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Defenses

D.C. Workers Compensation Act Amended to Provide for Reversion of Third Party Claims

The District of Columbia Workers Compensation Act provides for an automatic assignment of the right to sue a third party to the employer if the person entitled to compensation does not file suit within six months after being awarded compensation in an order. D.C. Code § 32-1535(b). This provision had been applied to bar a worker from filing a civil action for damages against a third party tortfeasor more than six months after being awarded worker’s compensation benefits in an order, even if it operated to shorten the general three year statute of limitations for the worker to file suit. Cunningham v. George Hyman Constr. Co., 603 A.2d 446, 447 (D.C. 1992).

The District of Columbia Council recently amended the Act to allow for a reversion of the right to sue third party liable for the worker’s injury if the employer does not file suit against the third party within 90 days. D.C. Law 20-159, § 2. (Effective February 26, 2015). This amendment applies to causes of action for negligence for which the three-year statute of limitations [generally applicable to negligence claims] has not yet expired. Id. § 3. 

With this amendment, the Council modified the assignment provision to have the right to file suit against the tortfeasor revert back to the injured worker if his employer does not file suit within 90 days.  This change is akin to the Longhore and Harbor Workers’ Compensation Act 33 U.S.C. § 933(b) (1988), as amended by Pub. L. No. 98-426 § 21(a) (1984) ("If the employer fails to commence an action against such third person within ninety days after the cause of action is assigned under this section, the right to bring such action shall revert to the [employee].") and the Maryland Workers’ Compensation Act, where the worker’s right of action is assigned to the employer when the Commission awards compensation benefits, but it reverts back to the worker if suit is not filed within two months after the award. Md. Code, Labor and Employment § 9-902.



Posted by D. Stephenson Schwinn on 09/02/2015 at 01:59 PM
DefensesDistrict of ColumbiaWorkers CompensationPermalink


Requirements to plead a legal malpractice action arising from a criminal matter in Virginia

In Desetti v. Chester, the Virginia Supreme Court considered the issue of whether a plaintiff sufficiently pled a claim for legal malpractice that occurred during the course of an attorney's misrepresentation of the plaintiff in a criminal matter.

The plaintiff, her husband, and her son were all involved in a criminal incident with a law enforcement officer at their home.  Based on that incident, she was charged with felony assault and battery of a law enforcement officer and a misdemeanor obstruction of justice count.  Her husband and son were charged with misdemeanor obstruction of justice counts.  They all retained the same defense counsel.

The charges against the husband and son went to trial first.  The defense attorney called the plaintiff as a witness, and during the course of her direct examination, she admitted that she struck the law enforcement officer who had entered her home.  The husband and son were found guilty.

Next, the prosecution gave the defense attorney a plea offer, which would allow her to plead guilt to a misdemeanor assault and battery.  The defense attorney never conveyed this offer to the plaintiff.  Instead, he advised her to plead not guilty and go to a jury trial because "she had a 'slam dunk' case."  He also allegedly failed to inform her that a guilty verdict on her felony charge would entail a mandatory minimum sentence of six months of incarceration.

The Plaintiff's trial then took place.  The Plaintiff alleged that the defense attorney made the unilateral decision, without consulting with her, to reject the prosecution's jury instruction that incorporated the lesser-included offense of misdemeanor assault and battery because the defense attorney was employing a "felony or freedom" strategy.  At trial, the jury returned a verdict on the felony assault and battery charge, and the Plaintiff was sentenced to the mandatory minimum of six months of incarceration.

While serving her sentence the Plaintiff filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel.  A year later, the habeas court granted her petition on the basis that the defense counsel's ineffective assistance of counsel prejudiced the plaintiff in a criminal matter, because of (1) the defense counsel's concurrent representation of the three defendants; (2) the defense counsel's failure to convey and explain the plea offer; (3) the defense counsel's failure to advise and consult with the plaintiff about the inclusion of a lesser-included misdemeanor offense in the jury instructions.  The habeas court vacated her felony assault and battery conviction.

The Commonwealth elected to retry her for her actions giving rise to the original charges.  The Plaintiff this time pled guilty to misdemeanor assault and battery.  She was convicted of misdemeanor assault and battery and was sentenced to ten days of incarceration, with all ten days suspended.

The Plaintiff then brought a legal malpractice suit against her former criminal defense counsel. 

In the malpractice action, the defendant filed a demurrer on the grounds that the plaintiff failed to state a claim upon which relief could be granted because she was not actually innocent of the criminal act of assault that was the basis of her prosecution.  The argument was that although the felony assault and battery had been vacated, the plaintiff subsequently admitted guilt to misdemeanor assault and battery, and it was that guilt of a criminal act which was the proximate cause of her injuries.  The trial court sustained the demurrer.

On appeal, the Virginia Supreme Court affirmed the trial court.

The Court began by pointing out that in the normal legal malpractice action, the essential elements are the existence of an attorney-client relationship which gave rise to a duty, breach of that duty, and that the damages claimed by the plaintiff must have been proximately caused by the defendant attorney's breach.

However, in a legal malpractice action arising out of a criminal matter, there are additional burdens of pleading, to ensure that courts do not assist the participant in an illegal act who seeks to profit from the act's commission.  A criminal defendant may not profit from a crime in a subsequent legal malpractice action.

For that reason, a legal malpractice plaintiff, who alleges that malpractice occurred during the course of a criminal matter, must also plead (1) that the damages to be recovered were proximately caused by the attorney's malpractice and (2) were not proximately caused by the plaintiff's own criminal actions.

The Court reasoned that to adequately plead proximate causation in this case, the plaintiff was required to plead that the damages she seeks to recover were proximately caused by the legal malpractice and not by her own criminal conduct.  However, the only pecuniary damage pled in the compliant was that her nursing license was suspended as a direct result of her felony conviction.  There was no allegation that she would not have lost her nursing license based upon her conviction of misdemeanor assault and battery.  Thus, the Court found that the plaintiff failed to plead damages flowing from her felony conviction that would not have been proximately caused by her misdemeanor sentence.

Secondly, with regard to the length of her jail time, the Court found that the plaintiff had adequately pled that but for the legal malpractice, she would have been sentenced to less than six months.  However, the complaint failed to plead that her damages were proximately caused by legal malpractice, rather than by her own criminal conduct.  The Court pointed out that "there is no basis to determine what sentence a circuit court would have imposed in the original criminal proceeding had [the defense attorney] not been negligent."  This is because a defendant convicted of misdemeanor assault and battery is subject to a sentence of not more than twelve months and a find of $2,500, either or both.  In the plaintiff's second criminal trial, her suspended sentence was after she had already served her original six month sentence.  The original misdemeanor plea offer was not accompanied by a sentence recommended by the Commonwealth.  Thus, there were no facts pled from which to draw the inference that, absent the legal malpractice, the circuit court would have imposed any shorter sentence than the six months that was imposed.

Accordingly, the Virginia Supreme Court affirmed the circuit court's judgment sustaining the demurrer.

Impact:  This opinion explains in detail what elements a plaintiff must plead in the complaint to allege a cause of action for legal malpractice where the plaintiff was found guilty in the underlying criminal matter.  It would be an over-simplification to say that under Virginia law, a person convicted of a crime cannot bring a legal malpractice claim against his or her criminal defense lawyer unless the conviction is overturned and there is a finding of not guilty. For example, in this case, the opinion suggests that the plaintiff might have stated a cause of action if she had pled that her nursing license would not have been suspended based upon a conviction of misdemeanor assault and battery.  That would have been an allegation that she sustained pecuniary harm not proximately caused by her ultimate misdemeanor conviction.

To discuss the defense of a pending legal malpractice matter in Virginia, contact Carol T. Stone of Jordan Coyne LLP at 703-246-0900.



Posted by David. B. Stratton on 07/27/2015 at 01:00 PM
DefensesLegal MalpracticeVirginiaPermalink


Federal court in D.C. rejects dramshop liability claims arising from off-premises fight

Partner Steve Schwinn, assisted by Raphael Cohen, of Jordan Coyne, LLP secured the dismissal of all claims against a District of Columbia nightclub owner seeking damages arising from the death of a graduate school student who became involved in a fight outside a fast food restaurant with three men who had been served alcohol at the nightclub down the street about an hour before.  U.S. District Court Judge Richard J. Leon held that the nightclub owner could not be liable for the death because it could not have been foreseen that the men would commit the assault upon the decedent.    

Plaintiffs alleged the men were served alcohol while obviously intoxicated, in violation of the Alcohol Beverages Control Act, and argued that the assault was foreseeable because intoxication often leads to irresponsible and criminal behavior.  The Court rejected the argument, finding that the death was caused by the intentional and unforeseeable acts of third parties that were too attenuated from the alleged negligence to support a claim. Recognizing that drinking establishments may be found negligent where a violation of the Act is a contributing cause of an accidental injury, Judge Leon explained that civil liability for the intervening criminal acts of others is extraordinary and requires a more heightened showing of foreseeability than that alleged by the plaintiffs.

 The case, Casey v. Ward, et al., Case No.: 13-1452 (D.D.C. 2015), will continue on the claims against the individuals involved in the fight, and the fast food restaurant where the altercation began.  For further information concerning this matter or any other similar matter, please call Steve Schwinn at 703-246-0900.

Copies of opinions in the case can be found here and here.



Posted by David B. Stratton on 05/15/2015 at 01:10 PM
DefensesDistrict of ColumbiaPermalink


D.C. Court of Appeals adopts the economic loss doctrine

In Aguilar v. RP MRP Washington Harbor, LLC __ A.3d __ (D.C. Sept. 4, 2014), the D.C. Court of Appeals considered the issue whether the District of Columbia will follow the majority of jurisdictions by adopting the "economic loss doctrine" which prohibits claims of negligence where a claimant seeks to recover purely economic loss sustained as a result of an interruption in commerce caused by a third party.  The Court held that it would adopt the economic loss doctrine.

The Plaintiffs had sued for lost wages that resulted from the closure of their workplaces due to a flood at the Washington Harbor retail complex.  That property has unique disappearing flood walls, which can be raised when the Potomac river threatens to flood.  The flood walls were negligently not raised during a river flood in April, 2011.  Plaintiffs claim that the defendant had adequate prior knowledge of the impending flood. 

The defendant moved to dismiss for failure to state a claim because the economic loss doctrine bars recovery of claims alleging solely economic loss stemming from a defendant's negligence.  The Plaintiffs argued that the economic loss doctrine does not apply in the District of Columbia.

The D.C. Court of Appeals held that the plaintiffs are precluded from pursuing a negligence action against appellants for recovery of lost wages, standing alone absent any other injury, by virtue of the economic loss doctrine.  The economic loss doctrine in the District of Columbia bars recovery of purely economic losses in negligence, subject to a limited exception where a "special relationship" exists.  What constitutes a special relationship is illustrated by the Court, which found no special relationship in this case because "there was no obligation on the part of [the defendant] to care for [plaintiffs'] economic well being."

The United States District Court for the District of Columbia had previously stated that the economic loss doctrine is a rule that prevents a party from alleging a tort claim, such as negligence or strict products liability, “‘where the only damage is to the product itself.’” Capital Motor Lines v. Detroit Diesel Corp., 799 F. Supp. 2d 11, 16 (D.D.C. 2011) (quoting Liberty Mut. Ins. Co. v. Equipment Corp. of America, 646 F. Supp. 2d 51, 56 (D.D.C. 2009) (internal citation omitted)). “Under the economic loss doctrine, a plaintiff [suing in tort] may not recover the ‘loss of value or use of the product itself, cost to repair or replace the product, or the lost profits resulting from the loss or use of the product.’” Capital Motor Lines, 799 F. Supp. 2d at 16 (quoting Potomac Plaza Terraces, Inc. v. QSC Products, Inc., 868 F. Supp. 346, 354 (D.D.C. 1994)(internal citations omitted)).  However, in Aguilar, the D.C. Court of Appeals rejected the argument that the application of the economic loss doctrine is limited to cases involving contract or products liability claims.

The economic loss doctrine thus has taken its place as one of the affirmative defenses to be considered in every case in the District of Columbia.



Posted by David B. Stratton on 10/13/2014 at 03:46 PM
DefensesDistrict of ColumbiaPermalink


DC:  Legal malpractice verdict in favor of plaintiff reversed on appeal due to lack of privity

In Scott v. Burgin, No. 12-V-1474 (D.C. Aug. 14, 2014), the Court reversed a $255,000 jury award in a legal malpractice case against a divorce attorney.  The plaintiff was not a client of the defendant law firm, and consequently the Court held that the defendant's duty of care did not extend to the Plaintiff, and reversed the judgment.  In so doing, the Court refused to expand the third party beneficiary exception to the requirement of privity in a legal malpractice action.

The plaintiff's fiancé was a retired government employee, who was long separated from his first wife, but they had never gotten a divorce. 

The plaintiff and her fiancé had a long-standing relationship of over 25 years.  After the fiancé was diagnosed with terminal bone cancer, the plaintiff met with the defendant attorney to seek his help in getting the fiancé a divorce from his separated wife.  The attorney said he would help the fiancé, if the fiancé chose to retain him.  The fiancé wished to obtain a divorce so that he could marry the plaintiff.  Although he had previously designated the plaintiff as the beneficiary of his federal benefits, he was aware that the plaintiff might not receive them unless their were married.

A year passed before the fiancé met with the attorney.  Shortly thereafter, the fiancé signed a retainer agreement for the lawyer's representation in his divorce proceedings.

Unfortunately, the attorney did not serve the separated wife with the divorce complaint until November, 2007, about 11 months later.  The fiancé died in April, 2008, and a divorce was never secured prior to his death.

Afterwards, the federal government denied the plaintiff's claim for survival benefits under the Civil Service Retirement System, based on evidence showing that the earlier marriage was never terminated.

The plaintiff brought suit against the lawyer for legal malpractice and the related breach of contract as a third-party beneficiary, and the jury returned a verdict in favor of the plaintiff.

On appeal, the sole issue was whether the plaintiff lacked standing to sue for legal malpractice or breach of contract.

The Court held that the plaintiff did not have standing.  It was undisputed that the fiancé and the fiancé alone, was the lawyer's client.  In the District of Columbia, both contracting parties must intend a direct benefit which the third party can enforce against the promisor, for classic third-party beneficiary liability to exist.  Here, there was no real evidence that the attorney himself intended to incur any liability beyond that imposed by law as part of his duty of care.

The Court reaffirmed the general rule that the obligation of an attorney is to his client, and not to a third party.  The Court distinguished the recognized exception to that rule, where the impact upon the third party is not an indirect or collateral consequence, but the end and aim of the transaction.  The classic situation that meets that exception is the failure of an attorney to properly draft a will. 

Here, the anticipated divorce decree did not provide the same direct benefits to the plaintiff.  The Court stated that the fiancé of either party to a divorce is a complete stranger to the transaction, and the divorce does nothing to change that status.  The newly divorced person would have had to take at least one further action, that is, marry the plaintiff.  The Court noted that in the divorce proceedings, the pension rights at issue might have been the subject of controversy, since the separated wife had had four children in the marriage.

To permit the plaintiff's suit here would frustrate one of the primary goals of the privity rule, that is, avoiding exposure to the attorney to indeterminate liability to an indeterminate class of people.  It would also undermine the ability of the attorney and the client to exercise control over their contractual agreement.



Posted by Jordan Coyne LLP on 08/16/2014 at 07:36 PM
DefensesDistrict of ColumbiaLegal MalpracticePermalink


D.C. Court of Appeals affirms summary judgment based on judicial estoppel

In Atkins v. 4940 Wisconsin LLC, ___ A.2d ___, 2014 D.C. App. LEXIS 192 (D.C. July 3, 2014), the Court affirmed the trial court's award of summary judgment to the defendant on the grounds of judicial estoppel, based on the plaintiff's filings in bankruptcy court in which he represented in his schedules that he had no unliquidated claims.  An aggravating factor here was that the defendant in the personal injury suit had had a claim of $328,606 against the plaintiff due to a retail lease, which claim was discharged in the bankruptcy.

In the District of Columbia, the courts generally consider three factors in deciding whether to apply judicial estoppel: (1) whether a party's later position is clearly inconsistent with its earlier position; (2) whether the party has succeeded in persuading a court to accept the party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled; and (3) whether the party seeking to impose an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Editor's note:

The doctrine of judicial estoppel precludes a party from taking one position on an issue before one court and the opposite position before a different court, and has been adopted in the District of Columbia.  See Fairman v. District of Columbia, 934 A.2d 438, 443 (D.C. 2007); Porter Novelli v. Bender, 817 A.2d 185, 188 (D.C. 2003); Thoubboron v. Ford Motor Co., 809 A.2d 1204, 1212 (D.C. 2002);  Lofchie v. Wash. Square P'ship, 580 A.2d 665, 668-69 (D.C. 1990)(concurring opinion by Schwelb, J);  See also Comcast Corp. v. FCC, 390 U.S. App. D.C. 111, 116, 600 F.3d 642, 647 (D.C. Cir. 2010).

In Moses v. Howard Univ. Hosp., 391 U.S. App. D.C. 21, 30, 606 F.3d 789, 798 (D.C. Cir. 2010), the United States Court of Appeals for the District of Columbia Circuit stated,

While “‘[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,’” Maine, 532 U.S. at 750 (quoting Zurich Ins. Co., 667 F.2d at 1166), we have explained that “[c]ourts may invoke judicial estoppel ‘[w]here a party assumes a certain position in a legal proceeding, . . . succeeds in maintaining that position, . . . [and then] simply because his interests have changed, assume[s] a contrary position.’”  Comcast Corp., 600 F.3d at 647 (quoting Maine, 532 U.S. at 749). 

The Moses Court stated that “[c]ourts may invoke judicial estoppel ‘[w]here a party assumes a certain position in a legal proceeding, . . . succeeds in maintaining that position, . . . [and then,] simply because his interests have changed, assume[s] a contrary position.’” Id. at 798. (citing Comcast Corp., 600 F.3d at 647 (quoting Maine, 532 U.S. at 749).

In New Hampshire v. Maine, 532 U.S. 742, 749 (3d ed. 2000), the Supreme Court spoke approvingly of judicial estoppel in that it “’prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding,’” (quoting 18 MOORE’S FEDERAL PRACTICE § 134.30 (3d ed. 2000)), and explained that judicial estoppel is “’an equitable doctrine invoked by a court at its discretion,’” Maine, 532 U.S. at 750 (quoting Rolfs, 893 F.3d at 1037).  See also Moses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010).

In the context of bankruptcy proceedings, “[a] debtor is required to disclose all potential claims in a bankruptcy petition. See 11 U.S.C. §§ 521(1), 541(a)(1).  The Moses Court interpreted this to mean that “. . . a debtor is under a duty both to disclose the existence of pending lawsuits when he files a petition in bankruptcy and to amend his petition if circumstances change during the course of the bankruptcy.” Id. at 793.

The doctrine of judicial estoppel may be applied where the plaintiff has failed to comply with these statutory requirements:

Courts have routinely held that judicial estoppel is appropriate when a debtor fails to identify a claim in a bankruptcy proceeding and then proceeds to assert that claim in a separate judicial action. See Moses v. Howard Univ. Hosp., 606 F.3d at 798 ("[E]very circuit that has addressed the issue has found that judicial estoppel is justified to bar a debtor from pursuing a cause of action in district court where that debtor deliberately fails to disclose the pending suit in a bankruptcy case."); Kopff v. World Research Group, LLC, 568 F. Supp. 2d 39, 43-44 (D.D.C. 2008) (citing cases).

Frese v. Empire Fin. Servs., 725 F. Supp. 2d 130, 140 (D.D.C. 2010).

A debtor in bankruptcy court has a continuing duty to disclose all assets and potential assets to the court until her discharge date.[1] 11 U.S.C. § 521(1) and 541(a)(7); In re Wilmoth, 412 B.R. 791, 798-99 (Bankr. E.D. Va. 2009) (explaining that [t]he duty to list all property and applicable exemption is an ongoing duty prior to closing of the case and the duty falls squarely on the Debtor’s shoulders); Burnes v. Pemco Aeroplex, 291 F.3d 1282, 1286 (11th Cir. 2002); Browning Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 207-08 (5th Cir. 1999).[2]

“Reopening a case does not automatically grant the Debtor a right to amend schedules or take other actions that ought to have occurred prior to closing; instead, the reopening of the case allows administrative and ministerial loose ends to be tied. See Finch v. Coop (In re Finch), 378 B.R. 241, 246 (B.A.P. 8th Cir. 2007) (citing In re Barlett, 326 B.R. 436, 438 (Bankr. N.D. Ind. 2005)). Chapter 7 trustees are not automatically reappointed as trustees upon the reopening of a bankruptcy case. Fed. R. Bankr. P. 5010.”  In re Wilmoth, 412 B.R. 791, 795-796 (Bankr. E.D. Va. 2009)

 

[1] Federal bankruptcy law requires a debtor to list in the initial petition, inter alia, a “schedule of assets.” 11 U.S.C. § 521(a)(1)(B)(1).  Official Form 6 for Schedule B requires a debtor to list “all personal property of the debtor of whatever kind,” and property of a bankruptcy estate is defined broadly to include “all legal or equitable interests of the debtor in property as of commencement of the case.” 11 U.S. C. § 541(a)(1).  Courts have interpreted this definition to include “all causes of action that could be brought by a debtor.”  USinternetworking, Inc. v. Gen. Growth Mgmt., 310 B.R. 274, 281 (Bankr. D. Md. 2004) (citing Seward v. Devine, 888 F.2d 957, 963 (2d Cir. 1989)).  The duty to disclose such claims continues for the duration of the bankruptcy proceeding. Id. at 282 (citing Browing Mfg. v. Mims (In re Coastal Plains, Inc.), 179 F.3d 197, 207-08 (5th Cir. 1999)).

[2] "'The debtor need not know all the facts or even the legal basis for the cause of action; rather, if the debtor has enough information … prior to confirmation to suggest that it may have a possible cause of action, then that is a "known" cause of action such that it must be disclosed'".  Browning Mfg., 179 F3d at 208, quoting Union Carbide Corp. v. Viskase Corp. (In re Envirodyne Indus., Inc.), 183 B.R. 812, 821 n.17 (Bankr. N.D. Ill. 1995)). "Any claim with potential must be disclosed, even if it is 'contingent, dependent, or conditional'".  Browning Mfg., 179 F.3d at 208, quoting Westland Oil Dev. Corp. v. MCorp Management Solutions, Inc., 157 B.R. 100, 103 (S.D. Tex. 1993) (emphasis the Court’s).

 

 



Posted by David B. Stratton on 08/09/2014 at 03:13 PM
DefensesDistrict of ColumbiaPermalink


Premises Liability:  Maryland landowner not in possession or control of the premises

It has long been the general rule of Maryland premises liability law  that a landlord is not liable for injuries to a tenant or third party caused by defects or dangerous conditions where the landlord, or owner, has completely parted with control of the leased premises.  Marshall v. Price, 162 Md. 687, 161 A. 172, 172-73 (Md. 1932). The Maryland Court of Appeals, the highest court of the State of Maryland, has stated the rationale for this rule:

When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being both owner and occupier, subject to all of the responsibilities of one in possession, to those who enter upon the land and those outside of its boundaries.

Henley v. Prince George's Cnty., 305 Md. 320, 503 A.2d 1333, 1342 (Md. 1986) (quoting William L. Prosser & Robert E. Keeton, Law of Torts § 63, at 434 (5th ed. 1984)).

Conversely, a landlord owes a duty to the occupant of a leased property or to a third party on the premises if: (1) the landlord controlled the dangerous or defective condition; (2) the landlord knew or should have known of the condition; and (3) the loss suffered was a foreseeable result of that condition. Hemmings v. Pelham Wood Ltd. Liab. Ltd. P'ship, 375 Md. 522, 826 A.2d 443, 452 (Md. 2003).  For example, where a landlord has leased premises to multiple tenants, it has a duty to maintain common areas under its control in a reasonably safe condition. E.g., Shields v. Wagman, 350 Md. 666, 714 A.2d 881, 884-85 (Md. 1988); Honolulu Ltd. v. Cain, 244 Md. 590, 224 A.2d 433, 435-436 (Md. 1966). When analyzing a landlord's duty, courts must apply a balancing test, considering the landlord's degree of control and ability to remedy the condition along with the foreseeability of the harm. Matthews v. Amberwood Assocs. Ltd. P'ship, 351 Md. 544, 719 A.2d 119, 129 (Md. 1998).

Where the landowner has totally surrendered possession and control of the premises, that should relieve the landowner of any alleged liability, as a matter of law, for the criminal acts of third parties that took place on the premises after all possession and control passed to the lessee. In Henley v. Prince George’s County, 305 Md. 320, 337-338, 503 A.2d 1333 (1986), which arose out of the brutal murder of a child, the Court affirmed the Circuit Court’s grant of summary judgment to the owner of the property, on grounds that the owner (a college) had surrendered control of the premises to the county during the period of time involved in the action.   See also Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 464, 505 A.2d 494 (1986)( "The liability of a landowner for injuries received on the land is dependent upon whether the device which caused the injury is in his possession and control.  Section 328 of the Restatement defines an owner and occupier of land in terms of a possessor of land. . . .”). 

Maryland law is clear that liability as an owner of land is defined in terms of possession and control of the property.  See Marshall v. Price, supra; Henley, supra; Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 464, 505 A.2d 494 (1986). 

The Maryland Court of Appeals has observed that it is “often overlooked” that it is the possession of property, not the ownership, from which duty flows towards one who comes in contact with the property.  See Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 44-46 (Md. 1995), overruled on other grounds, Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 694-699 (Md. 1998).  The Court in Lane went on to state as follows:

In Rowley, supra, 305 Md. at 464, we said:"In determining whether the City as owner of the Convention Center owed a duty to invitees, we must consider the threshold question of whether the City was in possession and control of the building. The liability of a landowner for injuries received on the land is dependent upon whether the device which caused the injury is in his possession and control. Section 328 [E] of the Restatement defines an owner and occupier of land in terms of a possessor of land…."  See also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 57, at 386 (5th ed. 1984) ("Largely for historical reasons, the rights and liabilities arising out of the condition of land, and activities conducted upon it, have been concerned chiefly with the possession of the land, and this has continued into the present day.") (emphasis added). Possession involves both the present intent to control the object and some ability to control it. Restatement §§ 216, 328 E. See also Rowley, supra, 305 Md. at 464 (quoting Restatement § 328 E); Oliver Wendell Holmes, Jr., The Common Law 238 (stating that a person has possession when "he has the present intent and power to exclude others").

Lane, 338 Md. at 45-46 (footnotes omitted). 

The Maryland Court of Appeals has observed that “A landlord's control over conditions on its premises always has been a critical factor that we consider in determining landlord liability.”  Hemmings v. Pelham Wood Ltd. Liab. Ltd. P'ship, 375 Md. 522, 537 (Md. 2003).  When analyzing a landlord's duty, courts must apply a balancing test, considering the landlord's degree of control and ability to remedy the condition along with the foreseeability of the harm. Matthews v. Amberwood Assocs. Ltd. P'ship, 351 Md. 544, 719 A.2d 119, 129 (Md. 1998).  The Court of Appeals has recognized that the duty of an owner of land is limited under the “foreseeability of harm” test, to avoid liability for unreasonably remote consequences.  See Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 77 (Md. 1994)(prior commercial property owner not liable to subsequent commercial property owner for negligence).

Whether the owner owed any duty to the plaintiff should ordinarily be a question of law for the court, and can often be decided by motion.  In order to establish a claim for negligence under Maryland law, a plaintiff must prove that: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff suffered actual harm; and (4) the harm was proximately caused by the defendant's breach of duty. Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 782 A.2d 807, 841 (Md. 2001).  Significantly, "[t]he existence of a duty is a matter of law to be determined by the court  . . . ."  Bobo v. Maryland, 346 Md. 706, 697 A.2d 1371, 1376 (Md. 1997). 

As stated in Hemmings v. Pelham Wood Ltd. Liab. Ltd. P’ship, 367 Md. 522, 536 (Md. 2003):

Because whether one party owed a duty to another requires a legal determination based on statutes, rules, principles, and precedents, it is ordinarily for the court rather than the jury to decide. Valentine, 353 Md. at 549, 727 A.2d at 949 ("The existence of a legal duty is a question of law to be decided by the court."); see also W. Page Keeton, et al., Prosser & Keeton on Torts § 37, at 236 (5th ed., 1984) ("Whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant . . . . is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law . . .").



Posted by David B. Stratton on 07/23/2013 at 05:15 PM
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Commercial ambulances not shielded by the Maryland Good Samaritan Act or the Fire and Rescue Act

In Murray v. Transcare Maryland, Inc., No. 1791, Sept. Term 2010 (Feb. 9, 2012), the Court of Special Appeals held that a private for-profit ambulance service is not subject to Maryland’s Good Samaritan Act (Md. Courts and Jud Code Ann. § 5-603) or to the Fire and Rescue Act (§ 5-604).   Both statutes are designed to provide immunity to certain individuals and companies that commit negligent torts while providing emergency services.


The facts were as follows: Transcare is a private, for-profit ambulance service.  Bryson Murray, a child, was taken to the emergency room at Easton Memorial Hospital with complaints of congestion and trouble breathing.  Bryson was intubated and subsequently transported by helicopter to the Pediatric Intensive Care Unit of the University of Maryland Medical System.  Chris Barbour, a paramedic employed by Transcare, accompanied Bryson in the helicopter.  During the flight, Bryson’s airway became blocked, and he required an oxygen mask.  Barbour was unable to timely locate the mask, and Bryson suffered permanent brain damage as a result.


Bryson’s mother filed suit against Transcare, alleging that Barbour failed to exercise reasonable care.  Transcare moved for summary judgment, invoking the Good Samaritan Act and the Fire and Rescue Act.  After extensive analysis of the statutory language and legislative history, the Court of Special Appeals held that neither statute was applicable. The Good Samaritan Act does not apply to a for-profit company like Transcare because the Act’s protection of corporate entities is limited to volunteer service providers.  By contrast, the Act would cover an individual paramedic employed by a commercial ambulance company, and therefore would likely immunize Barbour from personal liability.


Likewise, the court held that Transcare was not protected under the Fire and Rescue Act.  That statute only applies to “fire companies” and “rescue companies.”  The court held that Transcare was not a rescue company because the primary purpose of an ambulance is to transport the sick, not to save people from danger.  The court stated in dicta that since ambulance companies are not defined as “rescue companies” under the Fire and Rescue Act, the Act would not apply even if a tort occurs while an ambulance company is engaged in providing rescue services (e.g. in an emergency situation).

In a separate part of its opinion, the Court of Special Appeals affirmed the trial court’s decision to transfer venue from Baltimore City to Talbot County under the doctrine of forum non conveniens.  The Court of Special Appeals held that the trial court did not abuse its discretion because the tort occurred in Talbot County, several witnesses were located in Talbot County, and neither party resided in Baltimore City.



Posted by Raphael J. Cohen on 02/16/2012 at 03:29 PM
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Attorney malpractice claims in $100 million D.C. patent malpractice suit survive preliminary motions
In Lans v. Adduci Mastriani & Schaumberg L.L.P., No. 02-2165 (D.D.C. May 23, 2011), the District Court, in a 120-page opinion, denied the defendants' motion to dismiss an attorney malpractice suit arising out of patent litigation. In this suit, the plaintiffs claim that the defendants' alleged misdeeds resulted in the loss of the plaintiffs' proprietary interests in a patent worth more than $100 million.

Judge Walton's opinion is predominantly a discussion of challenges raised by defendants concerning personal jurisdiction under the D.C. long-arm jurisdiction statute, concerning the fiduciary shield doctrine, and concerning the application of issue and claim preclusion based on decisions in the underlying litigation. Judge Walton dismissed the plaintiffs' civil RICO claims.

Concerning the malpractice claims, Judge Walton ruled that although no federal claims remained in the case, the state law malpractice claims require resolution of substantial questions of federal patent law under 28 U.S. C. sec. 1338(a). Judge Walton decided that the Court would maintain subject matter jurisdiction over the malpractice claim, due to the need to litigate the issue of patent infringement and resulting damages in the malpractice claim. Further, the court maintained supplemental jurisdiction over all the remaining state-law claims in the case.

The defendants had argued that the plaintiffs' claims for breach of contract, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing should be dismissed because they were all duplicative of the malpractice claim, arose out of the same facts as the negligence claim, and required essentially the same standard of care. The Court rejected this argument, on the grounds that the various causes of action each rested on different proof. The malpractice claim was based on the alleged failure to investigate and clarify ownership of the patent. The breach of contract claim was based on alleged failure to carry out the terms of the contingency fee agreement, and on alleged conversion of funds owed under the terms of the fee agreement. The breach of the implied covenant of good faith was based on the same facts as the breach of contract claim. The breach of fiduciary duty claim centered on alleged violations of the D.C. Code of Professional Conduct and the Swedish Bar's Canon of Ethics, including among other things failure to disclose conflicts of interest. Thus, the Court found that the fiduciary duty claims did not arise out of the same facts as the malpractice claim, and that a failed malpractice claim would not neessarily preclude recovery on a claim for breach of fiduciary duty. Thus, the Court found that none of the other state-law claims were duplicative of the malpractice claims.

Interestingly, the Court also rejected an argument by the defendant law firm that an independent cause of action for breach of the covenant of good faith and fair dealing does not exist in the District of Columbia for claims based on an attorney's representation of a client. See slip op. at 118. The Court distinguished Jacobsen v. Oliver, 201 F.Supp. 2d 93, 98 n. 2 (D.D.C. 2002), on the grounds that Jacobsen dismissed the implied covenant count because it was identical to a malpractice claim in that case. But in this case, the plaintiffs' implied covenant claims were founded upon their contingent fee agreement with the defendant law firm, not on the legal representation or alleged malpractice. Therefore, Judge Walton reasoned, the general rule applies that in every contract there is an implied covenant of good faith and fair dealing. "No cases addressing legal malpractice have carved out an exception for such cases, and therefore, just like other contracts, contracts with attorneys are subject to an implied covenant of good faith and fair dealing."

Posted by David B. Stratton on 01/27/2012 at 03:08 PM
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Maryland upholds use of fair reporting and comment privilege as basis for dismissing defamation suit
In Nicholas A. Piscatelli v. Van Smith, et al., No. 18, Sept. Term 2011 (Jan 23, 2012), the Maryland Court of Appeals affirmed that the reporters published articles in the City Paper, which described Nicholas Piscatelli's possible connection to a double murder in an unflattering light, were within the protective embrace of the fair reporting and fair comment privileges, thereby affirming the ruling from the trial court and Court of Special Appeals.

In 2006 and 2007, Van Smith, authored, and the City Paper published, two articles revisiting the trial of Anthony Jerome Miller for the murders of Jason Convertino and Sean Wisniewski. Piscatelli owned Redwood Trust, a popular nightclub. Convertino managed and procured musical acts for the club. Both articles more than hinted that Piscatelli may have been involved in the murders, even though he was not charged criminally.

The two articles at issue quoted a memorandum from the prosecutor in Miller's murder trial regarding Convertino's mother, Pam Morgan, which was made part of the record, though not admitted into evidence, detailing a conversation she had with a stranger who approached her and told her that Piscatelli was involved in her son's murder. The articles also summarize Piscatelli's testimony from Miller's murder trial. As a witness for the State, Piscatelli testified that Convertino was leaving him to work for a competitor and suspected him of taking larger commissions that he was due while working for him. The prosecutor asked Piscatelli bluntly if he had anything to do with the murder, which he denied. On cross-examination, Miller's attorney insinuated that Piscatelli had motive to kill Convertino.

In Piscatelli's suit for defamation and false light, Smith and City Paper moved for summary judgment arguing that Piscatelli failed to establish that the statements at issue were false and that the fair reporting and fair comment privileges protected any allegedly defamatory material. Piscatelli responded that the accusations that he was involved in the murders were false and abused the fair reporting and fair comment privileges.

As to the fair reporting privilege, the Court reiterated that "The fair reporting privilege is a qualified privilege to report legal and official proceedings that are, in and of themselves, defamatory, so long as the account is fair and substantially accurate". "The privilege arises from the public's interest in having access to information about official proceedings and public meetings". "A defendant abuses his or her fair reporting privilege, not upon a showing of actual malice, but when the defendant's account fails the test of fairness and accuracy." Here, the supplemental discovery memorandum containing Ms. Morgan's account of the conversation with the stranger was part of the Miller criminal case file and was a public record that may be reported without liability for defamation, so long as the report is fair and accurate. Smith's articles included exact quotes from the Morgan memorandum and detailed her recollection which were consistent with the memorandum. Similarly, Smith's articles accurately depicted Piscatelli's trial testimony so as to be a reasonable abbreviation of his entire testimony. Piscatelli conceded as much in his deposition that Smith's summary was accurate. Thus, Smith's statements were reported fairly and accurately and fell within the purview of the fair reporting privilege.

As to the fair comment privilege, Maryland law states that derogatory opinions based on non-defamatory fact, true facts, privileged facts, or facts assumed mutually by the opinion-maker and recipient are privileged. Since the Court concluded that Smith's reporting of the memorandum and Piscatelli's trial testimony were privileged as fair reporting, which was the basis for any opinions, it enabled the readers to judge for themselves the quality of those opinions. "Therefore, what would otherwise have been an allegation of fact becomes merely a comment, or a simple opinion, which the fair comment privilege declaws of its defamatory expression."

In upholding the grant of summary judgment by the trial court and Court of Special Appeals decisions, the Court stated that Piscatelli failed to adduce facts that would be admissible in evidence to demonstrate that Smith and the City Paper's reporting about Miller's murder trial was unfair and inaccurate, which is a burden he bore, in order to present a triable issue for a jury as to whether the fair reporting privilege was abused. Additionally, where Smith and the City Paper expressed simple opinions based on disclosed, privileged statements, those opinions are themselves privileged as fair comment. "Although perhaps an unflattering account of Piscatelli's relationship with Convertino, [Smith's] report was an accurate, fair account of Piscatelli's testimony". "Piscatelli failed to advance any facts to demonstrate otherwise."


Posted by Robert D. Anderson on 01/26/2012 at 06:44 PM
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