July 10, 2014

Popular Exculpatory Clauses Can Take Away an Injured Person's RIght to Sue

You may not know what an exculpatory clause is, but there's a good chance you've signed one recently. An exculpatory clause is a clause or an agreement that prohibits you from suing someone else, most often for personal injury claims. They usually contain language telling you that no matter what happens, you can't sue a premises or business owner even if they're responsible for your injuries. These clauses are becoming more and more popular as extreme sports, alternative forms of exercise, and even children's play activities are becoming more and more popular.

Popular for Risky Activities

To some extent, exculpatory clauses are necessary for certain businesses to operate. Companies that may offer, for example, skydiving, hiking, boot camp fitness, or children's activities, can all be fun and even necessary recreational activities which couldn't survive if there was always a threat of lawsuits. Many companies, such as one which puts athletes through fire pits and electrified water, would not be viable without exculpatory clauses. And surely, to some extent, people who engage in risky activities are accepting the risk of their own activities.

Does Negligence Make a Difference?

But what happens when someone is injured not by the activity itself, but by the business' own negligence? For example, if a plane crashes on a skydiving trip because the owner didn't maintain it? Or if a child is injured in an indoor playground because of a sharp object carelessly left exposed? The problem is that exculpatory clauses can protect businesses not just from the foreseen, anticipated risks of activities, but even from their own negligence. And they don't just protect businesses from being sued for injury, but also for accidental death. One business that caters to children was recently exposed for making parents acknowledge in waivers that their kids may be killed on their premises.

Exculpatory clauses can be legally enforceable, but the difference between sustaining injuries and being able to avoid one and file suit, or being forever barred from suing, often rests in the precise language of the agreement. These clauses must be clear and conspicuous to be effective, and the wording generally must specifically include waivers of all forms of negligence--including the negligence of the business owner. In some cases, waivers may only apply to risks inherent in the activity itself, not to unanticipated negligence of the business or its employees. Even when waivers are perfectly worded, many very successful suits have been brought. In some states, a parent can never sign such a waiver on behalf of a child. So there are some strict requirements in order to make these clauses legally binding.

The next time you participate in an activity that requires a waiver, be sure to read it completely. You may want to think carefully about frequenting businesses that require such waivers to be signed (or at least which try to eliminate your right to sue the business for its own negligence). If you are injured, even if you've signed such an agreement, always see an attorney to see what can be done, as you may still have a very good injury claim.

The qualified attorneys of Brassel, Alexander & Rice, LLC, have extensive experience representing individuals who have been injured. Contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 24, 2014

Man Critically Injured By Tractor Trailer Accident In Ellicott City

According to a recent WBALTV news report, Howard County Police are investigating a crash involving a tractor-trailer that critically injured a man. The accident, which happened last week at the intersection of Interstate 70 and Marriottsville Road near Ellicott City, occurred when a Toyota Tundra struck a tractor-trailer as it turned into the southbound lane from westbound I-70. The driver of the Tundra was taken to Shock Trauma in Baltimore, and is listed in critical condition. The tractor-trailer driver did not suffer any injury in the crash. Officials have stated that the investigation into which party was at fault is ongoing.

This accident is yet another in a recent string of Maryland motor vehicle accidents involving semi-trucks or tractor-trailers. In April, a police officer was injured when a semi-truck driver lost control of his vehicle on the University of Maryland Medical Center campus and struck several parked vehicles, one of which contained the officer. In January of last year, five motorist were taken to a local hospital with injuries following another Ellicott City accident when a vehicle containing four passengers collided with a Mack truck.

According to the National Highway Traffic Safety Administration ("NHTSA"), 8.2 percent of all traffic fatalities occurring in 2011 involved large trucks. In Maryland, there were 692 motor vehicle accident fatalities, 38 of which were caused by crashes involving large trucks. The USDOT study concluded that with the new HOS regulations approximately 1,400 crashes, 560 injuries, and 19 accident deaths will be avoided each year.

As demonstrated by these incidents, because of the immense weight and considerable size of semi-trucks, proper operation of these vehicles is of particular importance. Negligence behind the wheel of such a vehicle can easily result in catastrophe and severe injuries or death. The victims of such accidents have a right to be able to obtain recovery for their injuries from the negligent driver. When the negligence of a driver results in the death of another, under Maryland law, the decedent's family may be entitled to bring a wrongful death action.

A wrongful death claim can be brought against anyone who, through recklessness, carelessness, negligence or lack of skill, causes the fatality of another. Damages in a wrongful death action are measured in terms of the injury to loved ones caused by the death of the victim, and can include loss of future earnings, loss of companionship, and pain and suffering. Sadly, wrongful death actions can arise from myriad unfortunate circumstances, including drunk driving or reckless driving, medical malpractice (such as through surgical error or misdiagnosis of an illness), defective machinery or products, premises liability, or improper supervision.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured or killed by the negligent acts of another. If you or someone you know has been injured or killed as a result of the negligence of another person, contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 9, 2014

Smart Growth America Publishes Report Regarding Pedestrian Safety

Recently, this blog discussed the unfortunate death of twenty-two year-old University of Maryland student Cory Hubbard, who was struck by a car while walking across Baltimore Avenue in downtown College Park. According to the Maryland State Highway Administration, 116 pedestrians were killed by motor vehicles in 2007, a significant increase over the 94 that, according to the National Highway Traffic Safety Administration, were killed in 2006. In the same year, nationally, 4,654 pedestrians were killed and over 70,000 more injured in pedestrian accidents involving motor vehicles. According to the NHTSA, two years later in 2009, 59,000 pedestrians were injured and 4,902 killed in accidents involving motor vehicles.

In response to this increasing occurrence of traffic accidents involving pedestrians, Smart Growth America, a national organization dedicated to researching ways in which to improve America's neighborhoods, has prepared a report, entitled "Dangerous by Design," which studied where pedestrian fatalities are happening and which U.S. counties, metro areas, and states pose the highest risk for pedestrians. According to the report, in the decade from 2003 through 2012, 47,025 people died while walking on our streets, representing 12.3 percent of total traffic deaths. During that same period, 676,000 pedestrians were injured in traffic accidents, or one approximately every eight minutes.

Maryland Has High Rate of Fatalities

In Maryland, 1,067 people were killed while walking between 2003 and 2012, representing 18.3% of the 5,799 traffic-related fatalities in the state during this period. To compare the relative safety of walking in various locations, the report developed a measurement called the Pedestrian Danger Index ("PDI") to give an indication of the likelihood of a person on foot being hit by a vehicle and killed. The PDI was based on the share of local commuters who walk to work and the most recent five years of data on pedestrian fatalities.

Maryland's overall PDI was calculated at 78.6, placing it fifteenth nationally. Baltimore ranked 28th on the list of most dangerous areas to walk in 2014, with a PDI for 2003-2012 of 66.42, which is approximately 20% higher than the national PDI of 52.2.

With ever-increasing traffic congestion and the tendency of many Maryland residents to walk where they need to go, pedestrians are at greater risk than ever for being injured or killed in a traffic accident. If you, your family or friends have been involved an accident in which you sustained injuries, you may need legal representation to protect your right to compensation.


If you, your family or friends have been involved an accident in which you sustained injuries at the hands of a negligent driver, you need legal representation to protect your right to compensation. The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent driving of another. If you or someone you know has been injured in a car or motorcycle accident, contact the attorneys of Brassel, Alexander & Rice, LLC today

May 20, 2014

Maryland Court of Appeals Addresses Tresspassing Toddler Case

As this blog has discussed before, although swimming can be a great way to relax on a hot summer day, it is important for people to appreciate the risks associated with this activity. These hazards have been highlighted by a lawsuit filed by the family of a toddler that was injured in a swimming accident that was recently considered by the Maryland Court of Appeals.

In Blackburn L.P. d/b/a Country Place Apartments v. Paul, CoA No. 55, Christopher Paul, a 3-year-old child, allegedly entered the pool area of Country Place Apartments through a gap in the fence in June of 2010, fell in the pool and suffered brain damage as a result of oxygen deprivation. Christopher's family filed a complaint against Country Place, alleging that it had negligently failed to maintain the pool in a reasonably safe condition. The Complaint further alleged that Country Place was negligent per se by failing to comply with pool regulations set forth in the Code of Maryland Regulations and the Montgomery County Code.

Under some circumstances, certain conduct constitutes a special form of negligence known as "per se" negligence. Normally, Maryland law allows individuals to recover for injuries suffered as the result of the negligence of another when the victim is able to show that the offender failed to exercise "ordinary care" in their course of conduct. To prove a claim for negligence, the plaintiff must prove three elements:

• The defendant owed the plaintiff a duty to exercise ordinary care;
• The defendant breached his or her duty to the plaintiff; and
• The defendant's breach of his or her duty resulted in injury to the plaintiff.

As stated, however, under certain circumstances, a plaintiff may establish his or her claim by showing the defendant's conduct was negligent per se. Per se negligence is a legal doctrine that states that a person's violation of a particular statute constitutes an act of negligence. To establish a claim for per se negligence, a plaintiff must prove:

• That the defendant violated the statute;
• That the defendant's violation caused the kind of injury to the plaintiff that the statute was designed to prevent; and
• That the plaintiff was a member of class of individuals covered by the statute.

In this case, the family claimed that Country Place had violated certain state and county regulations on pool fences. The trial court determined Country Place did not owe a legal duty to the trespassing child. The Court of Special Appeals revived the lawsuit, holding that the state and county regulations imposed a duty on the landlord "for the protection of the swimming public."

In affirming the decision to revive the lawsuit, Maryland's High Court opined, "The fundamental danger of a pool is posed by its water. And it hardly needs saying that, without a fence that bars entry by a three-year-old child, the pool, located in the midst of 300 residential apartments, poses a risk which jeopardizes the health or safety of such a child, who might accidentally access the pool unsupervised. The quality and compliance of the fence is simply crucial to safety."

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals that have been injured as a result of negligence. If you or someone you know has been injured, contact the attorneys of Brassel, Alexander & Rice, LLC today.

May 5, 2014

Police Officer Injured By Runaway Truck In Downtown Baltimore Accident

According to a recent WBALTV news report, a Baltimore city police officer was injured earlier this month when a semi-truck driver lost control of his vehicle on Greene Street near the University of Maryland Medical Center campus in downtown Baltimore and struck several parked vehicles, one of which contained the officer. Officials indicated that the officer and truck driver taken to nearby hospitals with unknown injuries. Authorities have not yet determined the cause of the accident.

As demonstrated by this incident, because of the immense weight and considerable size of semi-trucks, proper operation of these vehicles is of particular importance. Negligence behind the wheel of such a vehicle can easily result in catastrophe and severe injuries or death. According to the National Highway Traffic Safety Administration ("NHTSA"), 8.2 percent of all traffic fatalities occurring in 2011 involved large trucks. In Maryland, there were 692 motor vehicle accident fatalities, 38 of which were caused by crashes involving large trucks. The USDOT study concluded that the new HOS regulations would avoid approximately 1,400 crashes, 560 injuries, and 19 accident deaths will be avoided each year.

This incident is yet another in a recent spate of traffic accidents involving injuries to Maryland public employees. In February, a highway employee was struck and killed while working construction on Interstate 695 near Liberty Road in Baltimore County when a pickup truck lost control and ran off the road. In November, a 50-year-old Maryland State Highway Administration employee was killed while repairing a road sign, and, in June, another was struck and killed by a vehicle while placing road cones on Route 216 in Howard County.

Workers' Compensation and Wrongful Death

Although victims of roadway accidents occurring in the course of their employment generally have a right to financial compensation through workers' compensation benefits, they may also be able to obtain recovery for their injuries from the negligent driver. When the negligence of a driver results in the death of another, under Maryland law, the decedent's family may be entitled to bring a wrongful death action.

A wrongful death claim can be brought against anyone who, through recklessness, carelessness, negligence, or lack of skill, causes the fatality of another. Damages in a wrongful death action are measured in terms of the injury to loved ones caused by the death of the victim, and can include loss of future earnings, loss of companionship, and pain and suffering. Sadly, wrongful death actions can arise from a host of unfortunate circumstances, including traffic accidents, medical malpractice (such as through surgical error or misdiagnosis of an illness), defective products, premises liability, or improper supervision.

Contact an Attorney Today

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured or killed by the negligent acts of another. If you or someone you know has been injured or killed as a result of the negligence of another person, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 21, 2014

Florida Supreme Court Decision Strikes Down Tort Reform Legislation

Last month the Florida Supreme Court issued a landmark decision that brought the issue of tort reform, specifically legislative "caps" on recoverable damages, back into the national spotlight.

In Estate of Michelle McCall v. United States of America, the McCall family challenged Florida statutory limit on the amount of non-economic damages recoverable in a tort case in federal court on constitutional grounds. In the context of a personal injury claim, non-economic damages are defined as "pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injury."

The McCall's lawsuit alleged that Michelle McCall died due to complications after giving birth in February 2006. Because McCall was treated by U.S. Air Force medical personnel, her parents sued the U.S. government under the Federal Tort Claims Act, alleging that the medical personnel were negligent. After a bench trial, the McCall's were awarded nearly $1 million in economic damages and another $2 million in noneconomic damages. However, due to Florida's tort reform statute, the noneconomic damage award was reduced to $1 million.

Florida's statutory tort cap essentially puts a limit on non-economic damages of $500,000 for personal injury, or $1 million for negligence resulting in a permanent vegetative state or death. On appeal, the Florida Supreme Court ruled that the noneconomic damage cap in wrongful death cases violates equal protection under the Florida Constitution, because a statute that burdens one group over another must have a rational and reasonable relationship to a legitimate state objective. The Court concluded that the distinction made by Florida's cap statute was arbitrary and unrelated to the goal of reducing medical malpractice insurance costs.

Over half of U.S. States, including Maryland, have adopted caps on non-economic damages in personal injury cases. Maryland's tort cap, codified at Section 3-2A-09 of the Maryland Code, increases by $15,000 at the beginning of each year. As of January 1, 2014, non-economic tort damages were capped at $740,000 for personal injury cases, or $925,000 for wrongful death cases with two or more beneficiaries.

The last real challenge to Maryland's tort cap came in 2010, when the Maryland Court of Appeals decided a case involving the drowning of a young child in a pool. In DRD Pool v. Freed (2010) 416 Md. 46, the Court of Appeals refused to address the plaintiffs' argument that the State's tort cap was unconstitutional, because the jury had an opportunity to weigh the facts and the plaintiffs were therefore afforded their right to a jury trial. Based on the tort cap, the plaintiffs award of over $4 million was reduced to $1 million.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent conduct of another. If you or someone you know has been injured by the misconduct of another individual, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 8, 2014

Federal Motor Carrier Safety Administration Program To Curtail Trucking Safety Violations Under Fire

Recently, this blog commented on a study done by the U.S. Department of Transportation ("USDOT") to determine the effectiveness of the Federal Motor Carrier Safety Administration's ("FMCSA") new hours-of-service regulations designed to reduce the frequency of accidents caused by truck driver fatigue.

According to the National Highway Traffic Safety Administration ("NHTSA"), 8.2 percent of all traffic fatalities occurring in 2011 involved large trucks. In Maryland, there were 692 motor vehicle accident fatalities, 38 of which were caused by crashes involving large trucks. The USDOT study concluded that the new HOS regulations would avoid approximately 1,400 crashes, 560 injuries, and 19 accident deaths will be avoided each year.

Despite this recent success in improving the safety of the trucking industry, the FMCSA is under fire as two other government agencies have questioned the efficacy of the FMSCA's recently developed Compliance, Safety, Accountability Program ("Program"). The Program assigns to trucking carriers based on safety and is intended to heighten accountability for carriers that continually violate safety rules. Recently, however, the Department of Transportation's Office of the Inspector General ("OIG") and the Government Accountability Office ("GAO") have released the results of audits of the Program concluding that it suffers from several problems caused by inaccurate or incomplete data.

The OIG report determined that the Program had yet to complete development of several components designed to improve data accuracy and that only ten percent of states had fully executed enforcement of the Program.

The GAO audit maintained the Program assigned scores to some carriers that didn't accurately their actual safety record, thereby increasing the likelihood that the Program would categorize certain carriers as high risk when they were not necessarily so. For example, the audit found that, due to the inaccurate data issue, a small carrier with no safety problems could receive a worse score than a large carrier with a number of accidents.

The audit further concluded that, in certain cases, data used to score carriers was inaccurate due to differences in enforcement and inspection agencies in each state and some of the data used to calculate scores was self-reported and therefore potentially unreliable. Further, the report found that a majority of scored violations didn't occur with enough frequency to establish an association to higher risk of crashing (600 out of 750 regulations examined were violated by less than one percent of all carriers).

Fatigued truck drivers have been shown to have slower reaction times and exhibit an increased risk of causing an accident. Due to the immense weight and considerable size commercial trucks, proper operation of these vehicles is of particular importance. Negligence behind the wheel of such a vehicle can easily result in catastrophic accidents and severe injuries or death.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent driving of commercial truck drivers. If you or someone you know has been injured in a truck accident, contact the attorneys of Brassel, Alexander & Rice, LLC today.

March 25, 2014

New Maryland Legislation Does Away With Dog Breed Distinctions

Early last year, this blog discussed a decision by the Maryland Court of Appeals in Tracey v. Solesky, which modified Maryland's "one bite rule" to specifically exclude pit bulls from its protections. The one bite rule is a negligence doctrine, established in the case of Twigg v. Ryland, 62 Md. 380 (1884), which holds that the owner or keeper of a dog may be held liable for injuries caused by the animal only if he has actual or constructive knowledge of its ferocious or dangerous propensities. Essentially, this means that after the dog bites one person the owner is put on notice of the animal's dangerous propensity.

In response to the decision, pit bull lovers began pressuring Maryland legislators to adopt a measure that would eliminate breed distinctions such as the one established by Solesky. Late last month, pit bull proponents scored a big victory when the Maryland Senate unanimously passed S.B. 247, which removes the breed specific standard and essentially codifies the one bite rule for all dogs.

S.B. 247 represents a middle ground between positions taken by the House and the Senate. As this blog has mentioned previously, both the Maryland House of Delegates and Maryland Senate have introduced bills in the past year related to this issue. The House bill would have done away with the one bite rule in favor of considering all dogs inherently dangerous, while the Senate bill would have allowed dog owners to avoid liability by showing by "clear and convincing" evidence that the dog was not dangerous before the incident.

According to the Centers for Disease Control and Prevention, about 4.7 million dog bites occur each year in the U.S., resulting in approximately 16 fatalities. Dogsbite.org, a dog bite victims' advocacy group, estimates that, between 2005 and 2013, 283 Americans died as the result of dog bite injuries. Of those deaths, 176 (62.2%) were caused by pit bulls.

According to a study by the American Veterinary Medical Association, "controlled studies have not identified this breed group [pit bulls] as disproportionately dangerous." The study further concluded that "it has not been demonstrated that breed-specific bans affect the rate or severity of bite injuries occurring in the community" and other factors, such youth of the victim and familiarity of the animal, are more reliably associated with dog bite injuries.

Regardless of breed, dogs that are improperly cared for or unsupervised can pose a significant danger to the community, particularly young children, who are drawn to animals and cannot protect themselves if attacked. Victims of dog attacks can suffer severe injuries, resulting in the need for long-term medical treatment and reconstructive surgery.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing the victims of dog attacks. If you or someone you know has been injured in a dog attack, contact the attorneys of Brassel, Alexander & Rice, LLC today.

February 10, 2014

Highway Worker Killed By Runaway Truck In Baltimore County Construction Zone

According to a recent article published by the Baltimore Sun, 54-year-old highway worker John Kahl was struck and killed while working at a construction site on Interstate 695 near Liberty Road in Baltimore County.

In the afternoon of January 31, 2014, Kahl, of Port Deposit, Maryland, was working on a landscaping project commissioned by the State Highway Administration in the area of Pikesville, when a Ford pickup truck lost control and ran off the road. Kahl was clearing trees on the right shoulder of the highway when the truck struck him and the landscaping equipment that he was using at the time. Maryland State Police are investigating the incident, and have not yet determined what caused the truck to swerve off the roadway.

This unfortunate incident is yet another in a recent string of accidents in which Maryland highway workers have been killed while on the job. In November, 50-year-old Maryland State Highway Administration employee Eddie Gilyard was killed while repairing a road sign, when a car veered onto the shoulder and hit him. In June, Eric Meekins, 40, was struck and killed by a vehicle while placing road cones on Route 216 in Howard County. Two workers were killed in January of 2013 in Cecil County when a car swerved into the clearly marked construction area where the men were setting up cones.

A report published the by the Centers for Disease Control and Prevention ("CDC") indicates that, between 2007 and 2012, 609 people were killed in highway work zones annually. The U.S. Bureau of Labor Statistics reported 101 worker fatalities at road construction sites in 2008, 116 in 2009, 106 in 2010, 122 in 2011, and 130 in 2012.

Although victims of highway accidents generally have a right to financial compensation through workers' compensation benefits, they may also be able to obtain recovery for their injuries from the negligent driver. When the negligence of a driver results in the death of a highway worker, under Maryland law, the decedent's family may be entitled to bring a wrongful death action.

A wrongful death claim can be brought against anyone who, through recklessness, carelessness, negligence, or lack of skill, causes the fatality of another. Damages in a wrongful death action are measured in terms of the injury to loved ones caused by the death of the victim, and can include loss of future earnings, loss of companionship, and pain and suffering.

Sadly, wrongful death actions can arise from a host of unfortunate circumstances, including traffic accidents, medical malpractice (such as through surgical error or misdiagnosis of an illness), defective products, premises liability, or improper supervision.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured or killed by the negligent acts of another. If you or someone you know has been injured or killed as a result of the negligence of another person, contact the attorneys of Brassel, Alexander & Rice, LLC today.

January 13, 2014

Back to the Basics: Medical Malpractice 101

Imagine this scenario: it's the middle of the night, and your child wakes up vomiting. Just the day before, you were thinking that the remedy for a tummy ache and a slight fever was ibuprofen and bed. Now though your child is in unbearable pain. You rush to the emergency room, where you discover that your child has acute appendicitis and surgery is required. Before being discharged from the hospital, your child develops an infection, and as a result suffers tissue damage in the abdomen. There is a two-week stay in the hospital and a huge invoice, missed school, and missed work (you use up all your vacation days), and your child still has stomach pain and trouble eating and sleeping. What can you do? Who is responsible? Do you have a medical malpractice case?

Understanding the Law

The first requirement for a medical malpractice case is proof that the doctor or hospital had a legal duty to your child. The second requirement is an actual injury. The third requirement is whether the doctor or hospital (and its staff) violated the standard of care, and the final requirement is that the breach of the standard of care must have caused the injury.

"Standard of care" is the measuring stick against which a doctor's diagnosis or treatment is measured when determining whether or not there is a case of medical malpractice. As noted in the Journal of Clinical Oncology, "[t]here is no medical definition for standard of care, although the term is firmly established in law and is defined [in the The Legal Dictionary] as 'the caution that a reasonable person in similar circumstances would exercise in providing care to a patient.' "

What measures have to be taken to prevent infection, sanitary conditions, how soon the infection is discovered, and how everything was treated are all questions determined by standard of care. To successfully pursue a medical malpractice claim, there has be proof that the standard of care was violated either by something that was done (which shouldn't have been done), or by failing to do something (which should have been done). The question of whether the breach of the standard of care caused the infection is not always as simple as keeping the hospital clean and sterile. As reported in Science Daily, many people carry bacteria in their own bodies that pose sources of postoperative infection. Treating patients with antibiotics before surgery has become the standard of care to address this preventable threat.

In this country, there is no effective self-policing mechanism for errors in treatment and the injuries they cause. As noted physician Dr. Atul Gawande has written "medicine has offered no genuine alternative--because physicians are generally unwilling to take financial responsibility for the consequences of their mistakes." In the same article, 55 percent of doctors polled about what they would do if they were injured by malpractice said they would sue.

Those doctors know the simple truth: people who get hurt by doctors or hospitals have only one recourse - get a lawyer.
The experienced legal professionals at Brassel, Alexander & Rice, LLC understand the complexities of medical malpractice case and are proud to work with families throughout Maryland on these issues. If you or someone you know may have been hurt by malpractice, contact the attorneys of Brassel, Alexander & Rice, LLC today.

January 3, 2014

Federal District Court Applies Contributory Negligence Doctrine to Car Accident Case

Last month, this blog discussed an opinion of the Maryland Court of Appeals issued in the case of Coleman v. Soccer Association of Columbia, which many legal scholars thought would be an opportunity for the Court to finally strike down Maryland's outdated doctrine of contributory negligence. The Court did not do so, ultimately holding that the question of whether to get rid of contributory negligence in Maryland is an issue for the state legislature to handle.

As this blog has discussed before, Maryland is one of only five jurisdictions in the United States that continues to use the legal doctrine of contributory negligence. The doctrine of contributory negligence states that, if a plaintiff's failure to exercise due care contributes to the cause of an accident, he or she will be totally precluded from recovering damages from the other party.

Most jurisdictions now operate under the theory of comparative negligence, which allows an injured party to recover damages to the extent for which the other party was at fault for an accident that results in injury. For instance, the recovery of a plaintiff who is deemed to be 30% liable for an accident would be limited to 70% of the total amount of his or her damages.

In June of this year, the U.S. Court of Appeals for the Fourth Circuit was called on to determine the applicability of Maryland's contributory negligence doctrine in a car accident case. In Saravia v. Chen, U.S. Ct. App., 4th Cir. (2013), the plaintiffs sued New Century Travel, Inc., and its employee, De Yue Chen, in connection with a fatal automobile accident. The plaintiffs contended that Chen's negligence caused the accident. Because the parties were from different states, the action was filed in the U.S. District Court for the District of Maryland.

The defendants were granted summary judgment after the District Court concluded that the deceased driver's negligence had contributed to the cause of the accident, therefore barring any recovery.

On appeal, the Fourth Circuit affirmed the district court's finding that the decedent was contributorily negligent by getting out of his truck, and walking into an active highway lane at night in a poorly lit area. The plaintiffs argued that, even if the decedent was contributorily negligent, the last clear doctrine should have applied to allow them to recover.

The last clear doctrine applies when a defendant has "a fresh opportunity to avert the consequences of his original negligence and the plaintiff's contributory negligence," but fails to do so. When a defendant has a chance to prevent the consequence of his negligence, but does not take advantage of it, he can be held liable despite the plaintiff's contributory negligence.

The Fourth Circuit found that the doctrine did not apply because the decedent's negligence occurred concurrently with the defendant's negligence, and therefore there was no fresh opportunity for the defendant to have avoided the accident.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent driving of another. If you or someone you know has been injured in a car accident, contact the attorneys of Brassel, Alexander & Rice, LLC today.

December 5, 2013

National Highway Traffic Safety Administration Announces Increase In Annual Traffic Fatalities

The National Highway Traffic Safety Administration ("NHTSA") recently published annual statistics regarding traffic fatalities, gathered using its Fatality Analysis Reporting System ("FARS"), indicating an increase in deaths resulting from U.S. highway accidents between 2011 and 2012. According to the NHTSA, fatalities increased more than three percent (3.3%) to 33,561 in 2012 from 32,479 in 2011. The first quarter of 2012 accounted for nearly three-fourths (72%) of that increase, which was made up largely of accidents involving pedestrians and motorcyclists. The uptick in deaths is the first since 2005, as traffic fatalities have been steadily decreasing since then and have stayed at historic lows for several years.

Although motorists drove almost the same number of miles in 2011 and 2012, the statistics demonstrate a marked increase in fatalities for various types of drivers. Indeed, motorcycle riders and pedestrians appeared to be the most at risk as motorcyclist fatalities increased about 7% and pedestrian fatalities increased approximately 6%, both for the third consecutive year. Also at increased risk were occupants of large-trucks, for whom the rate of fatality went up 8.9% from 2011. Finally, unsurprisingly, alcohol-related driving deaths rose 4.6% from 9,865 to 10,322.

As this blog has discussed before, distracted driving is becoming an increasingly worrisome problem for America's motorists. According to the NHTSA, in 2009, more than five thousand people were killed on U.S. highways and another 448,000 were injured in motor vehicle crashes involving distracted drivers. The new data suggests that, although distracted driving crashes actually decreased from 3,360 in 2011 to 3,328 in 2012, the problem of distracted driving is not getting better, as the number of people injured in those crashes increased dramatically from 387,000 to 421,000.

According to U.S. Transportation Secretary Anthony Foxx, "Highway deaths claim more than 30,000 lives each year and while we've made substantial progress over the past 50 years, it's clear that we have much more work to do. We must focus our efforts to tackle persistent and emerging issues that threaten the safety of motorists, cyclists and pedestrians across the nation."

Although over a dozen states enjoyed a decrease in overall traffic fatalities Maryland was, unfortunately, not one of them. Maryland experienced a an increase in total traffic fatalities of 4.1%, from 485 in 2011 to 505 in 2012. However, although eighteen states suffered an increase in alcohol-impaired driving fatalities, Maryland saw a slight decrease of .06% as such deaths dropped from 161 in 2011 to 160 in 2012.

If you, your family or friends have been involved an accident in which you sustained injuries at the hands of a negligent driver, you may need legal representation to protect your right to compensation. The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent driving of another. If you or someone you know has been injured in a car accident, contact the attorneys of Brassel, Alexander & Rice, LLC today.

November 18, 2013

Recent Winter Weather Raises Premises Liability Concerns

With winter just around the corner and the first snow falling in Maryland over the last few days, it is important that people begin to exercise caution so as to avoid the danger that ice and snow can pose to pedestrians. According to the Centers for Disease Control and Prevention ("CDC"), over one million Americans suffer a slip and fall injury each year, and, of those injuries, more than 17, 000 prove fatal. Further, ice and snow accumulation is one of, if not the leading cause of, slip and fall injuries.

As this blog has discussed before, property owners owe those individuals that enter onto their premises a duty to maintain that property in reasonably safe condition. This duty is commonly referred to in legal terms as premises liability. Slip and fall claims usually arise when a customer of a business trips or falls as the result of a slippery surface, uneven pavement, or improperly constructed or maintained stairwell. As already mentioned, one of the most common causes of slippery and/or uneven surfaces is accumulation of ice and snow.

Until recently, Maryland law stated that the risk posed by ice and snow was one which "anyone of adult age must be taken to appreciate" and, therefore, a person who slips on snow or ice had assumed the risk of such a hazardous condition. This meant that such an injured individual would be barred from recovering for such injury, regardless of the actions of the property owner.

In 2011, the Maryland Court of Appeals issued a decision that made a previously unrecognized distinction between regular ice and "black ice," the difference being that black ice is much more difficult to detect. In Poole v. Coakley & Williams Construction, Inc. the Court of Appeals concluded that knowledge of the risk of black ice cannot be imputed to plaintiffs as a matter of law where the facts regarding the plaintiff's knowledge of the ice in question are disputed.

Under a theory of premises liability, a property owner will be liable for any injuries that occur on his or her property resulting from a defect in the premises that the owner knew or should have known about. A defect is defined as a condition or characteristic of the premises that poses an unreasonable risk of injury to persons who enter the property. Under the holding in Poole, black ice can be considered such a defect which can result in a property owner's liability for injuries resulting from its presence.

Property owners owe their guests a duty to keep the property in a reasonably safe condition, which is referred to as their duty of care. The duty of care owed by a property owner varies depending on the nature of the reason why the injured party was on the property. The duty of care falls into the following three categories:

Invitees

Invitees are persons who enter onto premises for the purpose of conducting business for the benefit of the property owner. Property owners have a duty to invitees to keep the premises in a reasonably safe condition and to repair or warn of known dangerous conditions.

The most common example of an invitee is the patron of a retail store. For instance, grocery stores create dangerous conditions all the time when employees mop or wax floors, making them slippery. The store cannot avoid this hazard unless it stops cleaning its floors. The store can, however, notify patrons of the potentially dangerous condition, therefore satisfying its duty to warn, and avoiding liability for injuries resulting from a fall. Property owners sometimes owe a heightened duty to guarantee the safety of children that may not be able to read or understand warnings or appreciate a particular hazardous situation.

Property owners also owe invitees a duty to regularly inspect their premises in order to discover potentially dangerous conditions. Accordingly, property owners can be found liable for injuries caused by hazards of which they did not have actual knowledge but should have known about.

Licensees

Licensees are individuals that enter a property for social reasons, such as guests at a party. Property owners owe licensees a duty to maintain their premises in a reasonably safe condition and to remedy unsafe conditions. Property owners also owe licensees a duty to warn them of known hazards on the property. Unlike an invitee, a licensee is not owed a duty to warn or remedy dangerous conditions that should have been discovered by the property owner.

Trespassers

Despite what any people might think, property owners do, in fact, owe a limited duty to trespassers on their property. Property owners owe trespassers a duty to prevent intentional or reckless injuries. A discovered trespasser, i.e. one that the owner knows is on the property, is also owed a duty to warn of known hazards that the trespasser could not ordinarily detect.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals that have been injured as a result of the negligence of property owners. If you or someone you know has been injured on the property of another, contact the attorneys of Brassel, Alexander & Rice, LLC today.

November 5, 2013

Maryland High Court Opinion Upholds Contributory Negligence Doctrine

Earlier this year, the Maryland Court of Appeals issued an important opinion in the case of Coleman v. Soccer Association of Columbia, which many legal scholars felt might toll the death knell for the doctrine of contributory negligence in Maryland.

Maryland is one of only five jurisdictions in the United States that continues to use the legal doctrine of contributory negligence. The doctrine of contributory negligence states that, if a plaintiff's failure to exercise due care contributes to the cause of an accident; he or she will be totally precluded from recovering damages from the other party.

For instance, if an individual is injured in a car accident caused by another driver's negligence, but was not wearing a seatbelt at the time of the accident, the injured party may be barred from recovering because his negligent act, in failing to wear a seatbelt, contributed to the cause of his injuries.

In Coleman, the plaintiff, James Kyle Coleman, was seriously injured when a set of goalposts fell on his face. Coleman, a volunteer soccer coach for the defendant, Columbia Soccer Association ("Association"), had jumped up and grabbed the posts' crossbar. The soccer goal was not anchored to the ground, and Coleman fell backwards, pulling the goal onto his face. Coleman suffered severe facial fractures that required surgery.

Coleman sued the Association, alleging that he had been injured by the Association's negligent failure to secure the soccer goal to the ground. At trial, the Association asserted the defense of contributory negligence, and a jury found that, although the Association had been negligent, so had Coleman, barring him from any recovery.
Coleman filed a petition for a writ of certiorari to the Court of Appeals, asserting one question to be address: whether the Court should retain the standard of contributory negligence as the common law standard governing negligence cases in the State of Maryland.

In a 5-2 majority, the Court of Appeals upheld the principle of contributory negligence, asserting that the question of whether to change to another model is one for the state legislature to answer. The Court opined:

The General Assembly's repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence....For this Court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly's repeated refusal to do so, would be totally inconsistent with the Court's long-standing jurisprudence.

One of two dissenters, Judge Glenn T. Harrell Jr. wrote, "With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct."

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligence of another. If you or someone you know has been injured as a result of another person's negligent conduct, contact the attorneys of Brassel, Alexander & Rice, LLC today.

October 21, 2013

Eleven Injured In Suspected Street Racing Accident

Earlier this month, WUSA9 reported that eleven motorists had sustained injuries in a car accident in Brandywine, Maryland, believed to have been caused by illegal street racing. According to the story, the crash occurred on October 6, at approximately 2:00 pm when a black Mercury Marauder speeding in the northbound lane of State Route 301 when it crossed the median and slammed into oncoming traffic, wrecking five other vehicles.

A total of eleven people were taken to area hospitals with varying degrees of injury. Some were airlifted while others were taken by ground. The cause of and circumstances surrounding the accident remain under investigation. Although Maryland State Police are still investigating the cause of the accident and still have yet to charge anyone, witnesses to the incident believe that drag racing may have been involved.

Street racing is not only illegal in Maryland; it also constitutes a special form of negligence referred to in legal terms as "per se" negligence. Generally, Maryland law requires that, in order to recover for an injury, the plaintiff must prove that the other party was negligent. A person is negligent when they fail to exercise "ordinary care" in their course of conduct. Proving negligence involves establishing the following elements:

• The defendant that caused the injury owed the plaintiff a "duty."
• The defendant failed to satisfy or breached his/her duty to the plaintiff.
• The defendant's breach of his/her duty caused some type of injury to the plaintiff.

Per se negligence is a legal doctrine wherein a person's actions are considered negligent merely because they violated a statute. When a statute exists imposing a duty upon a defendant, to establish a claim of per se negligence, the plaintiff only has to demonstrate that:

• The defendant violated the statute.
• The defendant's actions caused the kind of harm the statute was designed to prevent.
• The plaintiff was a member of class of individual's the statute was designed to protect.

Under the Maryland Code, street racing is illegal and punishable as a misdemeanor carrying a fine of $500 and/or 60 days. Accordingly, an individual injured as a result of the negligent, and illegal, street racing of another may be able rely upon the per se negligence doctrine in seeking recovery.

Statistics from the National Highway Traffic Safety Administration (NHTSA) indicate that approximately 49 people are injured in street drag racing accidents for every 1,000 individuals that participate. In 2001, the NHTSA reported that police listed street racing as a factor in 135 fatal crashes, a significant increase from 72 street-racing-related fatalities reported in 2000.

By its very nature, street racing is inherently dangerous and poses an extreme risk of injury and death to both participants and other motorists. The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent driving of another. If you or someone you know has been injured in a car accident, contact the attorneys of Brassel, Alexander & Rice, LLC today.