of employment. On appeal, the Appellant acknowledged that he was returning to work, but asserted that the injury is compensable under three (3) exceptions to the “going and comings rule”: (1) the special mission exception; (2) the dual purpose doctrine exception; and (3) the personal comfort exception.

       The special mission exception is generally applicable when an employee is traveling on a special mission or errand at the request of the employer and in furtherance of the employer’s business. The crux of whether or not the special mission exception applies depends on whether the employee had express or implied authority to undertake the special errand. Whether a case falls in the rule depends on the terms of the agreement by which the claimant is employed, either in an express form, or an implication from the nature or character of the work. 

       Here, the Appellant’s assertions of authority to go on the errand where two-fold 1) he alleged that the “Policy on Appropriate Attire and Appearance” mandated that he change his stained shirt and tie and 2) that he had implied authority to leave given the liberal policy concerning bailiffs’ running errands. Not persuaded, the Court found that the appellant did not have express or implied authority to leave the courthouse, and, therefore, the appellant could not be on a special mission on behalf of his employer.

       The dual-purpose doctrine exception applies if the injury occurred during a trip that serves both a business and a personal purpose. Here, the Appellant contended that his injury was compensable under the dual-purpose doctrine because he was advancing the judiciary’s interest by asserting that he had his radio with him so that he could monitor communication and return if needed. The Court determined that the Appellant took the radio on his own initiative, without being advised to, and was not serving a business purpose by merely bringing the radio with him.  In fact, the interests of the courthouse would have been better served by the Appellant by remaining at the courthouse.  Therefore, the dual purpose doctrine was also not applicable. 

       Finally, the personal comfort exception is applicable if the claimant sustained an accidental injury while engaged in some personal comfort activity incidental to employment, for example a coffee break or other paid break intervals as specified in an employment contract. Here, the record did not suggest that the terms of the Appellant’s part-time employment entitled him to a paid break in which he could attend to his personal comforts. Thus, the personal comfort exception also did not make the Appellant’s injury compensable. 

Article Contributed by Andrew Nichols

Recent Court of Appeals Decision Significantly Alters Notice Element in the Defense of “Black Ice” Cases in Maryland

GeorgePoole v. Coakley & Williams Construction, Inc., et al., No. 130 September Term 2010. 

            For years, the “assumption of risk” defense has been used by defendants in slip-and-fall premises liability cases.  Essentially, the elements of this defense are that a plaintiff knew of and appreciated a dangerous condition, and voluntarily decided to proceed in the face of that danger.  Until recently, Maryland precedent allowed a defendant to prevail as a matter of law prior to trial by filing a motion for summary judgment, under the theory that when a plaintiff ventured outside in inclement weather, the plaintiff knew or should have known that there existed a possibility of slipping and falling on ice or other precipitation, and voluntarily assumed that risk.  In other words, all that was required to prove the “knowledge” element of the assumption of risk defense was that weather conditions existed at the time of the alleged occurrence that could have produced slippery and unsafe conditions.  The plaintiff was then presumed to have knowledge and appreciation of that danger.

            The Maryland Court of Appeals opinion in Poole v. Coakley & Williams Construction, Inc., et al., which was released in October 2011, overruled prior case law as it related to proving knowledge and appreciation of a dangerous condition on the part of a plaintiff.       

            George Poole alleged that he slipped and fell on “black ice” one morning as he was walking through a parking lot toward the rear entrance of his place of employment.   Water was being pumped from a nearby building and a stream ran through the parking lot into a drain.  The defendants allegedly owned and controlled the building, or took part in pumping water out of pipes and into the parking lot.  The plaintiff sued the defendants alleging several counts of negligence, including negligence for failure to “prevent a stream of water from flowing onto the parking lot, thereby causing black ice to form.”  The plaintiff argued that he thought that it was safe to proceed through the stream because he had walked through it previously without incident.  In the trial court, the defendants filed a motion for summary judgment under an assumption of risk theory, which was granted.  The trial court applied the rule in Allen v. Marriott, stating, “[t]he Court of Appeals and the Court of Special Appeals have made it abundantly clear that when someone is aware of icy conditions in an area and nevertheless elect[s] to proceed through those areas they assume the risk as a matter of law.”    

The plaintiff appealed to the Maryland Court of Special Appeals; however, the Court of Appeals issued a writ of certiorari on its own initiative.  The Court subsequently reversed the granting of summary judgment, finding that the plaintiff “did not assume the risk of his injuries as a matter of law.”  The Court held that a particular plaintiff must have “actual, subjective knowledge” of a risk before he can be held to have assumed that risk as a matter of law.  Assumption of risk will only be granted if the “undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.”  Notably, the Court distinguished “black ice” cases from those where a plaintiff encounters visible snow and ice.  In the former, knowledge may be imputed as a matter of law, with the rationale being that the plaintiff fell on snow or ice that was plainly visible.  “Black ice,” on the other hand, is difficult or impossible to see and does not reflect as much light as regular ice. 

The crux of the Poole holding is that actual knowledge may not be imputed to the plaintiff.  In other words, the Court of Appeals overruled the holding in Allen v. Marriott to the extent that the previous rule allowed the courts to bridge the gap between imputed knowledge of a given risk (i.e., there may have been icy conditions) and actual knowledge of a given risk (i.e., there were icy conditions).  This holding, however, does not otherwise alter or affect the use of the assumption of risk defense.  It simply defined and clarified when a plaintiff can be held to have knowledge and appreciation of a given risk as a matter of law, which is a factual determination. 

Article contributed by James Buck & Danielle Williamson