Maryland Personal Injury Blog

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 Court Decides Whether County Owes Duty to Foster Child in Wrongful Death Action

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

Injuries that are caused by the careless actions of more than one person may give rise to legal recourse against multiple defendants. In a March 17, 2017 wrongful death decision, the Court of Special Appeals of Maryland considered whether the county was liable for the death of a two-year old child in foster care. The plaintiff filed the appeal after the circuit court granted summary judgment in favor of the county.

In 2007, as a result of the county’s determination that the child was in need of assistance, the circuit court ordered that he be placed in a foster home. At the foster home, the child’s room had a window covered with venetian blinds, which were controlled by two single-tassel cords. Although the blind cords were usually hung on a nail at the top of the window, the child became entangled in the blind cords and subsequently died from strangulation in 2009. The biological mother of the child filed a wrongful death action against the county for failing to properly supervise and protect the child. The circuit court ruled that the facts did not give rise to a common law or statutory duty that the county owed to the child.

In Maryland, a negligence action requires a plaintiff to establish four elements: a duty owed by the defendant, a breach of that duty, a causal relationship between the breach and the harm suffered, and damages. Generally, government entities do not owe a tort duty to the world at-large. A government entity can be liable in tort, however, if it takes an affirmative step to create a duty. That duty can be created in two ways: (1) legally, by adopting a statute; or (2) factually, by creating a special relationship.

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 Discusses Hospital Liability and Corporate Negligence in Medical Malpractice Case

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

It is not uncommon for an injured plaintiff to bring a medical malpractice claim against more than one defendant on differing theories of negligence. In a March 21, 2017 opinion, the Court of Special Appeals of Maryland reviewed a negligence and wrongful death action brought by the surviving plaintiffs against a doctor, the hospital that employed the doctor, and the member companies of the hospital. The circuit court subsequently granted summary judgment in favor of the member companies. On appeal, the plaintiffs argued that its claims against the member companies should have been allowed to proceed under theories of general corporate negligence and apparent agency.

The decedent in the case had experienced severe chest pain and was examined by the defendant doctor at the hospital. On the next day, the doctor discharged the decedent with instructions to take medications as needed and follow up with a cardiology referral for further investigation of his condition. On the next morning, the decedent passed away. An autopsy revealed that he died from hypertensive and atherosclerotic cardiovascular disease, with significant blockages in several arteries in his heart.

The plaintiffs first argued that the member companies were liable because they breached their duty to provide emergency room protocols for the evaluation and treatment of emergency room patients with cardiac or cardiac-like symptoms. However, the appeals court pointed out that such a legal duty would be upon the hospital to ensure the patient’s safety and well-being, rather than its parent corporations, i.e., the defendants. Furthermore, a parent corporation is generally not liable for the acts of its subsidiaries, absent the piercing of the corporate veil to prevent fraud or to enforce equity.

Maryland Plaintiff Pursues Negligence and Contract Claims Against Doctor After Failed Appendectomy

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

The Court of Special Appeals of Maryland reviewed an interesting medical malpractice case on March 17, 2017 concerning a botched appendectomy. The plaintiff in the case alleged that her doctor failed to completely remove her appendix when he performed the surgery. She brought suit against the doctor for negligence and breach of contract. After the circuit court granted the defendant’s motion to dismiss her breach of contract claim, the plaintiff appealed to the higher court.

In October of 2011, the plaintiff went to the hospital complaining of abdominal pain. The defendant diagnosed her with acute appendicitis and recommended that she undergo a laparoscopic appendectomy to remove her appendix. In performing the surgery, the defendant removed most of the plaintiff’s appendix, but left the “stump” in place. The plaintiff alleged that by leaving a portion of the appendix in her body, she experienced severe pain and required an additional surgical procedure that she had performed by another doctor. She argued that the defendant was liable for breach of contract because he had a contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix.

In Maryland, the failure of a physician to exercise reasonable care and medical skill, i.e., medical negligence, is generally not governed by contract law, despite the contractual nature of the doctor-patient relationship. Rather, to establish a breach of contract claim where the facts relate to a physician’s performance of a medical procedure, the plaintiff must show that the physician made an additional promise or warranty that is separate and apart from the physician’s agreement to properly perform the procedure. The legal rationale for not imposing any contractual liability on the physician is that, when considering the unpredictability of medical results and the differences in individual patients, it would be unlikely that the physician could in good faith promise a particular outcome. Therefore, absent unique circumstances, medical malpractice cases are typically viewed under negligence law and not determined by the laws of contract.

Maryland Court of Special Appeals Allows Plaintiff to Proceed with Medical Malpractice Against Podiatrist

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

In Maryland, a medical malpractice action must be filed against a health care provider within a certain time period, or it may be dismissed. In a February 22, 2017 decision, the Court of Special Appeals of Maryland reviewed a negligence claim filed by the plaintiff against her podiatrist, which had been dismissed by the circuit court as barred by the statute of limitations.

In 2010, the defendant operated on the plaintiff to correct pain in her right foot by placing a screw near her second toe. After several follow-up visits in which the plaintiff complained of continued pain, the defendant performed a second surgery to remove the screw. When the plaintiff’s condition did not improve by June of 2011, the defendant referred her to another doctor. The second doctor diagnosed her with a bunion deformity that could require a third surgery and significant recovery period. In August of 2014, the plaintiff filed a medical negligence claim against the defendant. The circuit court granted the defendant’s motion for summary judgment, ruling that the statute of limitations on the plaintiff’s claim began to run in June of 2011.

In Maryland, a civil action for damages against a health care provider must be filed within the earlier of five years from the time the injury was committed, or three years of the date the injury was discovered. Under the discovery rule, the statute of limitations begins to run when the wrong is discovered, or when it should have been discovered with due diligence. Under the latter alternative, awareness is implied from knowledge of circumstances which should put a person of ordinary caution on notice.

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.

Maryland Plaintiffs Succeed in Lawsuit Against Auto Insurance Company for Coverage of Wrongful Death Claim

July 23, 2017 | by Foran & Foran, P.A.

In many car accident cases, disputes can arise regarding insurance coverage for certain types of injuries. In Kivitz v. Erie Ins. Exch. (Md. Ct. Spec. App. Apr. 29, 2016), the Court of Special Appeals of Maryland considered whether an automobile insurance policy containing a household exclusion barred the wrongful death claims of the surviving children arising out of a fatal car accident.

The driver in the case was involved in a car accident that resulted in the death of his passenger. The driver and passenger lived at the same residence but were not married. They jointly owned an automobile insurance policy issued by the defendant. The insurance policy contained a household exclusion, which excluded coverage for the passenger’s own injury and death. After the fatal accident, the passenger’s adult children brought their own wrongful death claims against the insurance company, seeking to recover compensation for their mental anguish and loss of consortium. The insurer declined coverage, asserting that the children’s claims were derivative of the passenger’s claims and thus were barred by the household exclusion.

The policy at issue covered the driver’s legal obligations for damages for personal injuries resulting from a covered occurrence. The policy excluded coverage for personal injury to the policyholders themselves, or to adults who resided in the same household as a policyholder. The term “personal injury” was included in the definition of “bodily injury” under the policy. Bodily injury was defined as physical harm, sickness, or disease including mental anguish, care, loss of services, or resulting death.

Maryland Court Identifies Definition of Elevated Blood Lead Level for Negligence Claims

July 23, 2017 | by Foran & Foran, P.A.

Lead exposure continues to be an ongoing problem in communities throughout Maryland. The Court of Special Appeals of Maryland recently considered a lawsuit involving lead-based paint in a February 9, 2017 opinion. The plaintiff filed a negligence claim alleging that she suffered permanent injuries from exposure to lead paint as an infant while she lived at the defendant’s property. The defendant filed a motion for summary judgment, arguing that the plaintiff could not produce reliable evidence that she ever had elevated blood lead levels while she lived there. The trial court granted summary judgment against the plaintiff, who subsequently appealed.

The defendant based its argument solely on the definition of the term “elevated blood lead,” as provided in the Reduction of Lead Risk in Housing Act (Lead Paint Act). Under that definition, the capillary blood lead test performed on the plaintiff in December 1994 while she was living at the defendant’s property was invalid. The plaintiff argued that the definition relied upon by the defendant was applicable only to cases brought under the Lead Paint Act, and it had no application to the claims she filed, which alleged common law negligence and violations of the Housing Code and Consumer Protection Act. Under her claims, she continued, the December 1994 test could be considered, as well as other elevated blood lead level tests that she had taken as a child.

In support of her negligence claims, the plaintiff provided the testimony of her retained expert, who concluded that lead exposure from the defendant’s property was a substantial factor that caused or contributed to her elevated blood lead levels. The expert also opined that those elevated lead levels caused the plaintiff to suffer a neurological disorder and learning difficulties, and it lowered her IQ. In reaching his opinion, the expert relied on the accuracy of blood tests taken in December 1994 and March 1995. In deciding the defendant’s summary judgment motion, the trial court ruled that, under the Lead Paint Act definition, the December 1994 test was invalid and therefore could not be considered in determining whether the plaintiff’s blood contained elevated lead levels.

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.