Articles Posted in Premises Liability

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.hands

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.

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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.snow

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.

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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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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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In some lawsuits, plaintiffs can seek to hold careless business owners responsible for their negligence. In a recent case, Reyen v. Jones Lang Lasalle Americas, Inc. (D. Md. Sept. 7, 2016), an injured plaintiff filed a negligence claim against the owner of a bus company and the property manager of the bus station after she fell on an escalator. The matter was brought in the U.S. District Court of Maryland, which decided a motion for summary judgment filed by the defendants.personal injury

In Reyen, the plaintiff purchased a bus ticket from the defendant to travel from New York to Virginia on an itinerary with several bus changes. Due to a disability that required her to walk with a cane, the plaintiff notified the bus company in advance that she would need help with moving her luggage and getting on and off the buses. The bus company indicated that she would have assistance walking from one bus to the next. During one of the scheduled stops, the plaintiff looked for an elevator she could use but was unable to find one at the station, although they were in fact available. The plaintiff felt that she had no other choice but to ride an escalator, and as she took a step onto it, she fell backwards and sustained injuries.

A plaintiff alleging negligence must prove the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the injury. Generally, common carriers owe different standards of care to passengers and non-passengers. For passengers, common carriers must exercise reasonable care under the circumstances, including protecting passengers against assault, interference with the peaceful completion of their journey, and in certain situations, negligent acts of third parties. However, a common carrier owes no special duty of care to non-passengers, other than the general duty to exercise ordinary care to avoid injury.

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Premises liability law holds a property owner accountable for injuries that occur on that individual’s or entity’s property. Victims often bring a personal injury claim alleging negligence on the part of the owner, as the plaintiff did in Watson v. J.C. Penney Corp., Inc. (D. Md. Nov. 30, 2015). In Watson, the plaintiff was visiting the defendant’s store when she fell shortly after walking inside. The defendant moved for summary judgment, and the motion was considered by the U.S. District Court, applying Maryland law.cone

In Maryland, a property owner owes a duty to an individual who comes in contact with the property, the scope of which is dependent upon the individual’s status. In Watson, the plaintiff was a customer in the store for a business purpose and thus had invitee status. The defendant therefore had a duty to use reasonable and ordinary care to keep its premises safe and protect against an unreasonable risk of injury that the plaintiff would be unlikely to perceive in her exercise of ordinary care. When, as in Watson, the fall was caused by a foreign substance on the floor, the burden is on the plaintiff to produce evidence that the defendant created the dangerous condition or had actual or constructive knowledge of its existence.

In Watson, the plaintiff testified that after she fell, she noticed a film of slippery, soapy residue covering the entire floor. After reviewing the evidence, the court found that the plaintiff’s declarations could not prove that the defendant had actual knowledge that the floor was hazardous or that it was aware of the residue prior to the plaintiff’s fall. Nevertheless, the court explained that constructive knowledge may be imputed to a defendant if the plaintiff can demonstrate the dangerous condition existed for a sufficient period of time to permit the defendant, exercising reasonable care, to discover it. In Watson, the court ultimately found that the plaintiff could not establish constructive knowledge, since the residue on the floor was not readily apparent, and employees may not have observed the condition on a day that was during the height of the Christmas shopping season.

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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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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 box.business 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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