Maryland Personal Injury Blog

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.

Maryland Court Discusses the Apparent Manufacturer Doctrine in Asbestos Case

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

In a recent decision, the Court of Special Appeals of Maryland reviewed an asbestos case involving the death of an employee from mesothelioma. In Stein v. Pfizer, Inc. (Md. Ct. Spec. App. May 31, 2016), the employee worked as a bricklayer, using asbestos-containing cement in completing projects for his employer. After the employee’s death, his family and estate brought negligence and other liability claims against several defendants, including the parent company of the cement product’s manufacturer, alleging that it was an apparent manufacturer and therefore liable for the illness and death of the employee.

In Stein, the estate argued that the defendant held itself out as a manufacturer of the asbestos-containing cement because its trademark was in advertisements and promotional materials for the product. The defendant argued that it was a separate corporation from its subsidiary, that none of the manufacturer’s employees held positions with the defendant, and that only a few of the defendant’s employees sat on the manufacturer’s board of directors. The defendant’s motion for summary judgment was granted by the trial court, which found that, under all of the circumstances, a reasonable person could not conclude from the documents that the defendant was the manufacturer of the product at issue. The plaintiffs appealed the decision.

The Court of Special Appeals examined the history and case law pertaining to the apparent manufacturer doctrine, which holds a non-manufacturer liable for a defective product based on its conduct. The court went on to note that there are three tests for determining whether an entity may be found to be an apparent manufacturer, although Maryland case law does not specify which test is to be applied. Nevertheless, the court concluded that under all three tests, the defendant would not be deemed an apparent manufacturer of the asbestos-containing cement.

Maryland Court Affirms Verdict for Plaintiff in Car Accident Case

June 15, 2016 | by Foran & Foran, P.A.

In a recent decision, the Maryland Court of Special Appeals considered whether damages were fairly awarded to an injured plaintiff based on the provided jury instructions. In Lawrence v. Henry (Md. Ct. Spec. App. May 4, 2016), the plaintiff was injured in a car accident caused by the defendant’s negligent driving. After the trial, the jury awarded approximately $49,000 in damages to the plaintiff.

The plaintiff sought review from the Court of Special Appeals, contending that the trial court erred in denying jury instructions on susceptibility to injury and aggravation of a previous condition, and in preventing the plaintiff’s counsel from arguing that his injuries were permanent. The plaintiff argued that the jury’s low award of non-economic damages indicated prejudice caused by the court’s decisions.

The Court of Special Appeals initially found that both of the plaintiff’s objections had not been preserved for review, and thus they could not be appealed. Nevertheless, the court went on to find that, even if the objection to the jury instructions was preserved for review, it would be without merit. The court explained that it considers the following factors when deciding whether a trial court abused its discretion in denying a request for a particular jury instruction: (1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given. In Lawrence, the dispute centered around whether the instructions were applicable under the facts of the case.

Maryland Court Denies Expert Medical Testimony in Negligence Claim

June 14, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently issued an opinion in a medical malpractice action involving issues of expert testimony. In Abbasov v. Dahiya (Md. Ct. Spec. App. Apr. 29, 2016), the plaintiff brought claims for medical negligence, lack of informed consent, fraud, and loss of consortium against the physician who applied her chemical facial peel. During the trial, the court ruled that the plaintiff’s medical expert could not express an opinion regarding the standard of care for the application of the chemical peel because he was not board certified in a specialty related to the defendant’s specialty, as required by the Maryland Health Care Malpractice Claims Act. The court therefore granted judgment in favor of the defendant at the close of the plaintiff’s case on her medical negligence and fraud claims. The plaintiff appealed that decision, arguing that the court erred by precluding the expert witness from testifying as to the standard of care.

In Maryland, a health care provider may be held liable for medical negligence if the plaintiff establishes that the care given by the health care provider was not in accordance with the standards of practice among members of the same health care profession, with similar training and experience, situated in the same or similar communities. In addition, any health care provider who testifies as to a defendant’s compliance with or departure from the standard of care must have practiced or taught medicine in the defendant’s specialty or field of health care, or a related field of health care to the field in which the defendant provided care to the plaintiff, within five years from the date of the alleged act. That witness must also be board certified in the same or a related specialty.

Maryland Court Evaluates Circumstantial Evidence in Lead Paint Case

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

In a recent opinion, the Court of Special Appeals of Maryland addressed the issue of whether summary judgment against the plaintiff was properly granted in a lead paint case. In Griffin v. Jontiff (Md. Ct. Spec. App. Apr. 25, 2016), the plaintiff brought a negligence claim against several defendants, alleging that she sustained personal injuries as a result of exposure to lead-based paint while residing in various properties.

In a Maryland lawsuit alleging exposure to lead-based paint, the plaintiff must show that the defendant was under a duty to protect the plaintiff from injury, the defendant breached that duty, the plaintiff suffered an actual injury or loss, and the loss or injury proximately resulted from the defendant’s breach of the duty. To prove the causation element of negligence in a lead paint case, the plaintiff must introduce evidence to establish that the property contained lead-based paint, and that the lead-based paint at the property was a substantial contributor to the plaintiff’s exposure to lead. The plaintiff may prove causation through direct evidence, as well as circumstantial evidence, as long as the circumstantial evidence creates a reasonable likelihood or probability (rather than a possibility) supporting a rational inference of causation, and it is not wholly speculative.

In Griffin, there was no direct evidence of the presence of lead-based paint in the property at issue. The plaintiff, however, argued that there was sufficient circumstantial evidence, based on the fact that she lived at the property for two years, there was no evidence of any significant environmental or other source of exposure to lead at this time, the property contained flaking and chipping paint, and her blood lead levels failed to decline at the expected rate, absent further exposure to lead. The plaintiff also presented testimony from an expert who opined that her elevated lead levels were caused by her exposure to lead in the property at issue.

Maryland Court Finds No Evidence of Dangerous Condition in Premises Liability Case

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

The Court of Special Appeals of Maryland recently ruled on an appeal in a personal injury case that was halted after the court granted a motion for judgment for the defendant at the close of the plaintiff’s evidence at trial. In Bright v. Warehouse Servs., Inc. (Md. Ct. Spec. App. Mar. 28, 2016), the plaintiff was injured while working as a forklift operator in a warehouse operated by the defendant. The plaintiff brought a premises liability action against the defendant, alleging that a defect in a loading ramp caused his forklift to drop, jolting him and resulting in a serious back injury.

The case went to trial. The plaintiff was the only witness to testify about the condition of the defendant’s loading dock. He presented testimony from two medical experts to discuss his damages, although they could not explain what caused the jolt that the plaintiff contended caused his injuries. No witness examined the ramp after the accident to investigate whether it was defective, dangerous, or in need of repair. At the close of evidence, the defendant moved for judgment pursuant to Maryland Rule 2-519. The court granted the motion, finding that the plaintiff failed to prove that the defendant knew of the defect and had the opportunity, if there was a defect, to fix it.

To prove a negligence claim in Maryland, a plaintiff must establish that the defendant was under a duty to protect the plaintiff from injury, the defendant breached that duty, the plaintiff suffered an actual injury or loss, and that loss or injury proximately resulted from the defendant’s breach of the duty. Under premises liability law, the duty of care that is owed by the owner of property to one who enters on the property depends upon the entrant’s legal status. Ordinarily, one entering onto the property of another will occupy the status of invitee, licensee by invitation, bare licensee, or trespasser. An invitee is a person on the property for a purpose related to the owner’s business, and is owed a duty of ordinary care to keep the property safe. In Bright, it was undisputed that the plaintiff was a business invitee.

Maryland Court Allows Excess Liability Insurer to Conceal Identity at Trial in Car Accident Case

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

In a recent personal injury case, the Court of Special Appeals of Maryland considered whether a trial court erred by concealing the existence of the defendant’s excess liability insurer in a trial to determine liability for a car accident. In Kiknadze v. Sonneman (Md. Ct. Spec. App. Apr. 12, 2016), the parties were involved in a car accident. The plaintiff brought a negligence action against the defendant, who was insured by Progressive, and also notified the defendant’s excess liability insurer, State Farm, of a potential underinsured motorist (UIM) claim. The trial court granted State Farm’s motion to intervene in the case and prohibited the disclosure of State Farm’s identity to the jury. After a trial, the jury awarded over $20,000 to the plaintiff, who appealed the decision of the trial court to conceal State Farm’s involvement from the jury.

In Maryland, UIM coverage is designed to provide an injured insured with resources equal to those that would have been available had the tortfeasor carried liability coverage equal to the amount of coverage that the insured purchased from his or her own insurance company. Accordingly, Maryland is a gap theory state, meaning that injured insureds may recover the difference between their UIM coverage and money received from the tortfeasor. Excess coverage, on the other hand, is another form of insurance in which the insurer is liable only for any excess amount of the judgment remaining after the primary insurer has paid up to the limit of its policy. Generally, a UIM claim is brought against one’s own insurer for breach of contract. In most cases, the trial court will not typically exclude the existence of UIM coverage from the jury.

Maryland Court Rules Jury Did Not Err in Finding Child Contributorily Negligent

June 5, 2016 | by Foran & Foran, P.A.

In a recent opinion, the Court of Special Appeals of Maryland reviewed a personal injury case in Butler v. Abbett (Md. Ct. Spec. App. Apr. 5, 2016). In Butler, the plaintiffs filed a lawsuit on behalf of their eight-year-old daughter after she was injured while climbing a tree on the defendant’s property. After a trial, the jury found in favor of the defendant. The plaintiffs moved for a new trial, arguing that the evidence showed that the defendant was negligent, and it did not prove that their daughter was contributorily negligent or had assumed the risk of her actions.

In Maryland, the duty owed to a social guest is to exercise reasonable care to make the premises safe or to warn the guest of known dangerous conditions that cannot reasonably be discovered by the guest. The parental duty of supervision includes protecting a child from known or obvious dangers. If a condition is open and obvious, no greater duty is imposed upon a host of a child under parental supervision than would be owed to the parent. On appeal, the court found that the tree was an open and obvious condition, and the defendant was not acting unreasonably in supervising the plaintiffs’ daughter.

Maryland Court Reviews Appeal Involving Fraud Claims in Medical Malpractice Case

June 4, 2016 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently reviewed a medical malpractice case involving allegations of fraud by misrepresentation and concealment. In Crystal v. Midatlantic Cardiovascular Associates, P.A. (Md. Ct. Spec. App. Mar. 29, 2016), the plaintiff brought a medical malpractice lawsuit against the defendants, claiming that an unnecessary stent was placed in his artery in 2004. The lower court entered summary judgment in favor of the defendants on the fraud claims, which consequently resulted in the dismissal of the medical malpractice lawsuit, which depended on the fraud claims to toll the statute of limitations that had long since run. The plaintiff appealed the decision to the higher court.

To prevail on a claim of fraud in Maryland, the plaintiff must establish that the defendant made a false representation to the plaintiff, its falsity was either known to the defendant or the representation was made with reckless indifference as to its truth, the misrepresentation was made for the purpose of defrauding the plaintiff, the plaintiff reasonably relied on the misrepresentation, and the plaintiff suffered a compensable injury as a result of the misrepresentation. Fraud does not encompass liability for negligent or grossly negligent representations.

In Crystal, the plaintiff’s claim of fraud by intentional misrepresentation was based on expert opinion testimony that the defendant breached the standard of care by inserting a stent without reasonable evidence that it was medically necessary. However, the appeals court found that there was no evidence that the defendant knowingly misstated the level of stenosis in the plaintiff’s blood, nor any evidence that the alleged misrepresentation was made to induce the plaintiff to undergo the operation.