Thursday, June 30, 2022

Congratulations to Partner Rod Barnes on his Recent Win!



A 70-year-old grandmother from Florida was in Maryland Christmas shopping with her granddaughters two days before Christmas at a local shopping mall.  While still shopping with her granddaughters, the store closed for the night.  As the grandmother and her granddaughters were leaving the store, she claimed that the steel overhead security gate suddenly and without warning dropped from the ceiling six feet overhead and struck her on the crown of her head.  The Grandmother filed suit against the mall and the retail store claiming that the gate was defective and dangerous to store patrons.  She claimed to have suffered a traumatic brain injury which left her with cognitive deficits and persistent headaches.  She also claimed to have suffered cervical spine injuries which required her to receive numerous nerve block injections and ultimately a cervical spine fusion.  Plaintiff claimed medical expenses in excess of $169,000.00 and pain and suffering in excess of $900,000.00.

At trial, Mr. Barnes successfully argued that the Plaintiff’s medical expert was unqualified to testify about the fairness and reasonableness of the Plaintiff’s medical bills, all of which were from out-of-state healthcare providers.  The Court agreed that the Plaintiff’s expert who was a local Maryland physician did not demonstrate sufficient familiarity or knowledge about the billing practices in Florida or Texas to enable him to testify about their reasonableness.  Thus, all the Plaintiff’s medical bills were excluded from evidence. The Plaintiff then proceeded with a reptilian theory of damages.

Mr. Barnes carefully cross-examined the septuagenarian about her extensive medical problems that pre-existed the alleged Mall incident.  He also highlighted her varying accounts of how the incident happened that she shared with her dozens of healthcare providers – including that she accidentally walked into the gate as it was partially lowered at closing time.  Plaintiff called 5 additional witnesses, all of whom were family members.  None of her witnesses saw the alleged incident so there was minimal cross-examination.

During his closing argument, Mr. Barnes highlighted the fact that the Plaintiff never called an expert witness who testified that there was a problem with the security gate.  Plaintiff didn’t describe the gate, didn’t introduce a picture of the gate, didn’t explain how the gate worked, didn’t identify what part of the gate failed, and had no evidence that this type of incident ever occurred before the subject incident, or in the 5 years since.

The Jury deliberated for 3 hours before returning a unanimous defense verdict.

Congratulations to Mr. Barnes on this outcome!

Tuesday, June 21, 2022

Congratulations to Partner Benjamin Beasley on his recent trial win in the Circuit Court for Baltimore City!

Mr. Beasley represented an individual who made a left turn on a yellow arrow turn signal and collided with an oncoming motorist’s vehicle that had a green light.  Relying on provisions in the Transportation Article and applicable case law, Mr. Beasley argued that his client was not negligent as his client had the right to clear her passage across the intersection.  The court agreed, finding Mr. Beasley’s client was not negligent and entering judgment in Mr. Beasley’s client’s favor.

 

Congratulation to Mr. Beasley on this outcome!

The Workers’ Compensation Commission gained Authority to Order a Complete Reimbursement of all Independent Medical Examination No-Show Fees.

    


    COMAR 14.09.03.08B(6) was recently amended to allow the Maryland Workers’ Compensation Commission (“WCC”) to order claimants to pay reasonable expenses and costs actually incurred with missed independent medical examinations (“IME”). .  The prior regulation only permitted the Commission to award employer/insurers reimbursements up to $125.00 per missed IME.  This is now a huge victory for employer/insurers, as the cost of missed IMEs were often far greater than $125.00.  

    Initially, we hoped that with the ability to award larger sums for reimbursement of IME no-show fees, employers/insurers would suffer fewer financial losses, and claimants would be deterred from missing IME appointments.  

    Unfortunately, since the passing of this revised regulation, the WCC has still often declined to award full reimbursement of IME no-show fees.  Rather, the Commission relied on a trusted doctor to survey various medical practitioners throughout Maryland and to calculate an average no-show fee.  According to this doctor, the average no-show fee in Maryland was approximately $350.00.  Since this determination, the trend from the Commission is to award no more than $350.00 per missed appointment.  Unfortunately, this amount is significantly less than many of the invoices received for IME no-show fees. 

    Still, it is important to file issues for reimbursement of IME no-show fees, in order to ensure claimants understand the financial implications of missing medical appointments.  In order to successfully prevail on issues for reimbursement of IME no-show fees, it is imperative that the employer/insurer’s attorney receive the following documents:

        1.  The letter sent to claimant and their attorney advising them of the independent medical                                        examination appointment.

        2.  The invoice from the independent medical examination provider with the no-show fee.

        3.  The check issued by the employer/insurer for the costs of the no-show fee.

    It is vital that the letter sent to claimant and their attorney is sent to the correct addresses.  For extra security, the letter should also be emailed to claimant’s attorney with a request for a read receipt.  If claimant can prove that they did not receive notice of the IME, the employer/insurer is unlikely to receive reimbursement.  Similarly, it is important that IMEs are scheduled well in advance, and that notice of the IME is provided to claimant as soon as possible, in order to allow time for the claimant to make any necessary arrangements to attend the appointment.  

    If you have any questions on how to pursue issues for reimbursement of IME no-show fees, do not hesitate to contact RSRM’s Workers’ Compensation Department, consisting of Partner Paul Donoghue, Partner Alicyn Campbell, and Associate Ashley Bond.

                -- Ashley Bond, Associate

Monday, June 6, 2022

Maryland Court Echoes Jurisdictions Across the Country, Over the Interpretation of Business Interruption Coverage, as it relates to Covid-19.




GPL Enterprise, LLC v. Certain Underwriters at Lloyd’s, et al., No. 302, Sept. Term 2021. Opinion by Arthur, J.

    In a recently reported opinion issued by the Court of Special Appeals of Maryland, a three-judge panel concluded that a commercial property insurance policy designed to cover “direct physical loss or damage to” property does not apply to the lost revenue of a restaurant, which was forced to shut its doors during the pandemic.

    The underlying dispute, in this case, arose from an insurance claim made by GPL Enterprise, LLC (hereinafter "GPL"), which operates a restaurant called The Anchor Bar. Two weeks after Governor Larry Hogan issued an emergency order closing all Maryland restaurants and bars, GPL filed a claim with their insurance company. GPL's claim sought coverage for direct physical harm, loss, or damage to their premises, which they claim resulted from Covid -19 and Governor Hogan’s emergency order. The insurance carrier denied GPL’s claim, presumably citing an absence of “direct physical loss of or damage to” the property itself, as a pre-condition for coverage.

    As a result, GPL filed a two-count complaint in the Circuit Court for Frederick County alleging breach of contract and requesting the Court declare the parties’ rights under the policy. The insurance providers prevailed on a motion to dismiss at a hearing on April 27th. GPL appealed that decision.

    The policy in question is a commercial property insurance policy. The primary purpose of which is to protect the property that the insured uses in its business “against direct physical loss or damage as a result of fire, vandalism, meteor strike, etc.” In addition, the policy included business interruption coverage for the loss of income and additional expenses incurred from the direct loss or damage. The meaning of “direct physical loss of or damage to” property is the central issue in this case. As the court sought to answer, whether the Governor’s order or the Covid-19 virus resulted in direct physical loss of or damage to GPL’s property.

    No Maryland appellate court had decided this issue. However, numerous other courts around the country had ruled on similar issues, which the Court of Special Appeals deemed virtually identical to GPL’s claim. The Court of Special Appeals cited numerous cases that determined that language, which is practically identical to that of GPL’s insurance policy, was unambiguous. The Court pointed to the inclusion of the term “physical” as a clear indicator that some form of a material alteration to the property must be present for the insurance claim to be viable.

    The Court noted that, unlike a fire or meteor strike, the Governor’s order had no tangible or physical impact on GPL’s restaurant or the property inside it. As a result, the pre-condition that GPL show a  “direct physical loss of or damage to” the business, which was needed in order to obtain business-interruption coverage, had not been satisfied. This opinion shows how courts in Maryland have fallen in line with other jurisdictions across the country as insurance providers and businesses attempt to establish new boundaries in the wake of COVID-19.

            -- Scott Mitchell, Law Clerk

Tuesday, May 31, 2022

RSRM Welcomes Associate Bryan Cleary!

 


Bryan Cleary earned his J.D. from the University of Baltimore School of Law in May 2021. Before that, he graduated from Moravian University in 2018 with a major in Political Science. While attending law school, Mr. Cleary served as a staff editor for the University of Baltimore Law Forum and was a Maryland Rule 19 Student Attorney in the Saul Ewing Civil Advocacy Clinic. Mr. Cleary also spent time interning with the Honorable Debra L. Boardman of the United States District Court for the District of Maryland. 
 
Prior to and during his undergraduate education, Mr. Cleary worked as an operations supervisor for UPS for four years, where he was responsible for managing numerous employees and various areas of the building. 

Immediately after graduating from law school, Mr. Cleary clerked for the Honorable Timothy J. McCrone in the Circuit Court for Howard County.
 
Outside of the office, Bryan enjoys watching and playing sports, spending time with friends and family, traveling, reading, and playing with his German Sheppard, Stella.

Maryland Court of Appeals Upholds its Tolling of the Statute of Limitations Due to the COVID-19 Court Closures

 


Murphy v. Liberty Mut. Ins. Co., 2022 Md. Lexis 166 (Filed April 22, 202) (opinion by McDonald, J.)


        In a recently published opinion by the Court of Appeals, Maryland’s highest court held that former Chief Judge Barbera acted within her authority when she issued an administrative order on April 24, 2020,  tolling the statute of limitations in civil matters due to the COVID-19 emergency court closures.


        The underlying commercial dispute in Murphy originally arose in Maryland’s Federal District Court. The parties in the federal suit disputed the timeliness of certain claims and whether the Federal District Court possessed diversity jurisdiction over the claims. As the resolution of these questions depended on the validity of Judge Barbera’s administrative order, the Federal District Court “certified” the question of the order’s validity to Maryland’s Court of Appeals.


        In upholding the administrative order’s validity, the Court of Appeals looked to the Chief Judge’s authority under the Maryland Constitution, the Maryland Code, and the Maryland Rules. The Murphy Court first referenced Art. IV. § 18 of the State Constitution, which confers both administrative and rulemaking authority on the Chief Judge, particularly as that authority pertains to the “practice and procedure” of the courts. The opinion also noted the General Assembly’s acknowledgment that the rulemaking power of the Court of Appeals, “shall be liberally construed.” Md. Code Ann. Cts. & Jud. Proc. § 1-201(a).


        While recognizing that the statute of limitations is a “product of legislation,” the Murphy Court reasoned that it falls to the courts to “interpret and administer” the deadlines imposed by the statute of limitations. Ceccone v. Carroll Home Services, LLC, 454 Md. 680, 691, (2017); Md. Rule 1-203 (computation of time). To illustrate this point, the court observed that questions as to when an action accrues and triggers the statute of limitations are often left to judicial determination, citing Cain v. Midland Funding, LLC, 475 Md. 4, 38 (2021), Poffenberger v. Risser, 290 Md. 631, 634-38 (1981), and Hahn v. Claybrook, 130 Md. 179 (1917). The Murphy Court reasoned that, as with any other enactments of the legislature, courts must ascertain and carry out the legislative purpose behind the statute of limitations.


        In examining the various responsibilities of Maryland’s branches of government during the Pandemic, the court looked to Maryland Rule 16-1003(a)(7), which, during an emergency, allows the Chief Judge to: “suspend, toll, extend, or otherwise grant relief from time deadlines, requirements, or expirations otherwise imposed by applicable statutes,”


        Against this backdrop, the Murphy opinion recounted the various administrative orders issued in response to the COVID-19 Pandemic and found “ample and explicit authority under Article IV of the State Constitution and the Maryland Rules” for the Chief Judge to issue the administrative tolling order.


        The remaining issue was whether the order “overreached the authority of the Judiciary” under Articles 8 (separation of powers) and 9 (prohibition against suspension of laws). Regarding separation of powers, the court looked to examples of shared authority between the branches to highlight that the powers of the three branches are often intertwined. For example, the General Assembly has a role in the election and appointments to positions in the Executive Branch while the General Assembly may entrust “legislative-type powers” to Executive Branch agencies charged with administering certain situates. Despite some shared authority, branches run afoul of Article 8 when they “usurp” the powers of another branch. In upholding the validity of the order, the court held that the order was not an expression of a judicial policy preference but rather fell under the court’s “practice and procedure” functions under the Maryland Constitution.


        Finally, the court considered where the order violated Article 9’s prohibition against the suspension of laws. Interestingly, despite being part of the Maryland Declaration of Rights since 1776, the provision had not yet been interpreted by the Court of Appeals. Article 9 provides, "[t]hat no power of suspending Laws or the execution of Laws, unless by, or derived from the Legislature, ought to be exercised, or allowed." The court noted that Murphy Enterprises, the party arguing the violation of Article 9, failed to articulate why the court’s order violated the article and, even if the order constituted a “suspension” of laws, doing so was under the court’s core constitutional powers was in coordination with the other branches of government.  


        While there may be some remaining questions as to how long the statute may be tolled when applied to a particular case, the Murphy opinion left no doubt that the Court of Appeals had the authority to issue the COVID-19 tolling orders. 


                -- Joseph Kavanaugh, Associate



Governor Hogan Announces Several Appointments to Maryland’s Trial and Appellate Courts



In February, Governor Hogan announced several judicial appointments to the Maryland Court of Appeals, Court of Special Appeals, and trial courts in Baltimore City and Washington County. 
 
Judge Angela M. Eaves was appointed to the Maryland Court of Appeals to succeed Judge Robert N. McDonald. Before her appointment to the Court of Appeals, Judge Eaves served as the Administrative Judge for Harford County Circuit Court. Judge Eaves' legal career included work at both the Maryland Attorney General's Office and the Maryland Legal Aid Bureau. Judge Eaves also served as an assistant city attorney for the City of Dallas. Judge Eaves earned her bachelor's, master's, and J.D. from the University of Texas. 
 
Judge Matthew J. Fader was appointed to the Maryland Court of Appeals to succeed Judge Joseph M. Getty. Judge Fader was the chief judge of the Maryland Court of Special Appeals prior to his appointment to the Court of Appeals. Before taking the bench, Judge Fader worked for the U.S. Department of Justice, the Maryland Attorney General's Office, and was a partner at the international law firm, K&L Gates, LLP. Judge Fader received his B.A. from the University of Virginia and his J.D. from Yale Law School. 
 
Judge Anne K. Albright was appointed to succeed Judge Fader on the Maryland Court of Special Appeals. Judge Albright was a member of the Circuit Court bench in Montgomery County at the time of her appointment to the Court of Special Appeals. Previously, Judge Albright worked for the Maryland Public Defender's Office and the law firm Albright & Rhodes. She obtained her A.B. from Dartmouth College and her J.D. from Georgetown University Law Center.  
 
Judge E. Gregory Wells was appointed to serve as the chief judge of the Maryland Court of Special Appeals. Judge Wells had been a member of the Court of Special Appeals since 2019, before which he sat in Calvert County Circuit Court. Judge Wells previously worked in the Attorney General's Office's Criminal Appeals Division and served as the State's Attorney for Calvert County. Judge Wells earned his B.A. from the College of William & Mary and his J.D. from the University of Virginia. 
 
Judge Joseph S. Michael was appointed to the Circuit Court for Washington County. Judge Michael was the deputy state's attorney for Washington County and had previously maintained a part-time civil practice. Judge Michael obtained his B.A. from the University of Maryland and his J.D. from Washington & Lee University School of Law. 
 
Judge Tameika M. Lunn-Exinor was appointed to the District Court of Maryland for Baltimore City. Judge Lunn-Exinor was an administrative law judge at the Office of Administrative Hearings at the time of her appointment. Before becoming an administrative law judge, Judge Lunn-Exinor practiced civil litigation at firms in Baltimore and Washington, D.C. She received her B.A. from Johns Hopkins University and her J.D. from George Washington University School of Law
 
Judge Lydie Essama Glynn was appointed to the District Court of Maryland for Baltimore City. Judge Glynn was the chief solicitor in the litigation and appeals division at the Baltimore City Solicitor's Office. Her legal career also included work for the Attorney General's Office and other positions at the City Solicitor's Office. Judge Glynn obtained her B.A. from the University of Pennsylvania and her J.D. from the University of Virginia.
 
Judge Ana De la Hoz Hernandez was appointed to the District Court of Maryland for Baltimore City. Judge Hernandez worked for the Maryland Public Defender's Office, most recently in the Baltimore City felony trial division. Prior to becoming a lawyer, Judge Hernandez taught special education courses in Miami-Dade County, Florida. Judge Hernandez received her A.A. from Florida International University, her B.A. from the University of Florida, and her J.D. from the University of Miami School of Law.
 
Judge Theresa Morse was appointed to the District Court of Maryland for Baltimore City. Before her appointment, Judge Morse worked for the Attorney General's Office's Organized Crime Unit and both the Anne Arundel County State's Attorney's Office and the Baltimore City State's Attorney's Office. Judge Morse earned her B.A. from Boston College and her J.D. from the University of Maryland, Francis King Carey School of Law. 
 
Rollins, Smalkin, Richards and Mackie would like to extend their congratulations to all of the new Maryland judicial appointments.  



Thursday, May 19, 2022

Congratulations to Associate Logan Hayes on her recent win!


Ms. Hayes successfully represented a client involved in a motor vehicle accident in which the Plaintiff claimed personal injuries and property damage as a result of her client’s alleged negligence.

The Plaintiff argued that he was traveling on a roadway, had his left turn signal on, and was making a left turn when his vehicle was T-Boned by Ms. Hayes’ client, who was proceeding through the intersection. During Ms. Hayes’ cross-examination, the Plaintiff testified that he had a solid green arrow and the right of way at the intersection. The Plaintiff also presented an independent witness who, under cross-examination by Ms. Hayes, admitted that Ms. Hayes’ client entered the intersection under a yellow light.

Based upon her client’s testimony that he had the right of way in the intersection and the supporting testimony of the Plaintiff’s own independent witness, the Court ruled in favor of the Defense. The Court found that Ms. Hayes’ client had the right of way, was permitted to proceed through the intersection and did not contribute to the collision, rather that the Plaintiff unlawfully and negligently attempted a left-hand turn without the right of way, barring him from recovering damages. 

Thursday, March 24, 2022


Maryland Court of Special Appeals: Contributory Negligence as a Matter of Fact is Reserved for the Jury Despite Multiple Inferences of a Plaintiff’s Potential Negligence

Jacqueline Cador v. YES Organic Market Hyattsville Inc., No. 0898, September Term 2020. Opinion by Moylan, J. (Court of Special Appeals February 1, 2022).

In a recently published decision by the Court of Special Appeals, Maryland’s intermediate appellate court clarified the distinction between the evidentiary predicate requiring a finding of contributory negligence as a matter of law and the predicate allowing for a finding of contributory negligence as a matter of fact

On September 21, 2016, Jacqueline Cador ("Plaintiff") went shopping with her family in a grocery store owned and operated by Yes Organic Market Hyattsville Inc. ("Defendant"). It was near closing time and the floors had recently been mopped by an employee of the Defendant. Upon entering the store, the Plaintiff spent a few moments talking to an employee in the check-out area near a conspicuously placed sign reading "Caution: Wet Floor." Although the Plaintiff never acknowledged seeing this "Wet Floor" sign, she was standing very close to it when talking to the employee. The Plaintiff then proceeded to walk down an aisle and fell almost immediately after entering the aisle. Very close to the site of the fall, on the side of the aisle, was a yellow mop bucket. 

As a result of the fall, the Plaintiff required partial knee replacement surgery. The Plaintiff subsequently filed suit against the Defendant for negligence. Prior to trial, the Defendant filed a motion for summary judgment arguing the Plaintiff’s contributory negligence barred recovery. The Defendant argued that, based on the proximity of the Plaintiff to the "Wet Floor" sign after she first entered the store and the mop bucket near to where she fell, the Plaintiff must be deemed to have seen one or both of those objects and was thereby put on notice that the floor was dangerous. Accordingly, the Defendant reasoned that the Plaintiff had notice that heightened caution was necessary and that she failed to exercise that caution. The trial court agreed, concluding that the undisputed evidence showed that the Plaintiff was contributorily negligent by failing to exercise heightened caution when required.

The question raised on appeal was whether the existence of contributory negligence a question of law for the judge or a question of fact for the jury. The Court of Special Appeals cited to Menish v. Polinger Company, 277 Md. 553, 356 A.2d 233 (1976) in support of the proposition that knowledge of a dangerous condition may be imputed to a plaintiff when the supporting factual predicate is so "distinct, prominent and decisive" that reasonable minds could not differ with respect to its message. On the other hand, when the factual predicate is not unequivocal but emits permitted inferences in different directions, then a case of contributory negligence that satisfies the burden of production is not necessarily a case of contributory negligence as a matter of law. Id. at 563.

In the instant case, there was no direct evidence that the Plaintiff was aware that the floor was wet. However, the Court focused on whether the evidence permitted the inference that the Plaintiff should have been aware of the condition of the floor, given her proximity to the "Wet Floor" sign and the yellow mop bucket to where she fell. The Court also raised the question of who is entitled to draw such an inference — the Judge or the Jury.

The Court found that the existence of one "Wet Floor" sign at the entrance of the market was insufficient to warn customers of the wet condition of the floors throughout the store. But what about the yellow mop bucket right next to the spot where the Plaintiff fell? If reasonable minds could not differ that the evidence demonstrated (1) that the Plaintiff actually saw the yellow mop bucket, and (2) that observation communicated the message that the aisle floors were wet, then a finding of contributory negligence as a matter of law would be appropriate.

The Court cited a string of cases which held that “such failures to observe and to avoid are generally deemed to be questions of fact left to the jury.” G.C. Murphy Co. v. Greer, 75 Md. App. 399, 403 (1988); see also Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552, 558 – 59 (1957). Here, the inference that the Plaintiff must have seen the mop bucket was permitted even though she testified that she did not see it. However, that inference was for the jury to make, not the judge. With respect to the message communicated by that mop bucket, the message that the floor was recently mopped, and therefore wet, was one such conclusion that could have been drawn. On the other hand, another conclusion could be that the mop bucket was placed there in advance, waiting for the arrival of an employee to mop the aisle.

        Given the fact that multiple inferences were permitted, when considered in the light most favorable to the Plaintiff, a genuine dispute of material fact existed. Since reasonable minds could have differed as to whether the Plaintiff was put on notice that the floors were wet, the Court concluded that summary judgment on the issue of contributory negligence was not appropriate. Although the evidence permitted a finding of contributory negligence, that finding was for the jury to make and not the judge.

        - John K. Thompson, Associate Attorney

Wednesday, March 16, 2022



Maryland Court of Appeals Clarifies 

Firefighter’s Rule & Limits Application of Schreiber

Topper v. Thomas, 2022 Md. App. Lexis 3 (Md. App. 2022)

Earlier this year, the Maryland Court of Special Appeals issued a decision clarifying the “firefighter’s rule,” which bars firefighters and police officers injured in the course of their duties from suing individuals whose actions caused them to respond to the scene. Simply put, the very nature of their jobs limits their ability to sue tort-feasors for work-related injuries. The exception to this rule occurs when firefighters and officers suffer either injuries after the initial period of the risk has surpassed or injuries that were not reasonably foreseeable as a part of the anticipated risk they would face.

In February 2017, Deputy Kassondra Topper responded to a motor vehicle collision where the at-fault driver had rear-ended another driver. At the scene of the accident, Deputy Topper requested the at-fault driver move his vehicle because he was blocking other travelling vehicles. As he was attempting to move his vehicle, he seemingly lost control and in order avoid colliding with another vehicle in front of him, he swerved to the side, colliding with Deputy Topper instead. Deputy Topper filed a complaint against the driver’s estate to recover for the injuries and damages that she suffered. The trial court granted summary judgment to the estate finding that because the accident that injured Deputy Topper occurred during an incident she had responded to, the firefighter’s rule barred her from recovery.

Deputy Topper appealed, arguing that her case fell under the exception to the firefighter’s rule pursuant to Schreiber v. Cherry Hill Constr. Co., Inc., 105 Md. App. 462 (1995). In Schreiber, a state trooper had responded to the scene of a motor vehicle collision near a construction site, where another trooper had set up flares to create a safety zone. While the trooper was responding to the accident, a driver uninvolved in the initial collision lost control of her vehicle and struck the trooper in the safety zone. The Schreiber Court held that the firefighter’s rule did not bar the trooper from recovery because it was unforeseeable that the trooper would be struck by a car while responding to an accident. Likewise, Deputy Topper argued that her being struck while responding to an accident was also unforeseeable and similar to the situation in Schreiber.

The Court of Special Appeals, affirming the trial court’s  judgment, distinguished this case from Schreiber, finding that Deputy Topper’s arrival at the accident scene, facilitating exchange of insurance information, and ensuring the safety of the scene by directing traffic to accommodate other drivers, is what caused her injury--and therefore, because her injury arose from the initial collision to which she responded, her injuries were a foreseeable risk. To the contrary, this Court noted that in Schreiber, the trooper’s injuries did not result from the accident that she had been investigating, but an uninvolved driver losing control of her vehicle as a result of the safety flares and construction zone. Therefore, the cases were distinguishable.

The Court’s decision is notable because it creates a standard that an officer responding to a car accident and accidentally injured by the involved parties is a foreseeable risk of her duties, whereas an officer who is struck by an uninvolved party to an accident is seemingly unforeseeable, especially if she can point to other contributing circumstances that caused the second accident. 

- Rima Kikani, Associate Attorney

Sunday, March 13, 2022



The Maryland Court of Special Appeals analyzes Assumption of the Risk, Battery, and Summary Judgment Regarding Injuries Sustained by a Fan at a Ravens Game.

Callinan v. NFL, No. 994, 2021 Md. App. LEXIS 1121 (Spec. App. Dec. 23, 2021)

In November 2015, Paulina Callinan was attending a football game between the Baltimore Ravens and the San Diego Chargers at M & T Bank Stadium. She had entered the game with a ticket that contained the following language on the back “Ticket holder assumes all risks incident to the game or related events, including the risk of lost, stolen or damaged property or personal injury of any kind.” She was seated 6 rows behind the sideline and was recording the players on her cellphone as they ran out from the tunnel. Around this time, Ravens punter, Sam Koch was practicing punts on the sideline. Koch then kicked an errant punt which struck Callinan in the face.

            Callinan filed suit in the Baltimore City Circuit Court alleging negligence against the Ravens, Koch, and the NFL. The Ravens and Koch then moved for Summary Judgment on two grounds claiming that as a spectator, Callinan assumed the risk of being struck by an errantly kicked football during a game, and that the exculpatory clause in which was printed on the back of her tickets barred her claims as a matter of law. Callinan then filed an amended complaint alleging battery against Koch. The Defendants moved to dismiss the battery count on the grounds that it was a claim in which relief could not be granted. The Circuit Court held a motions hearing in which all parties participated in oral argument for both motions. The Court then granted the motion to dismiss and the motion for summary judgment. The Court stated that there were no disputes as to any material facts, Callinan assumed the risk as a matter of law, the exculpatory clause was valid and did not fall into any of the exceptions to enforceability under Maryland law, and the complaint failed to plead facts showing that Koch intended to harm Callinan.

            Callinan then appealed stating that the circuit court erred three ways: 1. in dismissing the battery claim against Sam Koch; 2. in ruling that Callinan assumed the risk; and 3. that the Circuit Court erred in not allowing additional discovery.

            The Court of Special Appeals first addressed the dismissal of the battery claim. The Court stated that battery occurs when one intends a harmful or offensive contact with another person. In this matter, Callinan failed to allege facts sufficient to show that Koch intended to case harmful or offensive contact. The Court also found that Callinan’s alleged facts did not show that Koch had a general intent to unlawfully invade another’s physical wellbeing though offensive or harmful contact. The Court therefore did not err in dismissing the battery claim.

            The second question before the Court examined whether Callinan had undertaken an “assumption of risk.” The Court analyzed the three elements of assumption of the risk: 1. knowledge of the risk; 2. appreciation of the risk; and 3. voluntary exposure to the risk. The Court ultimately found that Callinan had full knowledge of the likelihood of a football flying into the stands, which she would appreciate as a football fan, and that she voluntarily attended the game.

            The final question before the Court was if Callinan was entitled to additional discovery before the Court’s ruling on the motion to dismiss and motion for summary judgment. The Court ruled that she was not entitled to any additional discovery in the matter, upholding the decision of the trial court. The Court of Special Appeals found that there was no dispute as to any material fact, that Callinan assumed the risk as a matter of law, and the Court did not err in denying Callinan’s request to stay that decision pending further discovery.

 

Kari Martiniano, Law Clerk

Sunday, February 20, 2022

Partner Adam Sampson admitted to the Federation of Defense & Corporate Counsel


Congratulations to Partner Adam Sampson for his admission to the Federation of Defense & Corporate Counsel (“FDCC).  The FDCC, a membership of attorneys focused on corporate and defense litigation, carefully selects only those attorneys who have distinguished themselves professionally and earned a trustworthy reputation among their peers in the legal community.  Mr. Sampson is one of 27 lawyers in Maryland invited to join.

Thursday, January 6, 2022

Congratulations to Benjamin Beasley on his promotion to Partner at RSRM!

 


Benjamin Beasley joined RSRM as a law clerk in 2013. He graduated from the University of Baltimore School of Law in 2014, where he served as Managing Editor of the University of Baltimore Law Forum, interned with the Honorable L. Robert Cooper and the Honorable Marcus Z. Shar, and was a co-captain and competing member on the National Trial Competition Team and the Phi Alpha Delta Mock Trial Team. 

After law school, Mr. Beasley clerked for the Honorable Mickey J. Norman and later served as a trial attorney with a litigation firm in Baltimore where he prosecuted personal injury matters. He returned to RSRM in 2016 where he has served as an Associate Attorney. 

Mr. Beasley has litigated hundreds of matters throughout Maryland District and Circuit Courts, as well as matters in the United States District Court for the District of Maryland. He has been an asset to the firm in his dedication to his clients and the practice of law. We are proud to have him as a partner at RSRM. 

Wednesday, January 5, 2022

Genuine disputes, material facts, and Maryland Court’s standard for granting Summary Judgment.

 Flats 8300 Owner, LLC v. The Donohoe Companies, Inc, case no.: 482617V.

    Recently, the Circuit Court for Montgomery County denied a Motion for Summary Judgment because there was a genuine dispute regarding a material fact. The court was required to examine whether the statute of limitations had expired in a breach of contract claim regarding construction litigation.

    In 2013, Stonebridge Associates, Inc. (“Stonebridge”) contracted with The Donohoe Companies, Inc. (“Defendant”) to construct a residential apartment complex. Defendant subcontracted the responsibility for purchasing and installing the heating, ventilation, and air-conditioning (“HVAC”) system to a third party. The HVAC was to be serviced by Havtech Solutions and Havtech, LLC. On March 31, 2016, Flats 8300 Owner, LLC (“Plaintiff”) purchased the residential apartment complex.

    On June 24, 2020, Plaintiff filed a Complaint against Defendant and others, alleging the Defendants breached its contract and breached express warranties. On July 1, 2021, Defendant filed a Motion for Summary Judgment, asserting that Plaintiff’s claims accrued on July 31, 2015, when Plaintiff was first put on notice of the defective HVAC system, thus Plaintiff’s claims were barred by the statute of limitations.

    Defendant’s argument was that Stonebridge was made aware of defects of the HVAC system in 2015, which was evidenced by the disapproval of Stonebridge regarding the installation of the HVAC system. In addition, Defendants pointed to its expert who concluded that had Plaintiff investigated the complaints from 2015, Plaintiff would have been made aware of the defective HVAC system.  

    The Circuit Court of Montgomery County was not persuaded by Defendant’s argument. The Court first reaffirmed the long standing holding that a Plaintiff’s claims begin to run when she knew or should have discovered the defect. Further, the Court held that in construction litigation cases, knowledge of a construction defect starts the statute of limitations.

    The Court also held that there was a genuine dispute regarding a material fact because Stonebridge asserted that it was not aware of any specific defect to the HVAC system. The HVAC was considered “defective” because of nitrogen brazing. Stonebridge alleged by affidavit that it had no knowledge of nitrogen blazing, but rather, general complaints regarding the process of the installation of the HVAC system. The Court relied heavily on Stonebridge’s affidavit and found there was a genuine dispute regarding whether Plaintiff had “notice” and if the statute of limitations had run.

    This Opinion is valuable because it should be a guide to practicing attorneys that Summary Judgment will typically only be granted when there is not a genuine dispute of material fact. This case illustrates what evidence Courts in Montgomery County, Maryland will rely upon when granting or denying summary judgment. A future litigator in this jurisdiction should only file a Motion for Summary Judgment when it is clear as day there is no genuine disputes regarding a material fact.

-Brandon James, Associate Attorney