Articles Posted in Litigation

The Maryland Court of Appeals heard arguments yesterday in the case of Coleman v. Soccer Association of Columbia, et al. In the Coleman case, a Howard County jury found a Soccer Association negligent in its maintenance of a soccer goal which collapsed, resulting in the in an injury to the Plaintiff. Under Maryland’s Contributory Negligence law, however, the Plaintiff did not recover any damages after the jury found that the Plaintiff was also negligent, and Plaintiff’s negligence contributed to his injury.

Our Annapolis Maryland injury attorneys have years of significant experience representing accident victims and rebutting allegations of contributory negligence argued by Defense attorneys.

Under the Doctrine of Contributory Negligence, a Plaintiff who in any way is determined to be negligent – even if determined to be only one percent negligent – is precluded from recovering any damages from a negligent Defendant. The rationale is that the Plaintiff has contributed to his/her injuries.

Under a Comparative Negligence system, as advocated by the Plaintiff’s attorney in the Coleman case, the jury would be asked to assess the relative fault of the Plaintiff or Defendant. If, for example, the jury found the Defendant was 80% negligent and the Plaintiff was 20% negligent, Plaintiff’s damages would be reduced by 20%.

The Coleman case represents an effort on the part of a Plaintiff’s attorney to ask the Court to overturn the Doctrine of Contributory negligence, which was first adopted by the Maryland Court of Appeals in 1847 in the case of Irwin v. Sprigg. Maryland is one of only 5 states that still abides by a contributory negligence standard (the other four are Alabama, Virginia, North Carolina and the District of Columbia).

Although several bills have been introduced in the Maryland General Assembly to create a comparative negligence system, these bills have failed on multiple occasions, amid heavy lobbying from various plaintiff and defendant-friendly lobbying groups.

The main arguments advanced by the Plaintiff is that the doctrine of contributory negligence is not a just system in that injured Plaintiffs are denied relief even in cases where the Defendant is determined to be negligent. Defendants argue that the legislature, rather than the Court of Appeals, should establish the law. Additionally, other defense organizations argued that overturning the contributory negligence doctrine, would “[throw] a rock in the pond of Maryland court system and would spur years of chaos and litigation.”

The Court did not indicate when it would issue its decision, but typically takes several months to issue its decision. In the mean time, legislators may introduce another effort to legislate comparative negligence in Maryland.
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The Court of Special Appeals ruled this week that an exculpatory agreement created by a “commercial enterprise” executed by adults on behalf of a minor child are void and unenforceable as a matter of public policy.

Our Annapolis Maryland injury attorneys have years of experience representing those who have suffered catastrophic personal injuries caused by the negligence of others.

In Rosen v. BJ’s Wholesale Club, No. 2861 September Term, 2009, the Court of Special Appeals overturned a Baltimore Circuit Court’s finding that a pre-injury release agreement signed by a parent on behalf of her five-year old child fully released BJ’s for all liability as a result of injuries suffered by the five-year old on a supervised play center at BJ’s Warehouse.

When the family joined BJ’s in July 2005, the father executed a release agreement involving the use of an indoor playground at BJ’s called the “Incredible Kid’s Club.” The Club was a supervised drop-off point where members dropped off their children, while the adults shopped. Members’ children were not permitted to use the play center unless the family signed a release containing exculpatory and indemnification clauses. The agreement read as follows:
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In Meade v. Shangri-la, a closely-divided Maryland Court of Appeals reinstated a jury verdict that awarded damages against a Howard County Montessori School, in favor of a parent with a latex allergy who requested that the school cease using powdered-latex gloves when changing student diapers. The jury found that the School discriminated against the parent, when the school administrator requested that the parent withdraw her child from the school after the parent disputed the school’s rejection of her request.

Our Maryland injury attorneys have years of experience representing plaintiffs whose civil rights and rights defined by statute have been violated by others.

At trial, the Plaintiff argued that as a result of a severe allergy to latex, she requested that the school stop using latex gloves. After presenting the issue to the school administrator, the administrator initially indicated he would review the issue, but ultimately decided not to switch away from latex gloves since the school did not wish to switch suppliers. The administrator further explained that in an effort to accommodate the Plaintiff, he ordered staff members not to use powdered latex gloves on Plaintiff’s son and to allow Plaintiff to pick up her son at the school’s front desk so that Plaintiff did not have to venture further into the school to pick up her son.

Plaintiff followed up seeking a glove change once more so that Plaintiff would be allowed full access to the building and “be a part of [her] son’s preschool experience.” The administrator, who testified he feared litigation, responded with a request that Plaintiff withdraw her son from the school citing a clause in the school’s contract that essentially allowed the school to ask any pupil to withdraw for any reason.

At trial, the jury found in favor of Plaintiff finding that Plaintiff’s latex allergy was a physical impairment which substantially limited one or more of her major life activities and that the school denied her accommodations because of discrimination. She was awarded $1,683 in economic damages, $5,000 in non-economic damages, and $22,800 in attorney’s fees.

The Plaintiff’s law suit was based on a State statute and the Howard County Code, as opposed to the Americans with Disabilities Act (“ADA”). While the ADA, state, and county statutes may seem similar on their face in their efforts to avoid discrimination and promote reasonable accommodations to those with disabilities, the Howard County Code purports to address discrimination because of a “handicap,” while the Americans with Disabilities Act addresses “disabilities.”
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A Utah family who lost two children from a pesticide that was misapplied by an exterminator outside their home settled a lawsuit against the company that employed the exterminator for an undisclosed amount last month.

Our Annapolis Maryland Injury Attorneys have more than 30 years representing Plaintiffs who have been injured by the negligence of others, including home contractors.

The family’s lawsuit alleged that an exterminator for Bugman Pest and Lawn, Inc., placed Fumitoxin pellets within a burrow system that was less than 15 feet from the family’s home. Fumitoxin is a rat poison. As result of this pesticide application, which was contrary to the manufacturer’s specifications, five of six members of the family became sick, and the family tragically lost their 4-year-old and 15-month-old daughters.

The Utah Medical Examiner’s office found elevated phosphine levels in the bodies of the two children. State authorities attributed the elevated phosphine levels to inhalation of fumes from the rat poison.

The family’s lawsuit sought damages to compensate the family for negligence, infliction of emotional distress, nuisance and “abnormally dangerous activities” that were allegedly committed by the company and its employee.

The employee who administered the pesticide pleaded guilty in United States District Court in October, admitting that he applied Fumitoxin pellets within 15 feet of the family home in violation of Federal Environmental Protection Laws. He acknowledged that the application was inconsistent with the product’s labeling and exceeded the required dosage. Prosecutors recommended a jail sentence of six months, followed by six months of home confinement.

The company owner, Raymond Wilson Sr., pleaded guilty and will be banned from purchasing pesticides for three years, which will likely put the company out of business.

As a result of the deaths of the two children, the Environmental Protection Agency prohibited residential use of Fumitoxin. The Utah Department of Agriculture and Food also tightened accountability requirements, mandating that consumers be notified in advance if any product with a “Danger” label is used at their home.

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A Connecticut man who suffered a tramautic brain injury was awarded a $10 million verdict against Segway scooter company last week for the company’s failure to provide a helmet during a 2009 demonstration at Southern Connecticut State University.

Our Baltimore Maryland injury attorneys and Annapolis Maryland injury attorneys have more than 30 years of experience representing victims of traumatic head injuries as a result of another party’s negligence.

The Plaintiff, John Ezzo, was a student at Southern Connecticut where on September 16, 2009, Segway ran a program called “the Segway Challenge,” an event to benefit the Special Olympics. The program, which was held in the school’s ballroom, involved an obstacle course designed by Segway employees.

The Segway employees, however, did not bring helmets and Ezzo, at the suggestion of Special Olympic volunteers, rode the Segway through the obstacle course blindfolded. While riding blindfolded, Ezzo fell backwards and hit his head on the floor resulting in a traumatic brain injury.

As a result of the brain injury, Plaintiff’s counsel argued that Ezzo dropped out of college. He became a handyman, unable to pursue his dream of becoming a police officer.

The jury forewoman cited the manufacturer’s failure to follow its own safety requirements, which specified that its employees wear helmets while operating the equipment.
The $10 million that the jury awarded the Plaintiff was for non-economic damages as well as his permanent impairment.

Ironically, the owner of Segway, Inc., the manufacturer of the Segway HT also died after falling off of a cliff while operating a Segway. Jimi Heselden died in September 2010 after falling 80 feet.

Insurance companies, such as Progressive, have begun to offer Segway-specific insurance policies to cover accidents related to Segways.

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snowy path.jpgTwo recent plaintiff-friendly Maryland Court of Appeals decisions have refined the “assumption of risk” defense that is often raised in personal injury and accident cases.

Our Annapolis Maryland Accident Attoneys have years of experience representing plaintiffs in personal injury cases as a result of accidents, including slip and fall cases.

Both cases, Poole v. Coakley, and Thomas v. Panco Management, concern submission of personal injury cases to the jury in light of the defense of assumption of risk. In both cases, the trial judge did not submit the issue of negligence to the jury. The Maryland Court of Appeals held that both trial judges erred in their rulings.

The Maryland Civil Pattern Jury Instructions currently defines assumption of the risk as follows: “A Plaintiff cannot recover if the plaintiff has assumed the risk of injury. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger or reasonably should have known and understood the risk of an existing danger, and voluntarily chooses to encounter the risk.”

After these two decisions, the Civil Pattern Jury Instruction will likely be modified to indicate that a person assumes the Risk only if he actually knew of an existing danger, not just that he “would, should, or could” have known of an existing danger.

The Poole case concerned the liability of a construction company for the injuries of a plaintiff who slipped on “black ice” while walking through a stream of water through an otherwise icy parking lot. The nature of the “black ice” was such that the plaintiff did not actually know that the danger was present, and therefore the Court of Appeals held it was error to grant the defendant’s Motion for Summary Judgment on the issue of assumption of risk.

The Thomas case concerned the liability of an apartment management company for a tenant’s injuries after she slipped on “Black Ice.” Her testimony was that the “black ice” was positioned near the only entry and exit for her building. The trial judge granted Defendant’s Motion for Judgment, holding that the Plaintiff assumed the risk of her injuries. The Court of Appeals reversed holding that Plaintiff’s knowledge of the risk of slipping on black ice, and the voluntariness of her conduct were questions of fact to be resolved by the jury, rather than the trial judge.

Both cases will likely be retried, where a jury will determine whether the defendants were negligent.

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A Louisiana anesthesiologist who wrote a glowing recommendation on behalf of a fellow anesthesiologist to a hospital in Washington State, despite knowledge of the doctor’s habit of diverting Demerol from his patients, was ordered to pay $8.2 million to pay for the damages that resulted when the doctor and hospital was sued for medical malpractice.

Our Baltimore Annapolis Maryland medical malpractice attorneys have more than 30 years representing Plaintiffs who have been injured by medical errors.

According to a Report in Outpatient Surgery Magazine, Louisiana Anesthesia Associates (LAA) terminated Robert Lee Berry, MD, in 2001 over concerns that he had a problem with substance abuse. William J Preau III, MD was also a member of LAA and participated in the decision to terminate Berry. Even after this, however, Dr. Preau wrote a glowing recommendation to Kadlec Medical Center in Richland, Washington stating: “[Dr. Berry] is an excellent anesthesiologist. He is capable in all fields of anesthesia including OB, peds, C.V. and all regional blocks. I recommend him highly.”

Kadlec Medical Center hired Berry. One year later, Berry was under the influence, failed to properly administer anesthesia to a patient, and the patient fell into a permanent vegetative state. The patient’s family sued Dr. Berry and Kadlec medical center. The case was settled with Dr. Berry paying $1 million and the hospital paying $7.5 million.

Feeling misled by Dr. Preau’s letter, the hospital sought indemnity – repayment of their settlement and legal fees – by suing Dr. Preau and Louisiana Anesthesia Associates (LAA) for intentional misrepresentation, resulting in a new round of litigation in the United States District Court for the Eastern District of Louisiana.

The federal jury awarded $8.2 million to Kadlec for damages that resulted from its settlement with the patient and the medical damages, which was apportioned based on the comparative fault of Dr. Preau and Louisiana Anesthesia Associates. On appeal, however, the United States Court of Appeals for the Fifth Circuit reversed the judgment against LAA, because LAA provided only a neutral recommendation (i.e. a response only indicating that the former employee had been on its medical staff and does not vouch for his credentials). Moreover, the person who prepared LAA’s letter indicated that she did not know anything about Dr. Berry’s termination and other problems, which were kept confidential. See full text of the Appellate Court’s Decision.

The end result was that Dr. Preau was left to fulfill the entire $8.2 million judgment to Kadlec. He filed several lawsuits to have his medical malpractice carrier indemnify him, all of which failed. According to the Outpatient Surgery Article, Preau ended up satisfying the judgment in full.

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lion.jpgIf you haven’t heard yet, there are about 56 lions and tigers and bears that escaped and are 1 remaining monkey that escaped and is on the loose from a Zanesville, Ohio preserve Monday after the owner of the property, Terry Thompson, apparently decided to release all of the animals from his property and then decided killed himself. This has certainly disrupted life in Ohio, as the local school district canceled class in light of the threat of attack.

Our Annapolis Maryland injury attorneys and Annapolis Maryland Dog Bite attorneys often receive calls from those who have the misfortune of being the victim of dog bites from another’s pet. The law contemplates a remedy for a victim against the owner, although the remedy is different depending on whether the animal is a wild animal or domesticated animal.

Under Maryland law, an animal owner is Strictly Liable for injuries caused by wild animals as long as the injured person did nothing to bring about his or her injury. In other words, by the very nature of Mr. Thompson maintaining the lions, tigers and bears as pets, he is responsible for any damages they cause, whether it is damage to person or property. Since Mr. Thompson is now deceased, if one of Mr. Thompson’s animals attacks a human or damages another’s property, a claim will likely be made against his estate.

Domesticated animals, like dogs and cats, are treated differently. For an owner of a domesticated pet to be proven liable, an owner is not strictly liable for injuries caused by domestic animals unless the owner has knowledge of the animal’s dangerous propensities that are not common to the species. In other words, the owner has to know that the animal has the propensity to attack humans.

You might have heard the phrase that “every dog gets one free bite.” In other words, it is often misunderstood that unless the dog has bitten before then there is no owner liability. That is not always true, because an owner can also be liable for negligence when he exerts ineffective control over his animal where an injury is likely to occur.

If the dog has bitten a person before, however, obviously the owner is on notice of the animal’s tendencies and that certainly supports proving liability. If an owner knows that his dog is vicious, then the owner will be strictly liable for the injuries his animal causes, just like the owner of a wild animal.

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1160677_chicago_skyline.jpgA Chicago apartment management company settled Tuesday a wrongful death suit brought by the mother of a 24-year-old who suffered a severe brain injury and ultimately death after falling from the second floor porch of his girlfriend’s apartment.

Our Maryland attorneys have years of experience successfully representing Plaintiffs who have been catastrophically injured by accidents caused by the negligence of others.

The case settled for $975,000. The action was brought by Sean Heflin’s mother, Jane Heflin, and alleged that the porch railings were about 10 inches lower than the 42 inches required by the Chicago building code. The suit was brought against the apartment building’s owner, Stammich Management.

In Illinois, violation of an ordinance, establishes “negligence per se.” In other words, the fact that the Management company maintained railings that were 10 inches lower than the Chicago building code conclusively creates a presumption that the management breached a duty to exercise reasonable care. At trial, the Plaintiff would still need to prove that the management company’s breach of the duty caused the injuries and that Plaintiff suffered damages.

In Maryland, the law is subtly different. Violation of a statute or ordinance does not constitute negligence per se, but is generally considered evidence of negligence. In other words, Plaintiff still needs to prove that the defendant maintained a duty and breached his or her duty in addition to proving causation and damages.

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Two Ohio men sued a woman who in 2009 they pulled to safety from a burning vehicle , when they subsequently learned that the woman’s accident resulted when she was attempting to kill herself.

Our Maryland Accident Attorneys have significant experience representing plaintiffs who have been injured by another’s negligence.

The two men–David Kelley and Mark Kinkaid–claim that they were both driving when they saw a bumper lying in the roadway and gray smoke coming from a distance. The men hopped a barbed-wire fence, knocked down trees and slid down a steep embankment to attempt to assist the woman in the vehicle. The woman apparently told officers after the accident that she was arguing with someone the day of the crash and wanted to end her life.

Two years later, both have sued the woman in Marion County Common Pleas Court in Ohio seeking damages of at least $25,000 as a result of learning that the crash was her fault and suffering permanent injuries.

With regard to his injuries, Kelley states that his lungs were badly damaged from the heavy smoke and that he now can’t carry a laundry basket up the stairs of his home. Furthermore, he said the fire burnt the hair from his body and melted the cell phone in his pocket.

The Ohio case is based on a concept known as the “Rescue Doctrine,” that states that if people who are being rescued are negligent or reckless when they created the danger, they could be liable if a rescuer acted reasonably and can prove injuries.

Maryland recognizes the concept of the “rescue doctrine,” which is a narrowly chiseled exception to the defense of assumption of risk, which focuses on the element of voluntariness and applies to emergency situations involving imminent peril, in which an individual acts to save the life or property of another. See, e.g., Warsham v. Muscatello, 189 Md. App. 620, 645 (2009). This would undoubtedly be asserted by the Plaintiffs if this case arose in Maryland.

Maryland also, however, recognizes the common law defense of “assumption of risk.” An assumption of risk is a defense to negligence if the plaintiff 1) had knowledge of the risk of danger, 2) appreciated the risk, and 3) voluntarily exposed himself or herself to that risk. See, e.g., Crews v. Hollenbach, 358 Md. 627, 643-44 (2000). This defense would likely be asserted by the defendant if this case rose in Maryland.

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