There are important rules regarding the location of the court where a case is heard, known as venue.  The Court of Special Appeals of Maryland recently discussed this issue in the context of a wrongful death action in Smith v. Salim (Md. Ct. Spec. App. Dec. 27, 2016).crossed hands

In Smith, the plaintiffs’ young daughter died when her pacemaker’s battery expired.  The plaintiffs brought suit against five defendants, including the doctor, the hospital where the pacemaker was implanted, the hospital where the child was treated before her death, the manufacturer of the pacemaker, and the service monitoring the pacemaker.  The defendants filed a motion to transfer venue from Baltimore City to Anne Arundel County, claiming that it was the single common venue for all five defendants.  The circuit court granted the motion over the plaintiffs’ objection, and the plaintiffs appealed.

In Maryland, CJP § 6-201 provides that if there is more than one defendant in a civil action, and there is no single venue applicable to all of the defendants, all may be sued in a county in which any one of them could be sued, subject to the provisions of CJP § 6-202.  Under CJP § 6-202, the action may be brought in the county where the plaintiff resides, if the defendant is a corporation that has no principal place of business in Maryland.  In Smith, the defendants argued that the provisions of § 6-202 take priority over § 6-201.  The plaintiffs contended that neither section has priority over the other and that § 6-202 merely presents options for alternative venues to those available under § 6-201.

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In a recent personal injury case, the Court of Special Appeals of Maryland explained aspects of liability and duty concerning the participation of a private entity in the design and construction of government roadways.  The plaintiff filed a wrongful death action against a cement company, the county, and the state of Maryland after her husband was killed by a tractor trailer.  When the trial court dismissed the plaintiff’s claims against the defendants, the plaintiff brought her appeal to the higher court.bicycle crash

In this case, the plaintiff’s husband was cycling on a state road designated as a bicycle route.  He entered with the right of way into an intersection that did not have any traffic light.  A tractor trailer leaving a cement plant entered the intersection at the same time, striking the plaintiff’s husband.  In her lawsuit, the plaintiff alleged that the intersection was negligently designed and constructed to funnel the bicycle lane into the acceleration lane for vehicles turning right onto the state road.  Although the cement company did not own the tractor-trailer involved in the accident, the plaintiff claimed that the cement company owed a duty in tort with regard to its participation in the design and construction of the intersection.

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In some cases, negligence on the part of both drivers may contribute to a collision that causes injuries. In Dailey v. Mackey (Md. Ct. App. May 3, 2016), the Court of Special Appeals of Maryland reviewed a negligence claim arising out of an automobile accident. After a jury found both the plaintiff and the defendant negligent, Maryland’s contributory negligence rule barred all recovery. The plaintiff filed an appeal to the higher court, which considered the case.

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In Dailey, the defendant rear-ended the plaintiff’s disabled vehicle after it shut down on the interstate. Although the plaintiff attempted to move his vehicle off the road, it did not have enough momentum to reach the shoulder, and the defendant struck his car from behind. The parties disputed whether the defendant’s vehicle still had its lights on after the engine lost power, and whether the defendant had activated the hazard lights. The plaintiff sued the defendant, and the defendant counterclaimed, each contending that the other was negligent. After a trial on liability, the jury determined that both parties were negligent. On appeal, the plaintiff argued that the defendant did not present sufficient evidence of the plaintiff’s negligence to permit sending the question of contributory negligence to the jury.

Negligence is defined as failing to act as an ordinarily prudent person would under the circumstances. A claim based on negligence requires proof of certain elements:  the defendant owed a duty to the plaintiff to exercise reasonable care, the defendant breached that duty, and the defendant’s breach was the actual and proximate cause of the damages suffered by the plaintiff. In Maryland, a plaintiff cannot recover compensation even from a negligent defendant if the plaintiff was also negligent, although there are some exceptions. In the case of a sudden emergency, such as the one that befell the plaintiff when his car lost power, the driver must still exercise ordinary care.

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In some personal injury cases, a plaintiff may still prevail against a careless driver even if the plaintiff was also partially at fault for the accident. The Court of Special Appeals of Maryland addressed this issue when reviewing a negligence claim on appeal in Stevenson v. Kelley (Md. Ct. Spec. App. Dec. 15, 2016). In Stevenson, the plaintiff filed a lawsuit after he was struck by a vehicle driven by the defendant. After a trial, the jury found that the defendant was negligent and proximately caused the plaintiff’s injuries. It also found, however, that the plaintiff was contributorily negligent. The plaintiff appealed, arguing that the court should have instructed the jury on the doctrine of last clear chance.pylon

In Maryland, the law has adopted the principle of contributory negligence in civil claims. Pursuant to this principle, even if the defendant’s misconduct may have been the primary cause of the injury, a plaintiff cannot recover compensation if the proximate and immediate cause of the harm can be also traced to the plaintiff’s lack of ordinary care and caution. However, there is one exception to this rule. Under the doctrine of last clear chance, the plaintiff may recover if the defendant had a fresh opportunity to avoid the consequences of the plaintiff’s carelessness. The doctrine only applies if the acts of the parties were sequential, and the defendant had a chance to avoid the injury after the plaintiff acted negligently. It is not applicable when the plaintiff’s negligence is the last negligent act, or when the negligence of the parties occurs at the same time.

In Stevenson, the plaintiff was directing traffic around a motor vehicle collision that had occurred on the roadway. The defendant drove on the shoulder of the road to avoid the stopped traffic and take the next exit. The plaintiff attempted to stop the defendant from driving on the shoulder by waving his arms and walking over to his vehicle. Although the defendant slowed down, the plaintiff was struck by the defendant’s bumper on his right knee.

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There are several legal requirements necessary to bring a medical malpractice action in Maryland, one of which is expert testimony. The Court of Special Appeals of Maryland considered the issue of expert testimony in a recent case, Harper v. Calvert Ob/Gyn Assocs. of S. Maryland, LLC (Md. Ct. Spec. App. Dec. 6, 2016). The plaintiff filed a complaint against her obstetrician, alleging medical malpractice and failure to provide informed consent. The trial court granted judgment at the close of the plaintiff’s case, largely based on her failure to secure her own expert witness.

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In Harper, the defendant cared for the plaintiff during her two pregnancies in 2002 and 2006. During her first delivery, the plaintiff gave birth to a healthy baby without any shoulder injury, but the baby’s medical chart included contradictory information of a shoulder dystocia and no observed abnormality. Although prior shoulder dystocia can pose an increased risk of a subsequent dystocia, this possibility was not considered in the plaintiff’s 2006 pregnancy because neither the plaintiff nor the defendant was aware of any issue during the 2002 pregnancy, and the defendant did not read the entire 2002 delivery summary document indicating dystocia. During the plaintiff’s 2006 delivery, a shoulder dystocia occurred, and the infant sustained a severe and permanent brachial plexus injury.

Before trial, the plaintiff’s two expert witnesses were unable to testify, due to illness and an unforeseen conflict of interest, and her request to substitute a new expert witness upon short notice was denied. The plaintiff served a subpoena to compel the defendant’s expert to testify in her case, which was quashed by the trial court. At trial, the plaintiff abandoned her medical malpractice claim and pursued her claim for lack of informed consent. The plaintiff called the defendant as an adverse witness, although the defendant was never formally presented as an expert. At the close of the plaintiff’s case, the defendant moved for judgment on the ground that the plaintiff failed to present the expert testimony necessary to sustain her case. The trial court granted the motion.

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In some cases, a plaintiff may allege that his or her injuries were caused by the negligence of multiple defendants.  A recent appeal in a wrongful death action, for example, involved claims against the Baltimore Police Department, a nightclub, and an adjoining parking lot’s owner.  In Torbit v. Baltimore City Police Dep’t (Md. Ct. Spec. App. Nov. 16, 2016), two people were killed and several others were injured when police responded to an active shooter situation outside a nightclub.  The surviving family members of the victims filed a negligence lawsuit afterward.  The trial court ruled in pre-trial motions that the police were not grossly negligent in firing their guns at the shooter, nor were the nightclub defendants liable for actions prior to the shooting.

pistolOn appeal, the plaintiffs argued that the police department’s motion to dismiss was granted in error.  In a negligence action, a plaintiff must allege facts demonstrating that the defendant was under a duty to protect the plaintiff from injury, that the defendant breached that duty, that the plaintiff suffered an actual injury or loss, and that the loss or injury proximately resulted from the defendant’s breach of the duty.  In Maryland, police do not owe an enforceable tort duty to the public at large.  Plaintiffs can only prevail if they prove the existence of a special relationship, showing that the local government or police officer affirmatively acted to protect the victim or a specific group of individuals, thereby inducing the victim’s reliance upon the police protection.

In Torbit, the plaintiffs alleged that the police department failed to establish adequate policies, rules, and guidelines, and it failed to adequately train and prepare its employees in operational realities related to crowd control.  The appeals court explained that a failure to act, by definition, cannot satisfy the requirement of an affirmative act.  As a result, since there was no affirmative act to create such a relationship, the police officers did not owe the plaintiffs a duty of care.  Accordingly, the court affirmed the dismissal of the negligence claim against the police department.

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In order to hold a defendant liable in a medical malpractice claim, the plaintiff must establish that the defendant owed them a duty of care. In the absence of a doctor-patient relationship, there are rare circumstances under which the law may impose a duty of care to a third party who never received treatment. The Court of Special Appeals of Maryland addressed this issue in Puppolo v. Holy Cross Hosp. of Silver Spring, Inc. (Md. Ct. Spec. App. Nov. 14, 2016), a recent case arising out of the medical treatment of the plaintiff’s mother.hospital bed

In Puppolo, the plaintiff’s mother received treatment at the defendant’s hospital for an intracranial hemorrhage, involving a bedsore on her lower back. The bedsore became a serious health issue that required extensive treatment, and the plaintiff’s mother eventually passed away. The plaintiff sued the hospital, alleging claims of medical malpractice, battery, fraudulent concealment, intentional infliction of emotional distress, and wrongful death. The trial court dismissed the plaintiff’s personal claim for fraudulent concealment, and the plaintiff appealed.

In her complaint, the plaintiff alleged that the defendant intentionally concealed the existence of the bedsores and its failure to treat those bedsores, thus placing undue and unnecessary mental strain on the plaintiff. The necessary elements for fraudulent concealment are:  (1) the defendant owed a duty to the plaintiff to disclose a material fact; (2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the defendant’s concealment.

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The Court of Special Appeals of Maryland reviewed a personal injury claim involving exposure to lead-based paint, ultimately ruling in favor of the plaintiffs.  In Murphy v. Ellison (Md. Ct. Spec. App. Aug. 23, 2016), the plaintiffs sued the owners of a building in which they resided from 1992 through 1995.  They alleged that the defendants failed to keep the property free of any flaking, loose, or peeling lead-based paint, and the lead-based paint exposure resulted in permanent brain injuries to their children.  The circuit court granted the defendants’ motion for summary judgment, finding that the plaintiffs had failed to produce direct or circumstantial evidence of any lead-based paint hazards at the property.  The plaintiffs subsequently brought their appeal before the higher court.lead exposure

In Baltimore, the housing code establishes minimum standards for building maintenance, and it provides that all walls, ceilings, woodwork, doors, and windows must be free of any flaking, loose, or peeling paint to protect children from lead-based paint poisoning.  In negligence actions based on the housing code that involve lead exposure, as in Murphy, the plaintiff must show that the defendant violated the code and that the defendant’s negligence was a substantial factor in causing the victim’s injury.  Specifically, the element of causation requires evidence that the property at issue contained lead-based paint, and it was a substantial contributor to the victim’s exposure to lead.  This can be proven by either direct or circumstantial evidence.  In a typical circumstantial case, as in Murphy, the plaintiffs attempt to show that they had elevated blood-lead levels while living at the property, and there were no other reasonably probable sources of their exposure to lead.

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People who are hurt on the property of another business or individual may be able to hold a negligent party responsible for their injuries, as long as that party owed them a duty of care.  In Woods v. Dolgencorp, LLC (D. Md. Oct. 21, 2016), the plaintiff suffered injuries after tripping on a buckled mat in front of an ice cooler at a general store.  The plaintiff filed a personal injury claim against the general store as well as the business that provided and maintained the ice cooler, alleging it was negligent in properly placing the mat.  The ice cooler defendant filed a motion for summary judgment, arguing that it did not owe a duty of care to the plaintiff because it did not own, control, or manage the store at which the accident occurred.  The U.S. District Court for the District of Maryland heard the motion.ice

In Maryland, the elements of a negligence claim are:  (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered an actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.  In premises liability actions, the defendant’s duty is dependent on the status of the plaintiff on the property.  In Woods, as a patron of the store, the plaintiff was an invitee on the premises.  An owner is responsible for harm caused by a natural or artificial condition if the owner knew about or could have discovered the condition through the exercise of reasonable care, or the owner should have expected that invitees would not discover the danger or would fail to protect themselves against it, or the owner invited entry upon the land without making the condition safe or giving a warning.

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The Court of Special Appeals of Maryland recently reviewed a jury award of $185,000 to a plaintiff for negligent conduct in a medical malpractice case. In Luecke v. Suesse (Md. Ct. Spec. App. Oct. 28, 2016), the plaintiff sued her doctor and her practice group, alleging that they were negligent in failing to arrange a biopsy and render timely treatment for a mass in her breast. The plaintiff’s condition eventually required extensive medical treatment and major surgery. Before trial, the court denied the defendants’ motion to exclude testimony regarding the plaintiff’s chance of survival. The jury ultimately returned a verdict in favor of the plaintiff, awarding $35,000 in past medical expenses and $150,000 in non-economic damages.hospital IV

On appeal, the defendants argued that the trial court erred in allowing evidence of the plaintiff’s probability of survival, contending that it was irrelevant and highly prejudicial. In particular, the defendants objected to testimony that the plaintiff’s chances of getting a more serious, invasive cancer have increased and that her life expectancy has the potential to be decreased. The defendants contended that the reduced probability of survival was also not compensable under Maryland law as an element of damages because the plaintiff retained a greater than 50% probability of survival. The plaintiff responded that the evidence was relevant to her claim for emotional distress and distinguished it from loss of chance of survival.

In Maryland, a reduction in survival percentage is not compensable and not an element of damages when the patient retains a greater than 50 percent probability of survival. As a result, the appeals court agreed that loss of chance of survival was not an appropriate claim in Luecke. The court went on to address the plaintiff’s claim for recovery for emotional damages, noting that it must arise out of tortious conduct. Specifically, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) she was actually exposed to a toxic substance due to the defendant’s tortious conduct, (2) which led her to fear objectively and reasonably that she would contract a disease, and (3) as a result of the objective and reasonable fear, she manifested a physical injury capable of objective determination.

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