Premises Liability

Maryland Gunshot Victim Wins Claim for Insurance Coverage of Pub’s Negligence Settlement

April 22, 2018 | by Foran & Foran, P.A.

Insurance coverage can be crucial if substantial damages are awarded in a personal injury claim. In some instances, the plaintiff must undergo another court battle against the defendant’s insurance company to obtain a judgment. Guidance from an experienced Maryland premises liability attorney is particularly beneficial in cases involving insurance firms, as demonstrated in a July 27, 2017 case.

The plaintiff in the case had visited a pub to watch a basketball game. As he was opening the door to exit the pub, he was struck by a bullet. The shooter was neither apprehended nor identified. The pub and the plaintiff reached a consent judgment agreement, in which the pub admitted negligence and agreed to a settlement of $100,000 for medical expenses and noneconomic damages. Thereafter, the plaintiff made a demand on the pub’s insurance company for payment of the settlement, which was denied. The plaintiff then filed an action for breach of contract against the insurance company. The trial court ruled in favor of the plaintiff and awarded damages in the amount of $100,000. The insurance company appealed the decision to the Court of Special Appeals of Maryland.

The policy at issue contained an provision that excluded coverage for bodily injuries arising out of assault and battery. The primary issue for the court, therefore, was whether or not the shooting incident constituted a battery under the policy exclusion. The appeals court noted that there was no evidence regarding the identity of the shooter or whether the shooting was intentional or accidental. The absence of such evidence also raised the question of whether the intent of the shooter must be established to distinguish the injury from one that arises out of an accident. The court answered the question affirmatively, explaining that if evidence of intent was not necessary, virtually all bodily injuries caused by another person would be barred under the policy exclusion, including accidental injuries.

Maryland Court Reverses Summary Judgment, Enabling Plaintiff to Advance Lead Exposure Case

April 21, 2018 | by Foran & Foran, P.A.

Failing to follow procedural rules and deadlines set in a court case can result in serious consequences, including dismissal. In a November 9, 2017 Maryland lead paint case before the Court of Special Appeals of Maryland, the plaintiff sought to reverse a summary judgment entered by the trial court on her negligence claim, stemming from a missed discovery deadline.

In the case, the plaintiff alleged that she had been poisoned by lead-based paint while living in a property owned and managed by the defendants. The plaintiff had identified an expert witness to testify regarding his opinion that the defendant’s property contained lead-based paint and that the plaintiff’s exposure to that lead-based paint caused her injuries. The plaintiff had also obtained a report from an environmental testing company that found lead in the defendant’s property, but the report wasn’t completed and produced until 14 days after the discovery period closed.

The defendants moved to strike the report from evidence as untimely, and to strike the expert’s testimony on the ground that he lacked a sufficient factual basis for his opinion, i.e., the report. The trial court granted the motions to strike. The defendants then moved for summary judgment, based on the lack of expert testimony. The trial court granted the motion, denying the plaintiff any recovery for her injuries. The plaintiff then brought an appeal.

Maryland Plaintiffs Successfully Appeal Judgment in Wrongful Death Case Against Restaurant

March 23, 2018 | by Foran & Foran, P.A.

In a Maryland wrongful death action, family members of an accident victim seek compensation for the loss of their loved one. The Court of Special Appeals of Maryland recently examined the statutory time limits to bring a wrongful death claim in a September 1, 2017 case. The decedent in the case had been repairing an HVAC unit on the roof of a Maryland restaurant when he fell 20 feet, suffering fatal injuries. The decedent’s survivors filed a wrongful death action, alleging negligence and premises liability claims against the shopping center, the property management company, and the restaurant. After the circuit court ruled that Maryland’s statute of repose barred the plaintiffs’ claims, they appealed to the higher court.

In Maryland, the statute of limitations provides that a person must file a wrongful death claim arising out of premises liability within three years of the date of accrual of the cause of action. The statute of repose, however, limits that period to no later than 20 years from the date that the defective and unsafe condition of the property was available for its intended use. The statute of repose also includes four subsections that indicate situations in which the 20-year limitation would not apply. The first subsection provides an exemption when the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred, as the defendants were in the current case. The remaining three subsections relate to certain asbestos manufacturers and suppliers. These four subsections are linked by the conjunction “or.”

The question for the court on appeal was whether the “or” should be interpreted as disjunctive, indicating four separate exceptions, or conjunctive, indicating that the defendant must be in actual possession of the property as well as meet the asbestos-related requirements provided in the other three subsections. To decide the matter, the court looked at the legislative history, prior amendments to the statute, and case law describing the purpose of the statute.

Maryland Plaintiff Files Wrongful Death Action Against Gym After Husband Suffers Heart Attack

March 23, 2018 | by Foran & Foran, P.A.

In some negligence actions, a defendant’s duty of care can arise from a law enacted to protect the plaintiff and others similarly situated. In a July 25, 2017 case, the plaintiff brought a Maryland wrongful death action against a fitness center after her husband died from cardiac arrest while playing basketball there. The plaintiff alleged that the defendant had a duty to use the automated external defibrillator (AED) that it had installed at its facility, pursuant to statutory requirements.

The decedent had been playing basketball at the defendant’s facility when he suddenly collapsed. A fitness instructor employed by the defendant began to administer CPR, while other people called 911. Although the facility had an AED that was just outside the doors of the basketball court, and despite the fact that the fitness instructor had 20 years of experience in administering life support and resuscitation measures, including the use of an AED, the fitness instructor did not retrieve the AED or ask anyone to retrieve it for her. When the paramedics arrived, they were notified of the defendant’s AED and used it on the decedent, but they were unsuccessful in resuscitating him.

To prove negligence per se, the plaintiff must show the violation of a law designed to protect a specific class of persons that includes the plaintiff, and the violation must have proximately caused the plaintiff’s injury. The primary issue before the Court of Special Appeals, therefore, was whether the Maryland statute at issue prescribed a duty of care requiring the defendant to use an AED to provide cardiac defibrillation to someone who has suffered sudden cardiac arrest.

The court first looked at the language of the statute. The statute at issue was designed to encourage the installation of AEDs in places of business and public accommodation, and ensure that the devices are operable and are used by people who are properly trained to use them. The statute requires a facility with an available AED to possess a valid certificate from the EMS Board. To obtain a certificate, the facility must qualify by meeting several requirements, which the defendant in the case had done.

Maryland Plaintiff Files Negligence Claim Against Retail Store After Injury from Falling Object

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

Accidents can happen anywhere, but when they are caused by a careless person or business, the victim may be able to pursue compensation through a negligence claim. The Court of Special Appeals of Maryland decided a July 14, 2017 appeal involving a plaintiff who had been injured in a retail store. The plaintiff in the case was shopping in the defendants’ department store when a cast iron griddle fell from a bottom shelf and landed on her right foot. She brought negligence claims against the store owners, based on the legal theory of res ipsa loquitur. Following trial, the jury found in favor of the plaintiff. However, after the trial court entered a judgment notwithstanding the verdict in favor of the defendants, the plaintiff brought the current appeal.

In a negligence action, the plaintiff must present evidence tending to show that the defendant was legally responsible for her injury, although direct proof of negligence is not required. The plaintiff may instead invoke res ipsa to rely on an inference of negligence to be deduced from all of the circumstances. In Maryland, this requires the plaintiff to establish that the accident was (1) of a kind that does not ordinarily occur without negligence on the part of the defendant, (2) caused by an instrumentality exclusively in the defendant’s control, and (3) not caused by an act or omission of the plaintiff. If and when a plaintiff satisfies these three elements, res ipsa permits but does not compel the jury to infer a defendant’s negligence without the aid of any direct evidence.

On appeal, the court explained that, to satisfy the latter two elements of res ipsa, the plaintiff had the burden of proving that the falling griddle was more likely than not a result of the negligence of the defendants. The plaintiff must also demonstrate that the combined likelihood that her own negligence or that of a third party caused the griddle to fall was less than 50%. As a result, the court focused on whether there was evidence to demonstrate the defendants’ exclusive control of the griddle.

Maryland Plaintiffs Win Lawsuit Against General Contractor for Guardrail Failure That Caused Fall

August 3, 2017 | by Foran & Foran, P.A.

In many personal injury cases, the plaintiffs seek compensation for their medical expenses, lost wages, and other losses caused by the careless acts of another person or business. In an important decision issued on May 31, 2017, the Court of Special Appeals of Maryland reviewed a jury verdict that found in favor of the plaintiffs on their negligence claim against the general contractor that built their home. The plaintiff in the case was injured after a safety guardrail in his home failed, causing him to fall 12 to 13 feet onto the concrete below.

After a trial, the jury awarded the plaintiffs $1,306,700 in damages, which was reduced by the statutory cap on noneconomic damages. The defendant subsequently appealed the verdict. On appeal, one of the defendant’s primary arguments was that it owed no duty to the plaintiffs to ensure the proper construction of the guardrail because the responsibility for its construction had been delegated to its sub-contractor.

In general, Maryland follows the rule that the employer of an independent contractor is not liable for physical harm caused to another party by an act or omission of the contractor or its employees. However, there are many exceptions to this rule, most of which fall into three categories: (1) negligence of the employer in selecting or supervising the contractor; (2) non-delegable duties of the employer; and (3) inherently dangerous work.

Maryland Plaintiff Appeals Verdict in Case Involving Intentional Lead Exposure Through Government-Funded Study

July 27, 2017 | by Foran & Foran, P.A.

Businesses, as well as individuals, can be held accountable by law for injuries caused by their negligence. In a March 22, 2017 decision, the Court of Special Appeals of Maryland reviewed a personal injury case involving the plaintiff’s exposure to lead pursuant to a study conducted by the defendant. Some of the claims against the defendant were dismissed by the lower court before trial, and a jury found in favor of the defendant on all of the remaining claims. The plaintiff brought an appeal, arguing several grounds for reversal.

The defendant’s study, conducted from 1993 to 1999, was funded by U.S. Department of Housing and Urban Development grants that were provided to evaluate and reduce lead-based paint hazards in housing. The study involved research on the effectiveness of lead abatement measures in reducing lead contamination in homes, measured by the blood lead levels of minor children living in the homes that were part of the study.

A property group that, at the time, owned and managed approximately 200 low-income rental units in Baltimore City agreed to provide houses to be used for the study. The plaintiff’s mother lived in one of the units and had signed a consent form that allowed the plaintiff (with whom she was pregnant at the time) to participate in the study. Before the study commenced, the unit had tested positive for lead-based paint. The defendant and property group paid for lead remediation work to be completed in the unit, which was intended to reduce but not completely remove all of the exposure to lead. The unit did, however, pass Maryland’s post-abatement clearance standards at the time. The plaintiff’s blood lead level rose steadily from when he was 11 months to three and a half years old while living in the unit and participating in the study.

Plaintiff Appeals Decision in Personal Injury Claim Against Maryland Amusement Park

July 27, 2017 | by Foran & Foran, P.A.

In many personal injury cases, procedural rules may require the plaintiff to produce specific types of evidence to prove his or her legal claim. In an opinion released on April 17, 2017, the Court of Special Appeals of Maryland considered whether the plaintiffs could proceed with their negligence claims against an amusement park on the theory of res ipsa loquitur. The plaintiffs were injured on a river ride during a visit to the defendant’s amusement park in 2011. The incident occurred after a raft on the ride became stuck for an unknown reason and collided with the raft occupied by the plaintiffs. The matter was brought on appeal after the circuit court granted summary judgment in favor of the defendant.

Res ipsa loquitur allows a plaintiff to present a prima facie case when direct evidence of the cause of an accident is not available or is available solely to the defendant, and circumstantial evidence permits the jury to infer that the defendant’s negligence was the cause. Under the doctrine of res ipsa loquitur, the factfinder may draw an inference of negligence if the plaintiff proves three elements: (1) the plaintiff suffered an injury that does not ordinarily occur absent negligence; (2) the injury was caused by an instrumentality exclusively in the defendant’s control; and (3) the injury was not caused by any act or omission by the plaintiff. Typically, the common knowledge of jurors is sufficient to support an inference or finding of negligence on the part of a defendant. However, in some cases, expert testimony is required to establish negligence and causation.

Maryland Plaintiff Appeals Decision in Lead-Based Paint Case Against Daycare Property Owner

July 26, 2017 | by Foran & Foran, P.A.

Lead-based paint injuries are common in Maryland, and they often result in litigation against negligent landlords and property owners. In an April 5, 2017 decision, the Court of Special Appeals of Maryland reviewed a lower court’s order granting summary judgment on the plaintiff’s personal injury claim against several property owners. The plaintiff in the case brought suit against the defendants for damages allegedly caused by exposure to lead-based paint while visiting or residing at properties they owned from 1992 to 2007. The defendants moved for summary judgment, arguing that the plaintiff failed to adduce sufficient evidence that their property substantially contributed to his elevated blood levels. After the circuit court granted their motion, the plaintiff appealed.

At the time of the plaintiff’s birth through the first seven months of his life, the plaintiff and his family lived in property with chipped paint around the walls and windows, and they regularly visited another property in the same condition. Testing subsequently conducted during the lawsuit revealed that the two properties contained lead-based paint. When the plaintiff was almost three years old, he attended daycare at a property owned by the defendants, which contained chipping and peeling paint. Subsequent testing also indicated the presence of lead-based paint. The plaintiff visited the defendants’ property regularly for approximately two years. At some point, while he was still attending the daycare, he moved to another property, which contained chipping and peeling paint, but he was never tested for lead.

In Maryland, when a plaintiff alleges negligence based on a violation of a lead-based paint law, he must prove that there was a violation of the law and that the violation caused his injuries. Causation requires that the plaintiff present either direct or circumstantial evidence showing that (1) the defendant’s property was a source of the plaintiff’s lead exposure, (2) the exposure contributed to the plaintiff’s elevated blood lead levels, and (3) the plaintiff’s elevated blood lead levels substantially contributed to the injuries allegedly suffered by the plaintiff. In the case at hand, the plaintiff relied on circumstantial evidence to establish his claim. Accordingly, he had the burden to produce circumstantial evidence that, if believed, would rule out other reasonably probable sources of lead.

Maryland Court Decides Appeal Involving Pedestrian Fall on Icy, Broken Sidewalk

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

A negligence claim can arise out of any number of circumstances, including accidents that occur on the property of individuals or businesses due to their carelessness. These are specifically known as premises liability claims. In a relevant decision issued on February 23, 2017, the Court of Special Appeals of Maryland reviewed whether a lower court properly granted summary judgment against the plaintiff on his premises liability claim against a hospital.

In 2007, the plaintiff had visited the hospital to participate in a sleep study. Early the next morning, the plaintiff left the hospital and walked toward the bus stop. The plaintiff noticed that the sidewalk outside the hospital was wet with sleet, ice, and mud, but he proceeded to walk through it. He eventually reached a section of the sidewalk where, beneath the mud and slush, two concrete slabs were joined together unevenly. Unaware of the differential, the plaintiff tripped over the elevated slabs and fell, suffering a fractured leg and a broken ankle.

The plaintiff brought suit against the hospital, alleging that it had negligently breached its duty to exercise ordinary and reasonable care in maintaining the hospital grounds. The hospital contended that, although it maintained the area of the sidewalk on which the plaintiff fell, it didn’t own it or owe a duty to the plaintiff. The trial court held that since the hospital did not own the sidewalk at issue, it owed no duty of care to the plaintiff that would render it liable for his injuries. On appeal, the plaintiff argued that the hospital’s admission that it maintained the sidewalk created an issue of fact regarding its ownership. The appeals court disagreed, explaining that the hospital did not waive the issue or concede ownership of the sidewalk when it answered the plaintiff’s interrogatory.