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