Articles Posted in Wrongful Death

Injuries that are caused by the careless actions of more than one person may give rise to legal recourse against multiple defendants.  In a March 17, 2017 wrongful death decision, the Court of Special Appeals of Maryland considered whether the county was liable for the death of a two-year old child in foster care.  The plaintiff filed the appeal after the circuit court granted summary judgment in favor of the county.

In 2007, as a result of the county’s determination that the child was in need of assistance, the circuit court ordered that he be placed in a foster home.  At the foster home, the child’s room had a window covered with venetian blinds, which were controlled by two single-tassel cords.  Although the blind cords were usually hung on a nail at the top of the window, the child became entangled in the blind cords and subsequently died from strangulation in 2009.  The biological mother of the child filed a wrongful death action against the county for failing to properly supervise and protect the child.  The circuit court ruled that the facts did not give rise to a common law or statutory duty that the county owed to the child.

In Maryland, a negligence action requires a plaintiff to establish four elements:  a duty owed by the defendant, a breach of that duty, a causal relationship between the breach and the harm suffered, and damages.  Generally, government entities do not owe a tort duty to the world at-large.  A government entity can be liable in tort, however, if it takes an affirmative step to create a duty.  That duty can be created in two ways:  (1) legally, by adopting a statute; or (2) factually, by creating a special relationship.

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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).

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.

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 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.

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 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.

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The Court of Special Appeals of Maryland recently reviewed a lower court’s decision granting summary judgment in favor of a physician-defendant in a medical malpractice case.  In Puppolo v. Sivaraman, the plaintiff’s wife died as the result of the administration of heparin, an anticoagulant used to prevent blood clotting during dialysis.  Heparin is not typically administered to patients with platelet levels below 50, since there is a high risk that heparin-induced thrombocytopenia, a serious and sometimes fatal condition, may occur.  On December 23, 2008, although the plaintiff’s wife had a platelet level of 1, she was given two doses of heparin, and she died shortly thereafter.

The plaintiff brought a wrongful death claim against his wife’s doctor, alleging that he breached his duty of care by administering the heparin to his wife, or allowing it to be administered to her.  In order to establish medical malpractice, the plaintiff must prove that the defendant owed a duty of care to the victim, the defendant breached the duty of care, the defendant’s actions caused the injury to the victim, and damages were incurred.  Generally, expert medical testimony is required to prove the standard of care and what constitutes a breach of that standard.

In Puppolo, the evidence indicated that the doctor did not write an order for heparin and that one of the other resident doctors working in the hospital ordered the prescription.  The plaintiff nevertheless contended that the defendant was liable for the resident’s breach of the standard of care under the borrowed servant rule.  The lower court granted the defendant’s motion for summary judgment, finding that there was nothing to support the plaintiff’s assertion that the defendant ordered, directed, approved, or controlled the ordering of heparin.

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The Maryland Court of Appeals recently published an important opinion that will have consequences for future asbestos litigation and personal injury claims. In a victory for asbestos plaintiffs, the court’s ruling in May v. Air & Liquid Sys. Corp. (Md. Dec. 18, 2015) found that in limited circumstances, a manufacturer has a duty to warn workers of asbestos-containing third-party replacement component parts under theories of negligence and strict liability.

In May, the plaintiff replaced asbestos gaskets and packing while in the United States Navy from 1956 until 1976, which exposed him to airborne asbestos fibers. However, he was not exposed to the asbestos gaskets and packing that the defendants used, but to asbestos-containing replacement parts acquired from third parties. It is undisputed that the instruction manuals did not contain any warnings regarding the danger of inhaling asbestos dust or directions to wear protective gear. In January 2012, the plaintiff learned he was suffering from mesothelioma, a form of cancer that is commonly caused by asbestos exposure. The plaintiff initially filed suit against the defendants, and his wife continued the action upon his death. The defendants moved for summary judgment, contending that they had no duty to warn of the dangers of third-party asbestos-containing replacement parts that they did not manufacture or place into the stream of commerce. The trial court granted the motion in favor of the defendants, and Court of Special Appeals affirmed.

In Maryland, failure to warn claims may be brought under a negligence or strict liability theory. Negligence claims require a showing of a duty of care owed by the defendant to the plaintiff. In determining the existence of a duty, the court considers many factors, including the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, 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, the extent of the burden to the defendant, and others.

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The Maryland Court of Special Appeals reviewed a wrongful death case involving a truck accident and addressed the issue of whether the defendant had insurance coverage. In Glass v. State Farm Fire & Cas. Ins. Co. (Md. Ct. Spec. App. Aug. 5, 2015), the defendant’s employee was driving the company delivery van and lost control of it. The van swerved across the center lines and hit the victim’s vehicle head-on. The victim died of injuries caused by the accident shortly thereafter. The victim’s husband brought a personal injury negligence and wrongful death suit against the employee and the employer, and he later amended the complaint to include the employer’s insurer.

The parties disputed whether the accident was covered under the business policy issued by the insurer, due to the unintended entanglement of two separate legal entities of the employer. In 2004, the employer created a general partnership. The general partnership purchased and owned the van driven by the employee, as well as the insurance policy in effect at the time of the accident. However, when the employer formed an LLC in 2006, intending to merge the general partnership with the LLC, it was never properly completed. As a result, both companies remained in existence as separate legal entities, and the general partnership held title to the van and the insurance policy. Although the employer began conducting business in the name of the LLC, it was performing the contractual obligations of the general partnership.

The parties filed motions for declaratory judgment for the trial court to decide the issue of insurance coverage. After an evidentiary hearing, the trial court found that at the time of the accident, the company was conducting business on behalf of the general partnership, and the van was owned by the general partnership. Therefore, the court held, the accident was not covered under the business policy through an exemption to a coverage exclusion for injuries arising out of the use of a non-owned automobile.

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In a recently released opinion in the case of Stidham v. R.J. Reynolds Tobacco Co. (Md. Ct. Spec. App. Aug. 27, 2015), the Maryland Court of Special Appeals finally answered the question of whether or not joinder of wrongful death claims against asbestos defendants with wrongful death claims asserted against tobacco defendants is proper. Despite the fact that the plaintiffs’ claims against the tobacco defendants had been dismissed by the circuit court due to misjoinder, and its claims against the asbestos defendants had been resolved by the time it reached the court, rendering the case moot by the time it reached the court, the court nevertheless addressed the merits of the case, finding that the appeal presented a recurring matter of public concern that, unless decided, would continue to evade judicial review.

In Stidham, the decedent initially filed a claim against asbestos manufacturers and distributors, alleging that he developed lung cancer due to his exposure to asbestos products. After his death, the wrongful death plaintiffs amended the complaint to add claims against certain tobacco companies, alleging that the asbestos and tobacco companies failed to warn the decedent that concurrent exposure to asbestos and cigarettes increased the risk to his health, a concept known as the synergy theory. Specifically, the theory proposes that a combination of asbestos exposure and the use of tobacco products exponentially increases the danger of developing cancer.  Therefore, there is a much greater risk that cigarette smokers exposed to asbestos will develop lung cancer, as opposed to non-smokers solely exposed  to asbestos.

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The Court of Special Appeals of Maryland recently issued an opinion regarding a negligence action brought by the mother of a deceased minor against a host who allowed minors to consume alcohol at her home. The circuit court granted the defendant-host’s motion to dismiss the negligence claim, holding that no legal cause of action existed against the defendant, and the plaintiff appealed.

In Davis v. Stapf, Md. Ct. Sp. App. (2015), the defendant purchased alcohol for high school classmates of her son to consume at a party in the defendant’s home. The plaintiff alleged that, despite the defendant’s actual knowledge that they were intoxicated, the defendant allowed a partygoer to leave the party with the plaintiff’s son in his truck. Shortly after leaving the defendant’s residence, the driver crashed the truck, killing the plaintiff’s son. The defendant was charged with allowing underage persons to drink alcohol in violation of CL § 10-117(b).

To prevail on a negligence claim, the plaintiff must show that the defendant was under a duty to protect the victim from injury, the defendant breached that duty, the victim suffered an injury, and the injury proximately resulted from the defendant’s breach of the duty. A breach of a statutory duty is considered evidence of negligence only if (1) the victim was a member of the class of persons the statute was designed to protect, (2) the injury suffered was the type the statute was designed to prevent, and (3) the violation of the statute was the proximate cause of the injury sustained.

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