RSRM Congratulates its Attorneys on their Recent Bar Appointments!

Partner Tara Taylor has been selected to serve for a second year as Co-Chair of the Maryland State Bar Association's Judicial Appointments Committee, which is responsible for reviewing and recommending candidates for the Maryland Judiciary. She was also re-appointed to the Personal Injury Litigation Committee for the Bar Association of Baltimore City as well as to the Monumental City Bar Foundation Committee for the upcoming bar year. In addition, Ms. Taylor was selected to serve on the Membership Committee for the Alliance of Black Women Attorneys of Maryland.

Associate Bryan Upshur was appointed as the Technology Chair of the Bar Association of Baltimore City, where he is responsible for organizing and hosting educational seminars on issues relating to technology law. In addition, Mr. Upshur was appointed as a board member of the Monumental City Bar Association and the Young Lawyers Division of the Bar Association of Baltimore City. Mr. Upshur also serves as a member of the Maryland State Bar Association.

Associate Rima Kikani was re-appointed as Co-Chair of the Education Committee of the Maryland State Bar Association's Young Lawyers Section Council for the 2019-2020 bar year after winning the Section Council’s Best Committee Award this past year. She was also re-appointed to the Maryland State Bar Association's Leadership Academy Committee, which oversees an annual program designed to train future leaders in the legal profession.

Congratulations to our attorneys on their appointments!

Congratulations to Attorneys Tara Taylor and Rima Kikani on their recent $1 Million D.C. Court of Appeals Win!

Representing B. Frank Joy, L.L.C. (“BF Joy”), Partner Tara Taylor and Associate Rima Kikani, recently won an appeal in the District of Columbia Court of Appeals in B. Frank Joy, L.L.C. v. District of Columbia Water & Sewer Authority. Based on our attorneys’ arguments, the D.C. Court of Appeals effectively shifted the interpretation of a 47-year-old statutory law in a nearly $1 Million civil engineering defect-geotechnical hazard case. 

This case stemmed from the 2013 collapse of a roadway near the intersection of 14^th Street and F Street, NW, in Washington, D.C. Seventeen years earlier, in 1996, BF Joy had installed an access

chamber for AT&T beneath the intersection, allowing the telecommunications company to access underground cables. The 2013 collapse of the roadway caused extensive damage, including damage to a sewer main and other underground utilities. The District of Columbia Water & Sewer Authority (“WASA”) was responsible for repairing the underground water infrastructure, remediating the void, and repairing the intersection, incurring nearly one million dollars in damages.

In May 2016, WASA filed a Complaint against BF Joy, contending that BF Joy’s negligent construction of the chamber caused the collapse seventeen years later. Specifically, WASA argued that BF Joy’s installation of the access chamber bisected a storm water lateral, which blocked storm water from traveling into its sewer system, and instead, redirected the storm water back into the soil. According to WASA, years of water pressure from rainfall caused soil erosion, and the erosion, over time, caused the roadway above it to collapse.

In response, BF Joy denied any negligence, and among several affirmative defenses, argued that D.C.’s 10-year Statute of Repose barred WASA’s claim for the 1996 installation. BF Joy moved to dismiss WASA’s Complaint based on the 10-year limitation, but the Superior Court of the District of Columbia denied the request. After two years of discovery and litigation, the parties tried the matter in February 2018, and a jury found BF Joy liable for negligent installation of the access chamber.

BF Joy appealed the matter to the D.C. Court of Appeals, citing to the Statute of Repose as well as discretionary abuses by the trial court. WASA opposed the appeal, contending that the Statute of Repose did not apply to this case because: 1) the access chamber did not constitute an improvement to real property as required by the Statute given that it did not enhance the beauty or utility of the intersection; 2) the chamber did not constitute a defective condition under the meaning of the Statute; and 3) the Statute did not apply to the D.C. Government, of which WASA is a part.

Agreeing with BF Joy, the Court of Appeals reasoned that: 1) the underground access chamber does constitute an improvement to realty under the meaning of the Statute because it allows AT&T to access fiber optic cables that provide telecommunications services to surrounding buildings, including the U.S. Department of Treasury; 2) if an access chamber poses a geological hazard, then it is, by definition, a defective condition under the Statute; and 3) although the Statute exempts the D.C. Government from compliance, WASA, for purposes of this Statute, is a separate entity of the Government, but not the Government itself.

Thus, the Court held that the Statute of Repose does apply to this matter, and because WASA waited seventeen years to file suit instead of complying with the 10-year limitation, the trial court should have dismissed WASA’s Complaint. Accordingly, the Court vacated the trial judgment and reversed the denial of BF Joy’s motion to dismiss, barring WASA from any recovery.

Congratulations to Ms. Taylor and Ms. Kikani on this outstanding win.

Court of Special Appeals Holds that Property Owners Have a Duty to Avoid Causing Harm to Neighboring Properties

Steamfitters Local Union No. 602 v. Cincinnati Insurance Company, et al., 241 Md. App. 94 (2019)

In April 2015, a fire that began on property owned by Steamfitters Local Union No. 602, (“Steamfitters”) spread to neighboring properties. The neighboring properties were owned by Gordon Contractors, Inc. (“Gordon”) and Falco Industries, Inc. (“Falco”). Insurance carriers for Gordon and Falco filed suit against Steamfitters alleging that Steamfitters was liable for their damages because they allowed cigarette butts to start a fire on a strip of mulch. Steamfitters filed a Motion for Summary Judgment arguing that commercial landowners do not owe any duty of care to prevent third parties from discarding cigarettes. The Motion for Summary Judgment was denied, and the case proceeded to trial.

At trial in the Circuit Court for Prince George’s County, the fire was ultimately found to be caused by a discarded cigarette butt that landed on a strip of mulch on Steamfitters’ property. Gordon and Falco alleged that an unknown individual discarded a cigarette butt and Steamfitters failed to use reasonable care to prevent a fire, which was a foreseeable risk of discarded cigarettes. Steamfitters’ Corporate Designee testified that there was no cigarette policy, and that a carelessly discarded cigarette could start a fire on the mulch. A fire investigator testified that he found hundreds if not thousands of cigarette butts discarded on the Steamfitters property. A jury entered judgment against Steamfitters for over one million dollars. Steamfitters appealed and argued that the trial court improperly denied its Motion for Summary Judgment.

The Court of Special Appeals of Maryland (“COSA”) affirmed the judgment and found no error in the trial court’s denial of Steamfitters’ Motion for Summary Judgment. The COSA found that there was “evidence from which the jury could determine that Steamfitters was aware that hundreds of cigarettes had been discarded in the mulch and that this practice put it on notice that a dangerous practice was occurring on its property, specifically the disposal of cigarettes in a combustible substance…. A duty arose because the otherwise normal condition became dangerous by virtue of the practice of persons tossing cigarette butts into the mulch.” Steamfitters, 209 A.3d at 173. The COSA relied on longstanding case law that a property owner owes a duty of reasonable care to the owners and occupants of neighboring properties to avoid causing harm to the neighboring properties.

The dissenting opinion pointed out that the COSA majority opinion risked placing too much liability upon a property owner who has little to no control over third parties, without making anyone safer. The dissent also noted that the previous cigarette butts never started a fire, which should have indicated a lack of risk from the cigarette butts, not a duty to prevent a fire. Notwithstanding the dissent, property owners may be wise to create smoking policies and post warnings around any combustible objects or dried mulch.

-Bryce Ziskind, Associate Attorney