Personal Injury

Maryland Plaintiff Defeats Summary Judgment Motion in Premises Liability Case Against Department Store

October 13, 2016 | by Foran & Foran, P.A.

Premises liability law holds a property owner accountable for injuries that occur on that individual’s or entity’s property. Victims often bring a personal injury claim alleging negligence on the part of the owner, as the plaintiff did in Watson v. J.C. Penney Corp., Inc. (D. Md. Nov. 30, 2015). In Watson, the plaintiff was visiting the defendant’s store when she fell shortly after walking inside. The defendant moved for summary judgment, and the motion was considered by the U.S. District Court, applying Maryland law.

In Maryland, a property owner owes a duty to an individual who comes in contact with the property, the scope of which is dependent upon the individual’s status. In Watson, the plaintiff was a customer in the store for a business purpose and thus had invitee status. The defendant therefore had a duty to use reasonable and ordinary care to keep its premises safe and protect against an unreasonable risk of injury that the plaintiff would be unlikely to perceive in her exercise of ordinary care. When, as in Watson, the fall was caused by a foreign substance on the floor, the burden is on the plaintiff to produce evidence that the defendant created the dangerous condition or had actual or constructive knowledge of its existence.

In Watson, the plaintiff testified that after she fell, she noticed a film of slippery, soapy residue covering the entire floor. After reviewing the evidence, the court found that the plaintiff’s declarations could not prove that the defendant had actual knowledge that the floor was hazardous or that it was aware of the residue prior to the plaintiff’s fall. Nevertheless, the court explained that constructive knowledge may be imputed to a defendant if the plaintiff can demonstrate the dangerous condition existed for a sufficient period of time to permit the defendant, exercising reasonable care, to discover it. In Watson, the court ultimately found that the plaintiff could not establish constructive knowledge, since the residue on the floor was not readily apparent, and employees may not have observed the condition on a day that was during the height of the Christmas shopping season.

Maryland Jury Finds Defendant Not Cause of Collision Between Plaintiff and Parked Vehicle

October 12, 2016 | by Foran & Foran, P.A.

In a recent car accident case, the Court of Special Appeals of Maryland reviewed a jury verdict returned in favor of the defendant. In Lewin v. Balakhani (Md. Ct. Spec. App. Aug. 17, 2016), the defendant was stopped over the median line with the intention of making a left-hand turn. The oncoming plaintiff swerved to avoid a collision with the defendant’s vehicle but hit a vehicle that was parallel-parked on the shoulder of the road. The plaintiff brought a negligence claim against the defendant, alleging that her violation of the left-hand turn statute was the proximate cause of the accident. After a trial, the jury considered the evidence and found that the defendant was not negligent. The judge subsequently denied the plaintiff’s motions for judgment notwithstanding the verdict, and the plaintiff appealed.

On appeal, the court explained that the violation of a statute alone will not support an action for damages, unless there is legally sufficient evidence to show that the violation was a proximate cause of the injury complained of. Instead, the plaintiff must introduce evidence to afford a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the injury. In Lewin, although the plaintiff presented evidence that the defendant violated a traffic law, the defendant rebutted with evidence that her conduct did not cause the subsequent collision that occurred between the plaintiff and the parked vehicle. In addition, a witness testified that he did not see the plaintiff attempting to stop before the collision. As a result, the court ruled that the evidence was sufficient for the trial court to properly deny the plaintiff’s post-judgment motions.

Maryland Jury Denies Compensation for Passenger Involved in Drunk Driving Accident

October 9, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland addressed the legal concept of assumption of risk in a recent car accident case involving intoxicated driving. In Evans v. Shores (Md. Ct. Spec. App. Sept. 8, 2016), the plaintiff was aware the defendant had been drinking when she got into his truck. The defendant crashed the vehicle into a ditch, injuring the plaintiff. The plaintiff brought suit against the defendant for her injuries. Following a trial, the jury found that the plaintiff assumed the risk of her injuries when she agreed to ride with him. The plaintiff subsequently appealed.

To establish a negligence claim in Maryland, the plaintiff must prove that the defendant owed her a duty of care, the defendant failed to adhere to that duty, the plaintiff was injured as a result, and the plaintiff suffered damages. However, if the plaintiff was also negligent in causing her injuries, she may be barred from recovery. Similarly, if the plaintiff agreed to expose herself to the risk of danger, she may not win in a negligence claim.

The test in determining voluntary assumption of the risk is whether there was an intentional and unreasonable exposure to danger, which the plaintiff either knew or had reason to know. Generally, a passenger is not negligent in riding with an intoxicated driver if she is unaware he is intoxicated, or she does not notice any facts that would arouse the suspicions of a person of ordinary prudence. Whether a plaintiff was contributorily negligent in entrusting her safety to the driver is typically a question submitted to the jury.

Maryland Court Finds Plaintiff’s Expert Failed to Establish Exclusivity of Lead-Based Paint Exposure

October 8, 2016 | by Foran & Foran, P.A.

In a recent opinion, the Court of Special Appeals of Maryland reviewed a lower court’s decision granting summary judgment against the plaintiff in a lead paint exposure case. In Carter v. Hous. Auth. of Baltimore City (Md. Ct. Spec. App. Sept. 8, 2016), the plaintiff brought a personal injury lawsuit against the Housing Authority of Baltimore City (HABC) after she was found to have elevated blood-lead levels. The plaintiff alleged that her injuries related to lead-based paint exposure were sustained while she resided in an HABC-owned property from 1987 to 1992.

Although a jury found in favor of the plaintiff, that verdict was remanded after the appeals court found that the plaintiff’s expert lacked a sufficient factual basis for his opinion that the defendant’s property was the source of the lead exposure. Rather than retaining a new expert witness, the plaintiff filed a supplemental affidavit from the same expert in an attempt to rectify weaknesses in his prior affidavit. The defendant moved for summary judgment, which the trial court granted after finding that the supplemental affidavit didn’t cure the defect. The plaintiff then brought the current appeal.

Maryland Court Explains Tolling Exception for Medical Malpractice Claim of Person with Legally Appointed Guardian

October 6, 2016 | by Foran & Foran, P.A.

In some cases, a medical malpractice claim may be brought after the statutory deadline for filing if it falls under a tolling exception. One of those exceptions may allow a mentally incompetent person to bring an action after the typical filing deadlines. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., 228 Md. App. 476 (2016), the adult plaintiff suffered from severe autism and intellectual disability, and he lived in a group home operated by the defendant. In 2008, the plaintiff’s mother and sister were named as his court-appointed guardians. In 2013, after the plaintiff was injured in two separate incidents at the defendant’s group home in 2006 and 2009, his guardians brought suit against the defendant on his behalf. The defendant moved to dismiss the complaint, arguing that it was not timely filed, and the trial court granted the motion.

In general, the Maryland Health Care Malpractice Claims Act provides that a cause of action must be brought against a health care provider within three years of the date the injury was discovered, or in any event no more than five years from the date of the injury. However, in the case of a minor or a mentally incompetent person, the action must be filed within the lesser of three years or the applicable period of limitations after the date the disability is removed. In Kratz ex rel. Kratz-Spera v. MedSource Cmty. Servs., Inc., the plaintiff’s mother knew of the 2006 incident on the day it happened, and she was notified of the 2008 incident on the next morning.

On appeal, the issue for the Court of Special Appeals of Maryland was whether the appointment of a guardian of a mentally incompetent person removes the disability of that person for the purposes of applying the statute of limitations. The court ultimately held that the tolling exception preserves the legal rights of a mentally incompetent individual until a guardian is appointed. Once a guardian is appointed, and he or she gains the requisite knowledge to file a claim on the individual’s behalf, the statute begins to run.

Maryland Court Allows Plaintiff to Proceed in Lead Paint Lawsuit Against Property Owner

August 20, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a case involving a property owner’s liability for exposure to lead paint. In Christian v. Levitas (Md. Ct. Spec. App. Aug. 1, 2016), the plaintiff brought a negligence claim against the defendant after blood tests revealed elevated levels of lead while residing at the defendant’s property. The defendant filed a motion to exclude the plaintiff’s expert from testifying as to medical causation and the source of lead exposure. The trial court granted the motion to exclude, as well as summary judgment against the plaintiff due to a lack of expert testimony as to causation.

In the plaintiff’s previous appeal, the Maryland Court of Special Appeals initially affirmed the ruling, finding that the plaintiff’s expert lacked experience administering IQ tests relevant to the mental injuries the plaintiff claimed to have suffered as a result of lead paint poisoning. However, the Maryland Court of Appeal vacated the judgment and remanded for reconsideration pursuant to its holding in Roy v. Dackman, 445 Md. 23 (2015). As a result, the matter was again in front of the Court of Special Appeals.

In Christian, the plaintiff had lived for nearly two years as a toddler on the defendant’s property, which contained chipping, peeling, and flaking paint. The plaintiff’s blood lead levels were also elevated when he was living at the property. The plaintiff’s expert testified that his medical injuries had been caused by exposure to the lead-based paint at the defendant’s property. His opinion that lead-based paint was present at that property was based on circumstantial evidence of the age of the home and the presence of lead paint on the exterior of the property.

Maryland Court Orders Insurance Company to Cover Loss for Wrongful Death Claims Arising Out of Car Accident

August 17, 2016 | by Foran & Foran, P.A.

In some car accident cases, issues concerning insurance coverage can become an integral part of litigation, since individual defendants may not have the financial resources available to pay an award of damages to plaintiffs. In a relevant opinion, Weiskerger v. Paik’s Decorators, Inc. (Md. Ct. Spec. App. Apr. 29, 2016), the Court of Special Appeals of Maryland addressed the question of whether an insurance company properly denied coverage for a member of the insured’s household who died in an automobile accident. In Weiskerger, a motorist was involved in an accident that resulted in the death of his passenger, who was a resident of his household. The two adult sons of the passenger brought wrongful death claims against the motorist and the other driver, alleging that their negligence caused their mother’s death.

Seeking to determine the extent of the motorist’s insurance coverage, the motorist’s estate requested a declaratory judgment from the court finding that the policy obligated the insurance company to indemnify it for any damages assessed as a result of the son’s wrongful death claims. In turn, the insurance company denied coverage on the basis of the policy’s household exclusion, which excluded liability coverage for physical harm to the passenger and her resulting death. After the trial court found in favor of the insurance company, the motorist’s estate appealed.

Maryland courts follow the laws of contract interpretation in determining the rights of the insured under an insurance policy. That is, when the clear language of the policy is unambiguous, the court will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used. However, in Maryland, any ambiguity will be construed liberally in favor of the insured and against the insurer as the drafter of the instrument. A term in an insurance policy is considered ambiguous if, when read by a reasonable layperson, the language is susceptible of more than one meaning.

Maryland Court Addresses Contributory Negligence of Plaintiff in Car Accident Case

August 13, 2016 | by Foran & Foran, P.A.

In a recent decision, the Court of Special Appeals of Maryland addressed the issue of contributory negligence in a car accident case. In Yanes v. Mamado (Md. Ct. Spec. App. July 12, 2016), the plaintiff filed suit against the defendant and the defendant’s employer following a motor vehicle accident. At the bench trial, the parties stipulated that the defendant was negligent. The only remaining question, therefore, was whether the plaintiff was contributorily negligent in causing the accident. After reviewing the dashcam from the defendant’s van, the circuit court determined that the plaintiff was contributorily negligent and found in favor of the defendants. The plaintiff brought the subsequent appeal.

In Yanes, the defendant was driving a shuttle when he entered an intersection on a red light and turned left. When the plaintiff continued through the intersection on a yellow light without stopping, the defendant’s van struck the plaintiff’s vehicle. Although the parties agreed that the defendant was negligent in entering the intersection on a red light, the issue for the appeals court was whether the lower court erred by concluding that the plaintiff was contributorily negligent by approaching a yellow light without slowing down, or otherwise proceeding with caution.

Maryland Court of Special Appeals Sides with Plaintiff Regarding Arbitration of Wrongful Death Claims

August 11, 2016 | by Foran & Foran, P.A.

In a recent appeal, a Maryland plaintiff won her right to pursue a wrongful death claim against a nursing home after her mother died under its care. Specifically, the Court of Special Appeals of Maryland in Futurecare Northpoint, LLC v. Peeler (Md. Ct. Spec. App. July 28, 2016) addressed the issue of whether wrongful death beneficiaries are bound by a valid arbitration agreement executed by the decedent before her death. The lower court denied the defendant nursing facility’s motion to compel arbitration of the claims, and the defendant appealed.

In Futurecare, the decedent signed a contract upon her admission to the defendant’s nursing facility, agreeing to resolve any claims arising out of her care through binding arbitration. A section of that agreement also extended the arbitration to claims of the decedent’s beneficiaries and survivors and waived their right to a jury trial. After the decedent’s death, her daughter filed a wrongful death claim against the defendant for medical malpractice, which the defendant argued was subject to arbitration pursuant to the agreement.

Arbitration is a process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal (the state courts) that would be otherwise available to them. On appeal, the court cited Maryland’s arbitration statute, which provides that a written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable. The court then explained that an arbitration agreement cannot impose obligations on persons who are not parties to it and do not agree to its terms. As an exception to that rule, however, a third party may be required to arbitrate if he or she is acting in a representative capacity on behalf of a party to the agreement. For example, many causes of action that “survive” a party’s death may be brought by the decedent’s personal representative for the benefit of the estate.

Maryland Defendant Entitled to Charitable Immunity from Liability in Lead Paint Case

August 10, 2016 | by Foran & Foran, P.A.

In rare cases, a defendant may be relieved from liability due to immunity provided by law. In Ward v. Rebuilding Together Baltimore, Inc. (Md. Ct. Spec. App. June 8, 2016), the court was faced with the question of whether the plaintiff was barred from recovering from a charitable organization in a negligence claim arising out of her alleged lead paint exposure.

In Ward, the plaintiff filed a complaint claiming that she suffered from lead-based paint induced injuries due to the defendant’s disruption of paint dust during a renovation of a building in which the plaintiff lived from 1992 to 1999. The defendant raised charitable immunity as an affirmative defense and filed a motion for summary judgment, arguing that it was immune from tort liability pursuant to Maryland’s doctrine of charitable immunity. The trial court granted the defendant’s motion, and the plaintiff appealed.

Charitable immunity is a doctrine intended to protect charitable organizations from tort liability on the theory that charitable funds should not be diverted to pay tort damages awards. To establish that an organization is entitled to charitable immunity, the organization has the burden to prove that: (1) its predominant activities are charitable in nature; (2) its funds are held in trust, either expressly or by implication, for the furtherance of the charitable purpose; and (3) it has no liability insurance covering the alleged tort.