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.factory

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.

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The Maryland Health Care Malpractice Claims Act (Health Care Act) provides statutory procedures that apply to certain legal claims involving health care and medical treatment.  Recently, the Court of Special Appeals of Maryland decided whether a lower court correctly ruled that the plaintiff failed to follow rules set out in the Act.  The plaintiff filed a negligence claim in circuit court against the owner of a rehabilitation center where she received treatment.  The defendant moved to dismiss, arguing that the plaintiff did not submit her claims for arbitration before filing in the circuit court, as required by the Health Care Act.  The court granted the motion, which led to the plaintiff’s appeal.hospital bed

The case arose out of the plaintiff’s stay at a nursing rehabilitation center for her recovery and physical rehabilitation following back surgery.  The plaintiff alleged that the mattress on her bed came loose and slid off the frame, causing her to fall to the ground.  A nurse refused to help the plaintiff stand but instead placed her in a mechanical lift in order to return her to the bed.  The plaintiff claimed that the nurse prematurely released the net, causing her to drop to the floor.  The plaintiff called an ambulance and was eventually moved back into her bed by an EMT.

The Health Claims Act provides that all claims, lawsuits, and actions by a person against a health care provider for a medical injury must be submitted to the Health Care Alternative Dispute Resolution Office for arbitration before maintaining a tort action in the circuit court.  A medical injury under the Act is an injury arising or resulting from rendering or failure to render health care.  On appeal, the plaintiff argued that the Health Claims Act does not apply to her claim because her injuries were not caused by the defendant’s rendering or failure to render health care, but instead they were sustained as a result of ordinary negligence, rather than medical malpractice.

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Settlement negotiations can be an important part of resolving a personal injury claim against a negligent driver or insurance company.  The Court of Special Appeals of Maryland recently addressed some of the issues surrounding settlement agreements in Ward v. Lassiter (Md. Ct. Spec. App. Jan. 13, 2017).  In Ward, the underlying case arose from an automobile accident, in which the plaintiff filed suit against the defendant.  The trial date was canceled after the parties orally agreed to settle the case, but another dispute arose when the plaintiff refused to sign a written agreement.handshake

In Ward, the plaintiff agreed to accept $7,000 during the settlement negotiations, although the specific terms of the release or indemnification were not discussed.  The defendant’s counsel emailed a proposed settlement agreement, to which the plaintiff’s attorney made several revisions before returning it.  In particular, the plaintiff’s attorney deleted a provision that released the defendant from liability for future medical expenses and changed a clause that indemnified the defendant from any cause of action by limiting it to $7,000.  The defendant did not agree to the revisions, and the parties remained at an impasse regarding the terms and language of the written settlement.

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To establish a successful negligence claim, the plaintiff must present evidence in support of her case.  The plaintiff may even have to argue her claim before trial, in an opposition to a motion for summary judgment, as in Davis v. Realty (Md. Ct. Spec. App. May 25, 2016).  In Davis, the plaintiff filed suit against several defendants, alleging that she suffered lead paint poisoning while residing in the defendants’ properties as a child.  The defendant-owners of one such property filed a motion for summary judgment, arguing that the plaintiff failed to provide any evidence of flaking, chipping, or peeling paint while she lived there.  The trial court granted the motion, and the plaintiff appealed.doorway"

In Davis, the defendants supported their motion for summary judgment with the deposition of the plaintiff’s mother.  In that deposition, the plaintiff’s mother was never asked, nor did she volunteer, any testimony as to the flaking, chipping, or peeling paint in the house at issue.  When asked generally about the condition of the house, she stated that the walls had been freshly painted.  In response to the defendants’ motion, the plaintiff attached an affidavit of her mother.  The plaintiff’s mother stated in her affidavit that although the house at issue was freshly painted, the paint was very lumpy on the walls, and there was chipping, peeling, and flaking paint on the doors, doorframes, baseboards, steps, banister, and handrails.

The defendants moved to strike the affidavit pursuant to Rule 2-501(e), which requires the court to strike any part of an affidavit to the extent that it contradicts any prior sworn statements of the witness.  The plaintiff argued that the testimony was not contradictory, since her mother had lived in Baltimore City all of her life and regarded chipping, peeling, and loose paint as a normal thing to see in the kind of house she could afford to rent.  Furthermore, she had not been specifically asked about flaking, chipping, or peeling paint.

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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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