Personal Injury

Maryland Court Examines a Manufacturer’s Duty to Warn Household Members in Asbestos Case

June 2, 2017 | by Foran & Foran, P.A.

One of the requirements to establish a negligence claim is a duty on the part of a defendant owed to the victim. In a recent opinion, the Court of Special Appeals of Maryland analyzed the scope of the duty to warn as it applies to a manufacturer of asbestos-containing products. In the case, the circuit court granted summary judgment against the plaintiffs, who subsequently appealed the matter.

In this case, the plaintiff’s father worked in powerhouses where the defendant installed insulation and cement that contained asbestos. The installation of these products created dust-containing asbestos fibers that would accumulate on the father’s clothing. From 1962 to 1972, the plaintiff lived in a small trailer home with his parents, in close contact with the clothing and the laundry machine that washed the clothing. In 2014, the plaintiff was diagnosed with mesothelioma. The plaintiffs brought negligence and strict liability claims against the business that installed the asbestos-containing products, based on a failure to warn.

The defendant relied on a previous case, Georgia Pacific, LLC v. Farrar, in which the Maryland Court of Appeals held that a manufacturer or distributor of an asbestos product did not owe a duty to warn the household member of a worker-bystander present at facilities where the product was installed prior to 1972, since there was no practical way that a warning could have avoided the danger to the household member. The plaintiffs argued that the Farrar holding did not apply because in the present case, the father had access to commercial laundering facilities that specialized in cleaning industrial clothing, there were changing rooms at his workplace, and he would have heeded a warning of the dangers of household exposure.

Maryland Court Reviews Settlement Agreement in Car Accident Case

June 1, 2017 | by Foran & Foran, P.A.

Settlement negotiations can be an important part of resolving a personal injury claim against a negligent driver or insurance company. The Court of Special Appeals of Maryland recently addressed some of the issues surrounding settlement agreements in Ward v. Lassiter (Md. Ct. Spec. App. Jan. 13, 2017). In Ward, the underlying case arose from an automobile accident, in which the plaintiff filed suit against the defendant. The trial date was canceled after the parties orally agreed to settle the case, but another dispute arose when the plaintiff refused to sign a written agreement.

In Ward, the plaintiff agreed to accept $7,000 during the settlement negotiations, although the specific terms of the release or indemnification were not discussed. The defendant’s counsel emailed a proposed settlement agreement, to which the plaintiff’s attorney made several revisions before returning it. In particular, the plaintiff’s attorney deleted a provision that released the defendant from liability for future medical expenses and changed a clause that indemnified the defendant from any cause of action by limiting it to $7,000. The defendant did not agree to the revisions, and the parties remained at an impasse regarding the terms and language of the written settlement.

Maryland Plaintiff Wins Appeal in Lead Paint Case as Court Reverses Summary Judgment Order

June 1, 2017 | by Foran & Foran, P.A.

To establish a successful negligence claim, the plaintiff must present evidence in support of her case. The plaintiff may even have to argue her claim before trial, in an opposition to a motion for summary judgment, as in Davis v. Realty (Md. Ct. Spec. App. May 25, 2016). In Davis, the plaintiff filed suit against several defendants, alleging that she suffered lead paint poisoning while residing in the defendants’ properties as a child. The defendant-owners of one such property filed a motion for summary judgment, arguing that the plaintiff failed to provide any evidence of flaking, chipping, or peeling paint while she lived there. The trial court granted the motion, and the plaintiff appealed.

In Davis, the defendants supported their motion for summary judgment with the deposition of the plaintiff’s mother. In that deposition, the plaintiff’s mother was never asked, nor did she volunteer, any testimony as to the flaking, chipping, or peeling paint in the house at issue. When asked generally about the condition of the house, she stated that the walls had been freshly painted. In response to the defendants’ motion, the plaintiff attached an affidavit of her mother. The plaintiff’s mother stated in her affidavit that although the house at issue was freshly painted, the paint was very lumpy on the walls, and there was chipping, peeling, and flaking paint on the doors, doorframes, baseboards, steps, banister, and handrails.

The defendants moved to strike the affidavit pursuant to Rule 2-501(e), which requires the court to strike any part of an affidavit to the extent that it contradicts any prior sworn statements of the witness. The plaintiff argued that the testimony was not contradictory, since her mother had lived in Baltimore City all of her life and regarded chipping, peeling, and loose paint as a normal thing to see in the kind of house she could afford to rent. Furthermore, she had not been specifically asked about flaking, chipping, or peeling paint.

Maryland Bicyclist Killed by Tractor Trailer, Wife Pursues Appeal in Wrongful Death Action

April 25, 2017 | by Foran & Foran, P.A.

In a recent personal injury case, the Court of Special Appeals of Maryland explained aspects of liability and duty concerning the participation of a private entity in the design and construction of government roadways. The plaintiff filed a wrongful death action against a cement company, the county, and the state of Maryland after her husband was killed by a tractor trailer. When the trial court dismissed the plaintiff’s claims against the defendants, the plaintiff brought her appeal to the higher court.

In this case, the plaintiff’s husband was cycling on a state road designated as a bicycle route. He entered with the right of way into an intersection that did not have any traffic light. A tractor trailer leaving a cement plant entered the intersection at the same time, striking the plaintiff’s husband. In her lawsuit, the plaintiff alleged that the intersection was negligently designed and constructed to funnel the bicycle lane into the acceleration lane for vehicles turning right onto the state road. Although the cement company did not own the tractor-trailer involved in the accident, the plaintiff claimed that the cement company owed a duty in tort with regard to its participation in the design and construction of the intersection.

Maryland Court Reviews Car Accident Appeal After Jury Finds Both Parties Negligent

February 9, 2017 | by Foran & Foran, P.A.

In some cases, negligence on the part of both drivers may contribute to a collision that causes injuries. In Dailey v. Mackey (Md. Ct. App. May 3, 2016), the Court of Special Appeals of Maryland reviewed a negligence claim arising out of an automobile accident. After a jury found both the plaintiff and the defendant negligent, Maryland’s contributory negligence rule barred all recovery. The plaintiff filed an appeal to the higher court, which considered the case.

In Dailey, the defendant rear-ended the plaintiff’s disabled vehicle after it shut down on the interstate. Although the plaintiff attempted to move his vehicle off the road, it did not have enough momentum to reach the shoulder, and the defendant struck his car from behind. The parties disputed whether the defendant’s vehicle still had its lights on after the engine lost power, and whether the defendant had activated the hazard lights. The plaintiff sued the defendant, and the defendant counterclaimed, each contending that the other was negligent. After a trial on liability, the jury determined that both parties were negligent. On appeal, the plaintiff argued that the defendant did not present sufficient evidence of the plaintiff’s negligence to permit sending the question of contributory negligence to the jury.

Negligence is defined as failing to act as an ordinarily prudent person would under the circumstances. A claim based on negligence requires proof of certain elements: the defendant owed a duty to the plaintiff to exercise reasonable care, the defendant breached that duty, and the defendant’s breach was the actual and proximate cause of the damages suffered by the plaintiff. In Maryland, a plaintiff cannot recover compensation even from a negligent defendant if the plaintiff was also negligent, although there are some exceptions. In the case of a sudden emergency, such as the one that befell the plaintiff when his car lost power, the driver must still exercise ordinary care.

Maryland Court Considers Doctrine of Last Clear Chance in Car Accident Appeal

February 9, 2017 | by Foran & Foran, P.A.

In some personal injury cases, a plaintiff may still prevail against a careless driver even if the plaintiff was also partially at fault for the accident. The Court of Special Appeals of Maryland addressed this issue when reviewing a negligence claim on appeal in Stevenson v. Kelley (Md. Ct. Spec. App. Dec. 15, 2016). In Stevenson, the plaintiff filed a lawsuit after he was struck by a vehicle driven by the defendant. After a trial, the jury found that the defendant was negligent and proximately caused the plaintiff’s injuries. It also found, however, that the plaintiff was contributorily negligent. The plaintiff appealed, arguing that the court should have instructed the jury on the doctrine of last clear chance.

In Maryland, the law has adopted the principle of contributory negligence in civil claims. Pursuant to this principle, even if the defendant’s misconduct may have been the primary cause of the injury, a plaintiff cannot recover compensation if the proximate and immediate cause of the harm can be also traced to the plaintiff’s lack of ordinary care and caution. However, there is one exception to this rule. Under the doctrine of last clear chance, the plaintiff may recover if the defendant had a fresh opportunity to avoid the consequences of the plaintiff’s carelessness. The doctrine only applies if the acts of the parties were sequential, and the defendant had a chance to avoid the injury after the plaintiff acted negligently. It is not applicable when the plaintiff’s negligence is the last negligent act, or when the negligence of the parties occurs at the same time.

In Stevenson, the plaintiff was directing traffic around a motor vehicle collision that had occurred on the roadway. The defendant drove on the shoulder of the road to avoid the stopped traffic and take the next exit. The plaintiff attempted to stop the defendant from driving on the shoulder by waving his arms and walking over to his vehicle. Although the defendant slowed down, the plaintiff was struck by the defendant’s bumper on his right knee.

Maryland Police, Nightclub Sued for Negligence After Fatal Shooting

January 25, 2017 | by Foran & Foran, P.A.

In some cases, a plaintiff may allege that his or her injuries were caused by the negligence of multiple defendants. A recent appeal in a wrongful death action, for example, involved claims against the Baltimore Police Department, a nightclub, and an adjoining parking lot’s owner. In Torbit v. Baltimore City Police Dep’t (Md. Ct. Spec. App. Nov. 16, 2016), two people were killed and several others were injured when police responded to an active shooter situation outside a nightclub. The surviving family members of the victims filed a negligence lawsuit afterward. The trial court ruled in pre-trial motions that the police were not grossly negligent in firing their guns at the shooter, nor were the nightclub defendants liable for actions prior to the shooting.On appeal, the plaintiffs argued that the police department’s motion to dismiss was granted in error. In a negligence action, a plaintiff must allege facts demonstrating that the defendant was under a duty to protect the plaintiff from injury, that the defendant breached that duty, that the plaintiff suffered an actual injury or loss, and that the loss or injury proximately resulted from the defendant’s breach of the duty. In Maryland, police do not owe an enforceable tort duty to the public at large. Plaintiffs can only prevail if they prove the existence of a special relationship, showing that the local government or police officer affirmatively acted to protect the victim or a specific group of individuals, thereby inducing the victim’s reliance upon the police protection.

In Torbit, the plaintiffs alleged that the police department failed to establish adequate policies, rules, and guidelines, and it failed to adequately train and prepare its employees in operational realities related to crowd control. The appeals court explained that a failure to act, by definition, cannot satisfy the requirement of an affirmative act. As a result, since there was no affirmative act to create such a relationship, the police officers did not owe the plaintiffs a duty of care. Accordingly, the court affirmed the dismissal of the negligence claim against the police department.

Maryland Plaintiffs Defeat Summary Judgment Order on Appeal in Personal Injury Case

January 24, 2017 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland reviewed a personal injury claim involving exposure to lead-based paint, ultimately ruling in favor of the plaintiffs. In Murphy v. Ellison (Md. Ct. Spec. App. Aug. 23, 2016), the plaintiffs sued the owners of a building in which they resided from 1992 through 1995. They alleged that the defendants failed to keep the property free of any flaking, loose, or peeling lead-based paint, and the lead-based paint exposure resulted in permanent brain injuries to their children. The circuit court granted the defendants’ motion for summary judgment, finding that the plaintiffs had failed to produce direct or circumstantial evidence of any lead-based paint hazards at the property. The plaintiffs subsequently brought their appeal before the higher court.

In Baltimore, the housing code establishes minimum standards for building maintenance, and it provides that all walls, ceilings, woodwork, doors, and windows must be free of any flaking, loose, or peeling paint to protect children from lead-based paint poisoning. In negligence actions based on the housing code that involve lead exposure, as in Murphy, the plaintiff must show that the defendant violated the code and that the defendant’s negligence was a substantial factor in causing the victim’s injury. Specifically, the element of causation requires evidence that the property at issue contained lead-based paint, and it was a substantial contributor to the victim’s exposure to lead. This can be proven by either direct or circumstantial evidence. In a typical circumstantial case, as in Murphy, the plaintiffs attempt to show that they had elevated blood-lead levels while living at the property, and there were no other reasonably probable sources of their exposure to lead.

Maryland Plaintiff Pursues Negligence Claim Against General Store and Ice Cooler Company

December 23, 2016 | by Foran & Foran, P.A.

People who are hurt on the property of another business or individual may be able to hold a negligent party responsible for their injuries, as long as that party owed them a duty of care. In Woods v. Dolgencorp, LLC (D. Md. Oct. 21, 2016), the plaintiff suffered injuries after tripping on a buckled mat in front of an ice cooler at a general store. The plaintiff filed a personal injury claim against the general store as well as the business that provided and maintained the ice cooler, alleging it was negligent in properly placing the mat. The ice cooler defendant filed a motion for summary judgment, arguing that it did not owe a duty of care to the plaintiff because it did not own, control, or manage the store at which the accident occurred. The U.S. District Court for the District of Maryland heard the motion.

In Maryland, the elements of a negligence claim are: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered an actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty. In premises liability actions, the defendant’s duty is dependent on the status of the plaintiff on the property. In Woods, as a patron of the store, the plaintiff was an invitee on the premises. An owner is responsible for harm caused by a natural or artificial condition if the owner knew about or could have discovered the condition through the exercise of reasonable care, or the owner should have expected that invitees would not discover the danger or would fail to protect themselves against it, or the owner invited entry upon the land without making the condition safe or giving a warning.

Maryland Victim Pursues Negligence Claim in U.S. District Court After Escalator Accident

December 7, 2016 | by Foran & Foran, P.A.

In some lawsuits, plaintiffs can seek to hold careless business owners responsible for their negligence. In a recent case, Reyen v. Jones Lang Lasalle Americas, Inc. (D. Md. Sept. 7, 2016), an injured plaintiff filed a negligence claim against the owner of a bus company and the property manager of the bus station after she fell on an escalator. The matter was brought in the U.S. District Court of Maryland, which decided a motion for summary judgment filed by the defendants.

In Reyen, the plaintiff purchased a bus ticket from the defendant to travel from New York to Virginia on an itinerary with several bus changes. Due to a disability that required her to walk with a cane, the plaintiff notified the bus company in advance that she would need help with moving her luggage and getting on and off the buses. The bus company indicated that she would have assistance walking from one bus to the next. During one of the scheduled stops, the plaintiff looked for an elevator she could use but was unable to find one at the station, although they were in fact available. The plaintiff felt that she had no other choice but to ride an escalator, and as she took a step onto it, she fell backwards and sustained injuries.

A plaintiff alleging negligence must prove the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the injury. Generally, common carriers owe different standards of care to passengers and non-passengers. For passengers, common carriers must exercise reasonable care under the circumstances, including protecting passengers against assault, interference with the peaceful completion of their journey, and in certain situations, negligent acts of third parties. However, a common carrier owes no special duty of care to non-passengers, other than the general duty to exercise ordinary care to avoid injury.