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.lead paint

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.

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In an important decision, Maryland’s highest state court held that a social host who illegally allows alcohol to be consumed by an underage person on his or her property owes a duty to another person injured as a result. In Kiriakos v. Phillips (Md. July 5, 2016), the Court of Appeals of Maryland reviewed two separate cases involving underage people drinking alcohol on an adult’s property and then leaving the property in a motor vehicle. In both cases, the victims brought a negligence claim against the adult property owners.negligence

In Kiriakos, the plaintiff was walking her dog when she was hit on the sidewalk by a truck driven by a teenager, causing her life-threatening injuries. The teenager had been drinking alcohol provided by the defendant at the defendant’s house the prior evening. The teenager drove home early the next morning with a blood alcohol level of .08 at the time of the accident. The plaintiff brought suit against the defendant, alleging that he owed a duty to the public in general not to provide alcohol to someone underage with knowledge that the underage person would drive under the influence. The lower courts found that no liability existed, and the plaintiff subsequently appealed.

On appeal, the court ultimately held that, although Maryland has not recognized social host liability to third persons, there exists a limited form of social host liability in negligence based on the strong public policy reflected by Maryland statute § 10–117(b), which prohibits adults from allowing underage drinking on their property. However, liability only exists when the adults in question act knowingly and willfully, as required by the statute. The court went on to explain that its holding is consistent with the factors used to determine whether a duty exists under common law, such as the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and others.

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The Court of Special Appeals of Maryland recently reviewed a personal injury case in which a patient sued her doctor for a failed sterilization procedure. In Tyler v. Judd (Md. Ct. Spec. App. June 30, 2016), the plaintiff sought treatment from her doctor to schedule a tubal ligation. She alleged that the doctor responded to her request by talking to her about Essure, stating that it was a non-reversible, pain free, 100 percent sterilization procedure. Based on that conversation, the plaintiff agreed to undergo insertion of the coils in her fallopian tubes. After the procedure, the plaintiff experienced ongoing abdominal pains and also became pregnant with her third child a short time later. The plaintiff gave birth to a healthy boy and had another doctor remove the coils. The plaintiff then brought suit against the doctor on grounds including lack of informed consent.medical negligence

At the trial, the plaintiff testified, along with several other witnesses. However, the plaintiff did not call any medical experts to testify in support of her claim. At the close of her case, the defendants moved for judgment, arguing that the plaintiff failed to present expert medical testimony, which is required for a claim of a lack of informed consent. The trial court agreed, ruling that expert testimony is needed to establish the nature of the risks inherent in a particular treatment, and that there was no testimony with respect to medical alternatives or the treatment’s percentage of failure, even the percentage of the Essure failure rate. The plaintiff subsequently appealed.

In Maryland, the doctrine of informed consent imposes a duty on a physician to explain the procedure to the patient before treatment, and to warn the patient of any serious risks or harm related to therapy, in order to allow the patient to make an informed decision about whether or not to undergo the treatment. This duty to disclose requires a doctor to inform the patient of the nature of the condition, the nature of the suggested treatment, the probability of success of the treatment and any alternatives, and the risk of undesirable consequences associated with the treatment. In bringing a negligence claim for lack of informed consent, therefore, the plaintiff must show a breach of this duty, causation, and injuries.

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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.personal injury

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.

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In a newly issued decision, the Court of Appeals of Maryland settled the question of whether surviving family members can bring a wrongful death action based on the same alleged conduct as a personal injury claim won by the decedent before his death. In Spangler v. McQuitty (Md. July 12, 2016), the court ultimately held that the decedent’s beneficiaries are not barred from filing a subsequent wrongful death action, despite a judgment on the merits in the decedent’s personal injury claim. The court further held that when only one joint defendant is released from liability by the injured person, the other defendants are not also discharged. Accordingly, such a release does not preclude a wrongful death action brought by the survivors against other defendants that were not parties to the release.wrongful death

In Spangler, the mother suffered a placental abruption, causing severe injuries to her child during his birth as well as cerebral palsy. The parents of the minor child sued their obstetrician and medical practice group for failing to secure the mother’s informed consent for treatment. Several of the defendants settled with the plaintiffs before trial. After trial, the jury awarded the child approximately $13 million in damages, including future medical expenses. Although the verdict was upheld, the jury award was ultimately reduced after subsequent appeals.

During the appeal litigation of his personal injury claim, the child died. His parents filed a wrongful death action against the defendants under the Maryland wrongful death statute, based on the same underlying facts as the personal injury action regarding the obstetrician’s failure to obtain informed consent. The circuit court dismissed the case, concluding that it was precluded by the previous judgment. That decision was reversed by the Court of Special Appeals, and the case subsequently came before the Maryland Court of Appeals.

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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.traffic light

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.

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In a victory for the plaintiff, the Court of Special Appeals of Maryland reversed summary judgment in a personal injury case, allowing her to proceed with her suit against the defendant. In Smith v. Rite Aid of Maryland, Inc. (Md. Ct. Spec. App. May 19, 2016), the plaintiff suffered injuries after falling over a tote box on the floor of the defendant’s store. An employee had placed the box next to the checkout counter and against the candy and magazine rack to unload magazines. After checking out, the plaintiff was looking straight toward the exit to leave when she tripped over the liability

The defendant argued in its summary judgment motion that it had no duty to warn the plaintiff of an open and obvious condition. The circuit court granted summary judgment, finding that the plaintiff had seen totes in the store on previous occasions and was not looking where she was going when she fell. The plaintiff subsequently appealed the decision of the lower court. The appeals court ultimately held that the grant of summary judgment was in error for several reasons.

In Maryland, a business owner has a duty to exercise reasonable care to protect customers from an injury caused by an unreasonable risk, about which the owner knows or that the owner could have discovered in the exercise of reasonable care. This duty includes not only inspecting the premises and warning customers of any known hidden dangers, but also taking reasonable precautions against foreseeable dangers. A customer also has a duty to exercise due care for her own safety, including a duty to look at her surroundings. Accordingly, a business owner ordinarily has no duty to warn a customer of an open, obvious, and present danger.

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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.elderly couple

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.

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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.charitable immunity

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.

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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.asbestos

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.

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