Maryland Injury Lawyer Blog

Last week, the Court of Special Appeals of Maryland decided the case of Davis v. Martinez. This was an appeal where the trial court entered an order that permitted the underinsured motorist insurer (State Farm) to participate in the trial anonymously. State Farm was never identified to the jury, the jury was not told about the plaintiffs’ claims against State Farm, the jury was never told who State Farm’s lawyer represented, and the jury was never told that State Farm’s expert medical witness was testifying on behalf of State Farm.

I know what you’re thinking if you are a Maryland accident attorney - “But wait, doesn’t King v. State Farm say that the UIM carrier must be identified to the jury in cases where the insurer is a party?” Well, yes. That is exactly the holding in King. You’d think that would be the end of it, right? Of course not.

We have still been getting motions to conceal the identity of the UIM carrier, but in cases where (unlike in King) the insurance company is not the only defendant. Instead of the insurance company bringing the motion, the motion is made by the negligent driver, who argues that they will be prejudiced because they may be more susceptible to a large verdict by being associated with an insurance company whom the jury may view as a “deep pocket.” They argue that King can be distinguished because there the insurer was the only defendant, so there was nobody else to be prejudiced. They claim that it is different when there is another party who could be harmed by identifying the insurance carrier.

Now, this is a stupid distinction, because the rationale in King was that it was an error to conceal the identity of a party to a lawsuit because doing so harmed the integrity of the jury system by permitting “charades at trial,” and causing juries to speculate about the identity of the parties and who the lawyers in the case really represented. One defense attorney who has brought these motions has said that they are granted about half the time.

Continue reading "Uninsured Motorist Claims: We Really Can Name the Insurance Company" »

An insurance policy is a contract. Insureds are obligated to read and understand their own insurance policy.

Right? Except no one reads an insurance policy. I'm not just taking about Joe Six Pack here. . I'm talking about you, my dear reader: You, me, all of us. Why? Because our busy and lazy lives don't afford us the time to do it. "Just give me the nutshell" is the mantra even insurance lawyers have in their personal lives.

The problem with this is that there are rare instances where reasonable people would expect insurance coverage but they don't because they didn't read their insurance policies. What do we do in these cases when we know that it is reasonable to expect coverage?

The Maryland Court of Appeals gave the wrong answer to this question in Stickley v. State Farm last month. In this case, the plaintiff was riding as a passenger in a car driven by her husband when her husband negligently drove into an intersection and was struck by another car. The accident killed the plaintiff’s husband and left her with serious injuries. At the time of the accident, the plaintiff and her spouse had a motor vehicle liability insurance policy with State Farm Mutual Automobile Insurance Company, and an umbrella policy with its subsidiary State Farm Fire and Casualty Company. No, I have no idea why they do it this way.

Continue reading "Your Umbrella Policy Does Not Say What You Think It Says" »

The Maryland Court of Appeals issued an opinion in TransCare v. Murray last week.

This medical malpractice involves the transportation of the minor Plaintiff by helicopter from the Emergency Department at Easton Memorial Hospital in Talbot County, Maryland to the Pediatric Intensive Care Unit at the University of Maryland Medical System in Baltimore City.

The first battle in this case, the battle for venue. Plaintiff filed suit in Baltimore. Plaintiff argued that TransCare Maryland has its resident agent in Baltimore City, (2) the patient's medical records show that the doctors at Easton called the University of Maryland ExpressCare, which is located in UMMS in Baltimore City in order to effectuate a transfer from Easton to Baltimore City, and (3) air transport went to the University of Maryland to pick up a team of health care providers and then transported those people to Easton.

Plaintiff's lawyers also make another argument that we have tried to make as well (and also failed). If you need air transport during a serious medical emergency, this affects everyone in Maryland, including Baltimore City residents, in an equal manner.

Judge Sylvester S. Cox, sitting as Motions Judge in the Circuit Court for Baltimore City, found that while venue was proper in Baltimore City, Talbot County was the more appropriate venue. Tough blow. Let's face it, almost any personal injury case has greater value in Baltimore City than it does in Talbot County.

Let's get to the facts. Plaintiff had trouble breathing due to congestion and was rushed to Eastern Memorial where he was fitted with an endotracheal breathing tube. However, because the hospital was not equipped to handle intubated children, the hospital arranged for a helicopter to transport the plaintiff to a pediatric intensive care unit at another medical center. On board the chopper was an employee of the defendant, a commercial ambulance company under contract to provide ground ambulance services between the medical center and area hospitals. Shortly after take-off, the plaintiff’s endotracheal tube became dislodged, which blocked his airway and led to a drop in his heart rate and oxygen blood level. Members of the flight team scrambled to find an air mask, but could not locate it. The helicopter then made an emergency landing, where the crew located the mask and reintubated the plaintiff. The plaintiff’s cardiac activity returned to normal and the helicopter completed its trip to the medical center.

The plaintiff filed suit alleging medical malpractice. According to the plaintiff, the employee of the defendant failed to provide the requisite standard of care, and that the defendant was liable under respondeat superior. The plaintiff also claimed that he was left blind, deaf, and mentally disabled as a result of hypoxic brain injury from the incident. The defendant moved for summary judgment, arguing immunity arising from the Good Samaritan Act and the Fire and Rescue Act. Judge Sidney S. Campen denied the motion but then reversed himself and granted defendant's Motion for Reconsideration of their Motion for Summary Judgment. How often does that happen? Plaintiff appealed and the Maryland Court of Special Appeals reversed, ignoring the venue issue - a dead loser on appeal anyway - but finding that defendants could not use the Good Samaritan Act as a shield. Defendants than appealed to the Maryland high court.

Continue reading "Good Samaritan Act Malpractice Opinion" »

The Maryland Court of Special Appeals issued its opinion a few weeks ago in a negligence per se case, Paul v. Blackburn Limited Partnership. If you are a personal injury lawyer in Maryland, this is not optional reading. Because I'm betting money someone is going to win a legal malpractice case in Maryland one day because they did not heed the implicit lesson that just might be in this case.

The defendant in this case owned an apartment which had an outdoor pool. Unfortunately, you know where this is going. Just about every pool case is the worst case ever. A three year-old boy wandered into the closed pool area. When the pool manager and lifeguard unlocked the gates, they found the plaintiff’s son unresponsive and submerged in the water.

(The question you have to be asking - the one far more important than the legal issues in this case - is how on earth did this happen? The boy's 10 year-old half-brother was watching the child. The boy threw a toy, the 10 year old ran down a hill to get it, leaving the child alone, and when he got back he did not find the boy. I will have a 10 year-old the same time I have a three year old. I also have a swimming pool.)

As a result of the incident, the plaintiff’s son suffered a severe anoxic brain injury, leaving him nonverbal, visually impaired, dependent on a gastric feeding tube, and requiring constant care from others. The detective investigating the incident concluded that the plaintiff’s son had managed to squeeze inside through the front gate, because the lower half of the gate was loose. In addition, some parts of the fence could be pulled open due to missing metal crossbars.

The plaintiff filed suit alleging negligence per se and negligence. Quick question: When you think you may have negligence per se, do you plead it in the complaint? You do? Okay, you're a big liar. Our law firm has never done it and I have yet to find anyone who says they plead negligence per se as an ordinary practice. Heads up: I still can't imagine a court kicking the case if you don't, but as you will see below, you really don't want to take the chance because the court here seems to be assuming that it has to be plead in the complaint. It is like I just told my law partner, I can't imagine in a million years a court would actually require you to plead this in the complaint. But when the appellate decision on my case when I failed to mind the ruling in this case was coming down, I would be on the edge of my seat (You may not like this sentence, but I don't know how else to day it). One rule of personal injury practice: do everything you can easily do without any risk of harm if you would be sitting on the edge of your seat when you were called out for your failure to do it.

Anyway, incredibly, the plaintiff's lawyer in this case did plead negligence per se, claiming in the complaint that the defendant was negligent per se by failing to comply with Maryland's COMAR regulations, the Montgomery County Code "MCC", and the Code of Montgomery County Regulations (“COMCOR”). Second, the plaintiff contended that the defendant was negligent in breaching its duty of care to maintain the pool in a reasonably safe condition for all residents of the apartment.

Continue reading "New Maryland Opinion on Violation of a Statute and Causation" »

Last summer, the Maryland Court of Special Appeals decided Dixon v. Ford Motor Co. (discussed by me here) in which the court reversed a $15 million verdict (reduced to $6 million by the cap on noneconomic damages, and down to $3 million because of a joint tortfeasor settlement), finding that although expert testimony about the particular estimates of asbestos exposure was impermissible, the expert can testify as to the ranges of exposure and their approximate hazards... but simply saying there is "more risk" without an estimate is not going to get you there. Basically, the path the court suggested was having the expert testify using plaintiff's contentions as hypothetical facts and estimate the likelihood that plaintiff suffered various exposures to asbestos, as well as the likely risks consistent with those possible exposures based on epidemiological data.

The case has been appealed to the Maryland Court of Appeals and has now been briefed. I read the plaintiff's brief. They are arguing largely what I did in my blog post (yet they didn't cite me!): the jury was in perfect position to make the call and they made it.

The Coalition for Litigation Justice and Product Liability Advisory Council, two shameless corporate hacks that have never before seen a viable lawsuit in their lives - actually they are cool with lawsuits from anyone who is not injured (their worldview: a civil justice system only for big company battles and, of course collecting debts from people) - filed amicus briefs arguing essentially that it does not matter if everyone using common sense knows where the exposure comes from - plaintiff can't prove it on a hyper technical level and therefore Ford should get a pass on the harm they caused. (I think that was what they argued... I couldn't bear to read them all.) Does the court really read this garbage from cover to cover? Has a single appellate opinion in human history ever been swayed by one of these briefs?

Anyway, it will be interesting to see how the court deals with this. Funny thing is that the jury was out for an hour and a half in this case. If they try it again, Ford is just going to get popped again. It would be hard to find an appellate opinion in a case this big with less on the line... unless the Maryland high court kicks the case all together based on the nonsense in these amicus briefs.

The Court of Appeals of Maryland decided a negligence case, CSX Transportation, Inc. v. Pitts last Thursday. This blog post goes deep into issues that are related to the Federal Employers Liability Act (“FELA”). Looking back on it, I probably would not have spent this much time on it because I don't think FELA is a hot topic to most of you and you may not want to get deep in the weeds of this case. But if you are handling FELA cases, this is obviously a must read. You can get more details on the verdict here, which also links to an article on this case.

The plaintiff filed suit in Baltimore City under FELA, alleging that the defendant railroad company was negligent in using large ballast instead of small ballast on the tracks. (Ballast is just crushed rock. Large ballast is used to support railroad tracks, while small ballast is used for walking surfaces.) The plaintiff, who had worked for the defendant for 40 years, claimed that walking on the large ballast caused him to develop severe osteoarthritis in both knees. Over the long course of his employment, the plaintiff walked anywhere from half a mile to six miles a day on the job as conductor, brakeman, fireman, hostler, or engineer. The plaintiff first began to feel knee pain in 2003 when he was in his early 50s, but he did not see a doctor until 2007. The plaintiff discovered then that he had osteoarthritis and subsequently brought an action for recovery. Plaintiff filed a lawsuit and received a $1,779,000 verdict from a Baltimore City jury.

Continue reading "Verdict for Railroad Worker in Baltimore City Affirmed" »

Last week, the Maryland Court of Appeals decided 100 Investment Limited Partnership v. Columbia Town Center Title Company. This is a business transactions case so it is a little outside the usual purview of this blog. But it talks duty of care in tort cases which is spot on a topic of this blog and vicarious liability. It also talks about contractual indemnification which is a topic I have taught and published on it in the past. So I thought a quick write-up might be of interest. If you are looking for the usual personal injury fare, please drive through and check back tomorrow.

Continue reading "Intersection of Tort and Contract: New Maryland High Court Opinion" »

Insurance companies are sometimes arrogant about [fill in the blank]. One phrase that fits neatly into that blank is "pretrial obligations." The insurance company is not a party to the case and it feels at least a little outside the reach of a judge's fist.

Judges used to the fear of that fist can get pretty angry when their orders are brushed aside as the insurance company found out in Station Maintenance v. Two Farms, decided on Thursday by the Maryland the Court of Special Appeals.

Plaintiffs in this case filed suit in Baltimore Court alleging that approximately 5,400 gallons of gasoline that had leaked out of defendant's underground storage tanks at its facility on Pulaski Highway, in Baltimore, Maryland, contaminated their property. Plaintiff settled the case for $2.7 million and assigned their claims against another defendant to the settling defendant. The case proceeded along. The court ordered the parties to appear at a settlement conference and for the insurance companies to send a senior officer or employee of both insurance companies to come with settlement authority up to the full limits of its policy.

You can guess what happened next. The insurance company for one of the parties - Mid-Continent -didn't post for one of the parties. Originally, the other defendant (now the plaintiff, really) sought attorneys' fees and costs but quickly realized he was not reaching far enough, and asked for a default judgment in the amount of one million dollars. Judge granted the motion. The question was: can the settlement judge do that?

Continue reading "New Sanctions Opinion" »

One of my 2013 resolutions is to stay on top of - and hopefully write a post on - every single new personal injury related opinion written by our state appellate courts this year.

I have stuck to this resolution although, arguably, I have been aided by the fact that there have been no new Maryland personal injury appellate opinions yet this year. But stay tuned.

An opinion in the U.S. District Court of Maryland last week began like this:

This case is rooted in a hunting trip in South Africa, during which Dennis Danner, Alexander Danner, and Michael Coletta, plaintiffs, each killed a “trophy quality” male lion. The lion skins and skulls (the “Lion Trophy” or “Lion Trophies,” or “Cargo”) were shipped to the United States for tanning and taxidermy, but at some point were lost in transit. The Cargo was found several months later at a warehouse in Vancouver, Canada. By that time, two of the Lion Trophies had suffered irreparable damage, allegedly due to exposure to moisture and bacteria.

Oh, my. Plaintiff's hunting trip with his son cost $250,000. He sued the freight companies for nearly $100,000 because not bringing home these dead lions just ruined all of the fun.

Judge Ellen Lipton Hollander knocked the claim back to a whopping $3,302.91, finding that the Montreal Convention imposing strict liability for damage to or loss of cargo applied to the case. (No, I don't know anything about the Montreal Convention either.)

The court was also presented with an interesting legal issue as to whether the federal common law collateral source rule applied when there is not tort liability. Defendants argued that since Plaintiff was compensated for his loss to the tune of $47,000 in insurance proceeds, he should not be permitted to recover anything. Judge Hollander disagreed and found that the collateral source rule does apply, finding that the logic of rule still applies and the defendants should not be the "gratuitous beneficiaries" of an insurance benefit that Plaintiff purchased.

My sources tell me that the defense lawyers failed to make the more obvious argument: anyone who would blow $250,000 to go shoot, kill, and stuff Mufasa and Simba don't deserve access to an equitable doctrine like the collateral source rule.

You can find the court's opinion in Danner v. International Freight here.

The 4th U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment ruling dismissing a trucking dispatching system manufacturer from a personal injury accident lawsuit. The court ruled that the company could not be responsible for a crash allegedly caused by a texting driver.

Really interesting facts are presented in this case. Plaintiffs' lawsuit arose from a truck crash on Route 40 in North Carolina. The defendant driver in his loaded tractor-trailer rear-ended a number of cars in front of him. Rear end truck accidents are probably the least likely to cause a death. Tragically, this was a relatively rare exception. One of the plaintiffs' infant children was killed.

Plaintiffs sued the usual suspects in a truck accident case but also sued a company that made a texting system located in truck. Plaintiff valiantly made two arguments: (1) the texting system required the truck driver to take his eyes off the road to view an incoming text from the dispatcher, and (2) permitted the receipt of texts while the vehicle was moving.

The logic is pretty simple. I can't use the GPS in my car when the car is moving. But, ultimately, the trial court found that the only legal proximate cause was the driver's inattention to the road, not the texting device itself.

Ultimately, it is hard to argue with the court's logic. The world is rich with potential distractions. It is the driver's responsibility to avoid those distractions.

You can find the court's opinion in Durkee v. Geologic Solutions Inc. here.

• Maryland Law on Texting and How Accident Lawyers Approach Cases Where the Defendant Was Texting
• Overstating the Texting While Driving Case
• Cell Phone Related Accident Statistics in 2009
• Stopping Texting and Handheld Phone While Driving
• Text Messaging While Driving

Governor O'Malley added 7 new Maryland judges yesterday. Most notably, the Governor appointed Douglas R.M. Nazarian to the Maryland Court of Special Appeals.

This is not a name that resonates with personal injury lawyers in Maryland. Mr. Nazarian has been the chairman of the Public Service Commission since 2008. I can't speak to his qualifications although he went to Yale and Duke and was at Hogan & Hartson for a while (a firm that rejected me after my interview with now U.S. Supreme Court Chief Justice John Roberts: read the third link). So the smart money says he is probably pretty bright. But, boy, he has a tough job ahead of him. I'm always amazed at how much appellate judges need to know about personal injury law and that is just a one piece of the large puzzle they need to understand in amazing detail. I would think it would a much easier transition to come from the trial court where you can build more slowly into become a jack of all trades that our appellate judges need to be.

The Governor also named to the Baltimore City Circuit Court:

• Christopher Panos (elevated from District Court)
• Philip Senan Jackson (from U.S. Attorney's Office)
• Melissa Marie Phinn (a Baltimore personal injury and criminal lawyer)
• Julie Rebecca Rubin (commercial litigator at Astrachan Gunst Thomas Rubin)

There were also two judge appointed to the Baltimore County Circuit Court and a District Court judge in Carroll County.

• Michael Thurston Pate, a former prosecutor that has a general practice in Towson, to Baltimore County Circuit Court
• Kimberly Michelle Thomas, an estate lawyer in Baltimore City, to the Baltimore County Circuit Court
• Brian David Green, an assistant public defender in Carroll County, to the Carroll County District Court.

Congratulations to all of these new judges.

On Christmas Eve, the Maryland Court of Special Appeals issued a treatise of an opinion written by retired Judge Charles E. Moylan in Antar v. Eagan. I'm not going to give you a complete analysis because it is Christmas, but this case is worth talking about for Maryland personal injury attorneys, as it highlights the perils of filing suit where there are two possible jurisdictions. The plaintiffs really got a raw deal in this case, although I think they probably could have avoided the problem with more careful treading. Whether Maryland law truly reflects the court's holding here is something for the Maryland Court of Appeals to decide.

Plaintiff sued Defendant in Pennsylvania, despite the fact that they had jurisdiction in Baltimore City. Why leave Baltimore City, a jurisdiction that the anti-lawsuit folks tell us is "Easy Street" for Maryland plaintiffs? Well, this was a fire insurance case where the plaintiff alleged first party bad faith. Maryland's first party bad faith law is somewhat of a joke, so they went to Philadelphia (which is considered more favorable than Baltimore for plaintiffs anyway as it turns out).

The Philadelphia County court dismissed the case for forum non conveniens with leave to refile their lawsuit in Maryland. Plaintiffs instead appealed and lost. Then, they came back to Maryland and filed suit. Defendant won (again), this time on the statute of limitations.

Continue reading "Plaintiffs Forum Shop and Lose Entire Case: New Maryland Court of Special Appeals Opinion" »

Anyone who can blithely throw together a joint tortfeasor release in a malpractice or other complicated tort claim without reading the case law 10 times is either an absolute expert on these releases or suffers from an extreme case of irrational confidence. Usually, in my experience, it is the latter.

The job of the Maryland appellate courts in dealing with this unavoidably complicated maze is to give Maryland attorneys clear and concise rules in navigating the path. Given a chance to do this in Mercy Medical Center v. Julian, the court took what I think - and more important the dissent thought - is a different path that might lead to more confusion or, maybe better put, lack of trust that the settling parties know the ramification of the settlement. If I'm right about this, it will have a chilling effect on parties setting in case with multiple defendants.

This case involved a lawsuit alleging that medical malpractice caused cerebral palsy and the ultimate the death of a child. Just awful. (I wanted to throw up a picture with this post but I could not think of one even remotely appropriate.) Plaintiffs and Mercy Hospital settled out before trial. The release - called in Maryland a "Swigert Release" [see a sample here] - with Mercy provided for a pro rata reduction of any judgment against doctor defendant if Mercy was found to be a joint tortfeasor.

Before trial, the doctor's attorney sought and received production of the release with Mercy. The doctor did not cross claim, third party, or otherwise make any effort to have a determination made as to whether Mercy was liable. The jury hit the doctor with an $8,000,000 verdict, reduced to just under $2.2 million by the cap on non-economic damages.

So who pays what? Shockingly, disagreement ensued so everyone sued everyone again. The doctor sued Mercy for contribution. The plaintiffs - who just want their money - sue the doctor again, asking the court to rule that he is not entitled to contribution. The doctor, seeking a declaration that he was not entitled to contribution. The Maryland Court of Special Appeals lessen this train wreck a little by appropriately merging the two actions.

Continue reading "Joint Tortfeasor Releases in Maryland: Legal Headaches" »

Everyone has their soapbox issues where they maintain the rest of the world is crazy and sanity would be restored if everyone would just listen to us. I have mine, you have yours. Usually, at least for me, few others are paying attention and the world continues to be the world.

One of these issues for me is ad damnum clauses. Here is what happens time and time again: (1) a personal injury lawyer in Maryland file lawsuits and meaninglessly ask for a zillion dollars,(2) the Baltimore Sun and the Maryland Daily Record dutifully report the amount sought as though it actually matters, (3) the people of Maryland roll their eyes about a civil justice system that has run amok, (4) these people become jurors one day and walk in with said eyes still rolled.

The problem is two-fold. First, attorneys sometimes file for ridiculous amounts to draw attention to ourselves. Yes, that is a self-inflicted wound, but it does not lesson the pain for the rest of us.

But the other problem is that we have a duty to our client not to, you know, commit legal malpractice. I have long maintained that it is malpractice not to ask in the ad damnum clause for more than your client could conceivably recover because if you score with the jury more than you expected and you go over the ad damnum clause, you have two problems. First, the judge might refuse your motion to amend the complaint to comport with the verdict. But the even bigger problem is that you have loaded the gun for plaintiff's remitter motion. "They didn't even ask for this much," they will surely whine in the motion.

I've buried the lead to this story. Sorry. The good news is that under new Maryland Rule 2-305 that will be effective in January, plaintiffs' lawyer are no longer even allowed - as I read the rule - to state a specific amount if the damages sought exceed $75,000. Instead the complaint should include the general statement that the amount the plaintiff seeks is more than $75,000.

Continue reading "New Ad Damnum Law in Maryland" »

Today, I will break down the election from every conceivable angle and offer my opinions on how America chose and why.

Wait, don't go anywhere. I'm kidding. I'd rather eat my own kidneys then talk about politics for another second. Let's get back to developments in Maryland law.

The Maryland Court of Appeals issued an opinion in two consolidated cases against WMATA last week in the Tinsley and Hodges cases (full opinion here). Basically, an agreement (the WMATA Compact) ratified by Congress in the 1960s was meant to create an entity to run a mass transit system in and around the District of Columbia. No one argues that the Washington Metropolitan Area Transit Authority was a bad idea. Having a system that crosses state lines is key for the Washington metropolitan area.

But, tragically in my opinion, lawmakers decided to make life for WMATA more pleasant by giving them a free ride in many cases to negligent cause injury and death without taking responsibility. Using the states' ability to prevent lawsuits against themselves, they made the WMATA a “pass through,” keeping those rights as held by D.C., Maryland, and Virginia. Of course, these governments waive that immunity on a criminally small level, allowing some handcuffed lawsuits against them. (Tragically. Criminally. I'm using incendiary language this morning in honor of the fallen election season.)

Anyway, for the WMATA agreement, it was decided that injured people could not sue WMATA for exercising governmental functions; it was also decided that people could sue WMATA for proprietary functions (like the average car or bus accident). Courts use a test to decide whether any particular action is governmental or proprietary, based on whether the action involves discretion or choice “grounded in social, economic, and political policy.”

Continue reading "The WMATA Can Do Whatever It Wants to You: Maryland Law Is That It Is Open Season on Passengers" »

Maryland has shut down for Hurricane Sandy. Our office is closed today and most courts have already closed for tomorrow. You can find the list of Maryland Court closings here.

I'll put up a new post shortly. It the meantime, everyone stay safe.

Can we sign away our kids' tort rights?

Tort lawyers typically don't spend a ton of time worrying about whether their clients have indemnified the defendant for their own negligence because it rarely comes at issue. You usually don't contract with the person causing you harm unless you are a patient and the world has not gone so mad as to allow doctors and hospitals to get patients to waive future malpractice claims against them. But a few times a year, a case will come across my desk where the injured victim did sign something that arguably waives their right to bring a personal injury claim against the party responsible for their harm.

There are arguments on both sides of this. One side says adults should be able to agree by contract to whatever they want, including waiving possible tort claims. The other side points out that this is usually the small print on the contract between parties with unequal bargaining positions. Stated a little differently, if you and I go white water rafting, and I refuse to go based on some silly waiver language with the guy giving us the rafts, well, I don't think you are ever going to ask me to go on a trip with you again. (There are also good moral hazard arguments by those who think consumers should be able to waive their tort rights.) In any event, I see both sides of the argument.

There is no such argument pending in Maryland's appellate courts. The case law is clear that consumers can waive their rights to bring a personal injury claim by contract. The Maryland Court of Special Appeals this month in Rosen v. BJ's Wholesale Club looked at a thinner slice of that question: can parents waive the rights of their minor children?

Here's what happened. Plaintiffs' take their three kids to BJ's in Baltimore County (either Owings Mills or Hunt Valley I think). They park them in the BJ's Kids Club. (I never even knew BJ's had a kid's club.) The kids' club is a free babysitting service for kids to use while their parents shop. I can't imagine it being all that nice but it reads well on paper: fixed playground structure with multiple levels, activities and entry points, murals, wall-mounted play stations, and movable play equipment. BJ's had the parents sign a "If we hurt your kids you can't sue us" waiver. I might be paraphrasing a bit.

I'm being a little whimsical in my telling of the facts but the story turns serious. The parents' five year old boy falls off a "Harry the Hippo” and falls, hitting his head at the play center and then fell approximately thirty-eight inches, striking his head on a concrete floor covered with a thin layer of carpet. The boy suffered life threatening injuries. The boy went to the hospital. A CT scan found a large, acute epidural hematoma in the right temporal lobe of his brain. He was then transported to Johns Hopkins Hospital, where he underwent a craniectomy to relieve the fluid buildup in his brain.

(Post Aside: When I started reading this case, I was thinking the facts were going to be weak for the plaintiffs. But this is a good case on liability, right? You can't have a concrete underneath a climbing area. If the kid fell off a chair or something on concrete that would be one thing. But under a hippo thing that you climb on? That does sound like negligence to me.)

The issue is whether a parent may waive any and all future tort claims that his or her child may have. It was a case of first impression in Maryland. Baltimore County Circuit Court Judge Thomas J. Bollinger ruled in favor of BJ's, finding that summary judgment was appropriate because there is no "alternative law for adults who sign exculpatory clauses for their children." Plaintiffs appealed.

Continue reading "Can Parents Sign Away Minor Child's Potential Tort Claims?" »

We frequently get letters and phone calls from prisoners. It is hard not to discount these cases. It is not just the "People in Jail Are Less Likely to Be Credible" problem. It is also the "People Who Have Tons of Time on Their Hands Tend Chase Windmills" problem that is demonstrated by the 10 page letters that incarcerated people send to lawyers setting forth their grievances.

Of course, this bias leads lawyers to miss a lot of cases that are both lucrative and serve the interests of justice - Because we criminally mistreat our prisoners. But, because you have to kiss so many frogs to find a princess with prisoners, most lawyers just ignore the cases. We are probably guilty as charged on this one.

In fact, the only kind of prisoner cases we have taken are cases where prisoners working on a road crew were hit by a prison owned or, better yet, a third party vehicle. Those are the facts of Goss v. Jennings, a "pedestrian" wrongful death case decided by the Maryland Court of Special Appeals last week.

While working on a litter pickup detail on the Capital Beltway (I-495) in Landover in Prince George’s County, a man was struck and killed by a dump truck. Plaintiffs filed a wrongful death/survival action against the driver, the Department of Corrections, and the Maryland State Highway Administration. The jury then returned a verdict against both the dump truck driver and the state of $2,025,000: $350,000 for the survival action and $1.675 million for the wrongful death action. Pursuant to the cap on non-economic damages, the trial court reduced the wrongful death awards to 150% of the wrongful death cap in 2007 of $680,000 ($1,020,000).

The state got out on a motion after the verdict which was fine with plaintiffs because they had a defendant with insurance coverage and didn't need to deal with the $200,000 cap. The truck driver and trucking company appealed. They made a number of accident specific arguments that were not particularly interesting for our purposes. They also argued that the trial court erroneously imposed two statutory caps when only one cap applied.

Continue reading "Two Caps in Maryland Wrongful Death Cases: New Appellate Opinion" »