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
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
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."
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
Employees’ Claim Against Employer for Unpaid Wages Dismissed Pursuant to Iqbal and Twombly
In Eric Johnson, et al, v. Prospect Waterproofing Company, et al., Civil Action No. 11-0077, (D.D.C. Sept. 21, 2011), the U.S. District Court for the District of Columbia dismissed the plaintiffs' suit against their employer for unpaid wages for failing to state a claim pursuant to Ashcraft v. Iqbal, 129 S.Ct. 1937 (2009) and Alt. Corp. v Twombly, 550 U.S. 544 (2007), on the basis that Davis-Bacon Act merely establishes an administrative process for the recovery of unpaid wages, does not give rise to a private right of action, and that it is impermissible to try to circumvent the Act by asserting that the claims governed by the Act arise under state law.
Plaintiffs were hired as roofers by Prospect Waterproofing Company to work on various federally-funded or federally-assisted construction projects in the District of Columbia. Plaintiffs contend that projects were subject to the Davis-Bacon Act, 40 U.S.C. sec. 3141, et seq., which requires employers to pay prevailing wage rates for certain categories of jobs in the community, and that defendants failed or refused to pay them the prevailing wage rate established under the Act. Plaintiffs sought to recover the difference between the Davis-Bacon prevailing wages allegedly owed and the wages defendants' actually paid.
Plaintiffs' complaint alleged that three state law causes of action arise out of defendants' failure to compensate plaintiffs according to the prevailing Davis-Bacon rate: (1) violation of the D.C. Wage Payment and Collection Law; (2) violation of the D.C. Minimum Wage Act; and (3) a common law quantum meruit claim based upon the defendants retention of the difference between the prevailing wage and what was actually paid to plaintiffs.
The Davis-Bacon Act requires all laborer and mechanics working on federally-funded construction projects to be paid not less than the prevailing wage in the locality where the work is performed. 40 U.S.C. sec. 3142. Every contract entered into pursuant to the Act must stipulate that the contractor shall pay the established wages and, if the contractor fails to pay the minimum wages specified, that the government's contracting officer may withhold so much of the accrued payment as necessary to pay the laborers and mechanics the difference between the wage rate and the wages paid. 40 U.S.C. sec. 3142(c)(1) and (3). The Act goes on to provide that "if the accrued payments withheld under the terms of the contract are insufficient to reimburse" the laborers for the wages owed, those "laborers and mechanics have the same right to a civil action and intervene against the contractor  as is conferred by law on persons furnishing labor or materials." 40 U.S.C. sec. 3144(a)(2). "But, this purely financial remedy is available only after there has been an administrative determination that some money is owed and that insufficient funds have been withheld to compensate the affected laborer." U.S. ex rel. Bradbury v. TLT Constr. Corp., 138 F. Supp. 2d 237, 241 (D.R.I. 2001).
After an analysis and recitation of cases from other districts that have tackled this issue, the Court concluded that the Act did not provide a private right of action to recover unpaid wages.
Even though the Act did not confer a private right of action, plaintiffs' insisted that their suit could proceed because they were not seeking relief under the Act, but instead under D.C. law, which created a valid claim for unpaid wages governed by the Davis-Bacon Act under D.C.'s Wage Payment and Collection Law and Minimum Wage Act. However, the Court ruled that plaintiffs were merely trying to bypass the exclusive administrative remedies of the Davis-Bacon Act by bringing state law and common law claims, even though the complaint makes clear that plaintiffs' claims are founded exclusively on the Act. Consequently, the Court concluded that "plaintiffs' claims are clearly an impermissible end run around the Davis-Bacon Act" and that allowing such a claim would severely undermine the specific remedial scheme established by Congress. Therefore, since no private right of action exists under the Davis-Bacon Act, plaintiffs failed to state a claim upon which relief could be granted and the Court dismissed plaintiffs' complaint.
Posted by Robert D. Anderson on 01/26/2012 at 06:35 PM
District of Columbia
Employee’s disclaimer of third party tort action against employer’s customers upheld by D.C. Court
In Brown v. 1301 K Street Limited Partnership, No. 09-CV-695 (D.C. Nov. 23, 2011), the D.C. Court of Appeals upheld the validity of a disclaimer signed by a security guard, in which she agreed that her workers' compensation benefits from her employer would be her sole remedy and that she waived any rights she had to make a claim against her employer's customers arising from injuries covered under the Workers' Compensation statutes.
The wording of the disclaimer was as follows:
I understand that state Workers' Compensation statutes cover work-related injuries that may be sustained by me. . . . As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:
- make a claim, or
- commence a lawsuit, or
- recover damages or losses
from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the Workers' Compensation statutes.
The plaintiff had slipped on a wet floor while working as a security guard for Allied Barton Security, which had a contract with the building owner and property manager to provide security services. Plaintiff received a lump sum workers' compensation settlement for her injuries, and then filed suit against the building owner and property manager. In her action, she alleged negligence, OSHA violations, and violation of the D.S. Industrial Safety Act.
The defendants were granted summary judgment on the basis of the above disclaimer, and the plaintiff appealed.
On appeal the plaintiff argued that the disclaimer was invalid because it is an agreement to forego her right to compensation under the D.C. Workers' Compensation Act. The Court rejected that argument, because the disclaimer did not purport to limit in any way the plaintiff's right to compensation under the Act.
The Court also rejected the plaintiff's argument that the disclaimer was too general, finding that the parties' intent is clear from the face of the disclaimer.
The Court rejected the argument that the disclaimer violated public policy. The Court has previously invalidated only a few exculpatory clauses on public policy grounds: an exculpatory clause in a will that excused self-dealing by the personal representative; and an exculpatory clause in a lease the excused the landlord's obligations under the implied warranty of habitability. However, the Court found "nothing violative of public policy in an employer's choice to protect its customers from liability for workplace injuries, choosing instead to compensate its employees itself exclusively through workers' compensation."
Finally, the Court rejected the plaintiff's argument that the disclaimer violated the public policy underlying the OSHA and ISA statutes. The Court noted that those statutes are not strict liability statutes, but are analogous to negligence in that they establish standards of care. "Although releases purporting to limit liability for gross negligence, willful acts, or fraud will not be enforced, releases are viable and enforceable when they limit liability for ordinary negligence."
This case illustrates that the Courts are willing to allow businesses to structure their relationships to apportion risk, at least where negligence claims are concerned. Here, the security company may end up paying higher workers' compensation insurance premiums than it would without the disclaimer. On the other hand, the security company can adjust its fee structure to account for its insurance costs.
Posted by David B. Stratton on 01/16/2012 at 11:19 PM
District of Columbia
Negligence per se based on traffic regulations: A D.C. refresher
Two recent opinions from the U.S. District Court for the District of Columbia provide a refresher on D.C. law concerning negligence per se based on the violation of D.C. traffic regulations.
In Mahnke v. Washington Metropolitan Area Transit Authority, No. 10-0021 (D.D.C. Oct. 20, 2011), the plaintiff was a pedestrian who marched out into a crosswalk when she had the "walk" light, and was hit by a WMATA bus which had started through the eight lane intersection on a yellow light. The accident was videotaped, and WMATA filed a motion for summary judgment on the grounds that the plaintiff was contributorily negligent for not looking for oncoming traffic before stepping off the curb as the video appeared to show. As the bus neared the intersection, the bus driver saw the traffic light change from green to yellow, and she accelerated in an effort to clear the eight-lane intersection. WMATA conceded that the light turned red before the bus exited the intersection. The video showed that the bus was halfway through the intersection when the plaintiff entered the crosswalk. The plaintiff sustained numerous injuries, allegedly including a fractured, skull, epidural hematoma, broken clavicle, fractured ribs, collapsed lung, pelvis fracture, and traumatic brain injuries, and she claimed $20 million in damages as of the time of the trial court's opinion.
The plaintiff not only denied that summary judgment could be granted based on contributory negligence, but also filed a motion in limine to prevent WMATA from raising the contributory negligence defense at trial. The parties also filed 11 other motions in limine to preclude the admission of certain evidence at trial.
The trial court denied WMATA's motion for summary judgment because the parties disputed whether the plaintiff checked for oncoming traffic before crossing the street, whether the plaintiff would have been able to see the WMATA bus if she had looked for oncoming traffic, and whether the WMATA bus driver had the last clear chance to avoid the accident. Among other things, when the plaintiff stepped off the curb after waiting for the "walk" sign, another pedestrian stepped off the curb with her and might have blocked her view. (The other pedestrian saw the bus coming and stepped back onto the curb.)
The trial court denied the plaintiff's motion in limine to preclude a contributory negligence defense because the determination of whether the defendant was negligent per se rests on jury determinations, and in any event, a defendant's violations of traffic regulations do not bar a contributory negligence defense. The trial court noted, among other things, that the D.C. Court of Appeals has explicitly stated that there is "no merit" to the contention that a "violation of a traffic regulation precludes application of a contributory negligence defense." Massengale v. Pitts, 737 A.2d 1029, 1032 n.1 (D.C. 1999).
Following the Mahnke opinion, the case settled before trial.
In Sibert-Dean v. Washington Metropolitan Area Transit Authority v. Woodson, No. 08-2145 (D.D.C. Dec. 4, 2011), the trial court denied WMATA's post-trial motion for a new trial, based on the court's instructions to the jury that a violation of any of the seven traffic regulations applicable in this case would constitute negligence per se.
This case involved a WMATA bus accident, in which a WMATA bus collided with Woodson's car, when Woodson made a left turn in front of the bus in order to enter a grocery store parking lot. The plaintiff was a passenger on the bus, and injured her shoulder and neck in the accident. Prior to trial, WMATA asserted that Woodson]s violation of traffic regulations constituted negligence per se and evidence of negligence. The traffic regulations included 18 DCMR sec. 2213.4, which provides that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." The plaintiff requested inclusion of 18 DCMR sec. 2206.1, which provides that "[n]o person shall start a vehicle which is stopped, standing, or parked unless and until the movement can be made with reasonable safety."
At a charging conference near the conclusion of the trial, the trial court concluded that the negligence per se instruction was appropriate. However, before the jury was instructed, WMATA objected to the negligence per se instruction, on the grounds that traffic regulations are generally not the type of regulation for which a violation creates negligence per se. The trial court overruled the objection.
At trial, the jury returned a verdict against WMATA and the third party defendant, Woodson, concluding that both defendants' negligence proximately caused the accident, and awarded the plaintiff $675,000 in damages.
In its motion for new trial, WMATA argued that the trial court erred when it included traffic regulations 18 DCMR secs. 2213.4 and 2206.1 among the seven traffic regulations in the Court's negligence per se instruction. WMATA's argument was that these two regulations are inappropriate for a negligence per se instruction because they do not establish specific guidelines governing the defendant's actions, but merely reiterate the duty of care established by the common law.
The trial court rejected this argument. It began by noting that in the District of Columbia, unexplained violations of traffic regulations may constitute negligence per se. D.C. courts have repeatedly held that the unexplained violation of a traffic regulation enacted to prevent the type of accident that occurred constitutes negligence per se. The trial court agreed with the proposition that in general, a statute or regulation offered to establish a standard for negligence per se purposes must not merely repeat the common law duty of reasonable care, but must set forth specific guidelines to govern behavior. However, the trial court found that the regulations objected to in this case are appropriate for a negligence per se instruction. The Court found that:
Contrary to WMATA's contention, 18 DCMR ?? 2213.4 and 2206.1 prescribe a sufficiently specific standard of care for vehicle operators to warrant a negligence per se instruction. Traffic Regulation 2213.4 states that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." This regulation does more than simply require a driver to pay attention, but demands "full attention," which, as the plaintiff notes, requires a driver to "not be distracted, and not be engaging in other activities while driving (certainly a problem in these days of multitasking and technology)."
Similarly, 18 DCMR ? 2206.1 also sets forth a specific standard of conduct. The regulation states that "[n]o person shall start a vehicle which is stopped, standing or parked unless and until the movement can be made with reasonable safety." The plaintiff correctly observes that Regulation 2206.1 "specifically applies to beginning to move your vehicle before it is safe to do so. It speaks to a driver understanding his/her surroundings and checking to make sure everything is safe before starting."
The trial court also found that these regulations were similar in specificity to the traffic regulations which the D.C. Circuit determined warranted a negligence per se instruction in Burns v. Washington Metropolitan Area Transit Authority, 114 F.3d 219 (D.C. Cir. 1997). Among those regulations were 19 DCMR sec 2200.3, which states, in relevant part, that "no person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing," and sec. 2200.5, which provides that "[t]he driver of every vehicle shall, consistent with requirements of this section, drive at an appropriate reduced speed when approaching and crossing an intersection . . . Or by reason of weather . . . ."
Finally, the trial court observed that WMATA presented no evidence at trial to establish that its bus driver's failure to comply with applicable regulations was excusable. A jury should be instructed that the violation of a statute is merely evidence of negligence, and not negligence as a matter of law, if a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard. The trial court found that the testimony cited by WMATA did not offer an excuse or explanation for violation of traffic regulations, but rather merely reflected an effort to prove that no violation occurred. In other words, a denial is not an explanation. An excuse or explanation can only arise if a violation did occur, therefore a denial is obviously not the sort of explanation that rebuts a negligence per se charge.
Posted by David B. Stratton on 01/01/2012 at 11:17 PM
District of Columbia
Motor Vehicle Accidents
Premises Liability: Maryland Court of Appeals clarifies assumption of risk defense in black ice case
In George Poole v. Coakley Williams Construction, Inc., et al., No. 130 Sept. Term 2010 (Oct. 27, 2011), and Mary Thomas v. Panco Management of Maryland, LLC, No. 133 Sept. Term 2010 (Oct. 31, 2011) the Court of Appeals overruled the Court of Special Appeals decision in Mary Thomas v. Panco Management of Maryland, LLC, et al., 195 Md. App. 245; 6 A.3d 304 (Oct. 1, 2010) and disavowed Allen v. Marriott Worldwide Corp., 183 Md. App. 460, 961 A.2d 1141 (2008), cert. denied, 408 Md. 149, 968 A.2d 1065 (2009), to clarify that in order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, the plaintiff "must" have known that the risk was actually present, not that he or she "would", "should", or "could" have known that the risk "might well be present."
There are three requirements that a defendant must prove to establish the defense of assumption of the risk: (1) that plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. The question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is ordinarily a question for the jury, unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.
In both the Poole and Thomas cases, the plaintiffs slipped and fell on "black ice" which is distinguishable from "white ice." White ice, such as snow or ice layer, is visible. On the other hand, black ice, even though common knowledge dictates that ice is slippery, is not perceivable or knowable by its nature until the moment it is encountered and experienced.
In Poole, the plaintiff was walking through the parking lot toward the back entrance of his place of employment when he slipped and fell on "black ice" while wading through a stream of water that created a path through an otherwise icy parking lot. Plaintiff alleged that water was being pumped into the parking lot where he was walking due to construction, resulting in a stream of water an inch deep and between two and three free wide that ran through the lot to a drain. Plaintiff testified that, the day before his injury, there was water and ice in the same general area where he fell and that he had noticed that the area was slippery and even warned a co-worker to be careful. Relying on Allen, the trial court granted summary judgment in favor of the defendants on the basis that the plaintiff had knowledge of the icy conditions in the area and choose to proceed under those conditions, thereby assuming the risk of danger.
In Thomas, Ms. Thomas sued the owner and management company of her apartment complex for personal injuries that arose when she fell on "black ice" on the sidewalk in front of her apartment building and fractured her right leg. The trial court granted judgment for defendants applying the rationale in Allen. On appeal, the Court of Special Appeals affirmed the trial court applying Allen and held that even though Ms. Thomas did not have an alternative safe path from her apartment to her car, she did have a safe alternative course of action, which was to not encounter the known risk at all, such that her decision to leave her apartment constituted voluntarily encountering the risk which satisfied the third and final prong.
In Poole and Thomas, the Court of Appeals reversed the granting of judgment as a matter of law on two grounds: (1) it invaded the province of the jury where there was a disputed question of material fact concerning the plaintiff's knowledge of the risk of danger posed by black ice; and (2) the lower court's reliance on Allen, an outlier case that altered the prior meaning and effect of the knowledge prong of the assumption of the risk test.
The Court of Appeals disavowed the reasoning in Allen, concluding that the constructive knowledge test, with an objective standard borrowed from contributory negligence, improperly invades the province of the jury. Thus, to the extent that Allen suggested that the compilation of facts and inferences, amounting to less than actual knowledge, may be sufficient to impute knowledge to a plaintiff as a matter of law, that case is overruled. Instead, the Court reaffirmed the standard stated in Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119 (1991), that "the doctrine of assumption of the risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff." 323 Md. at 283, 592 A.2d at 1123 (emphasis added).
The issue of assumption of the risk rests upon the plaintiff's subjective knowledge. But because the focus is on what the plaintiff actually knew, understood and appreciated, the issue is ordinarily left to the jury to resolve. However, Maryland law has historically suggested that the trial judge apply an "objective standard" when determining the appropriateness of applying the defense as a matter of law. The objective standard language stands for the proposition that there are certain risks which any one of adult age must be taken to appreciate, and, in those cases, a simple denial from plaintiff concerning his or her knowledge of the risk will not be sufficient to avoid judgment for the defendant as a matter of law. Thus, in certain circumstances, "when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court." Id. These types of dangers, the "certain risks which anyone of adult age must be taken to appreciate" include such things as "the danger of slipping on ice, of falling through unguarded openings or lifting heavy objects . . . and doubtless many others."
The Court noted that in the cases where the Court of Appeals has approved the entry of judgment as a matter of law based upon assumption of the risk, the danger has been one that any person in the plaintiff's position must have understood, meaning either a foreseeable consequence of engaging in an activity, or an otherwise patent or obvious danger. When a risk is a foreseeable consequence of engaging in a particular activity, there is an implied consent to relieve others of liability for injury and assumption of the risk may be established as a matter of law. The primary distinction between Poole and Thomas and the cases in which the Court approved the grant of judgment, was whether the plaintiff encountered "white ice", which is visible, or "black ice", which is not perceivable until the moment of experience. In cases involving black ice, the Court has consistently held that a plaintiff does not consent to waive claims for liability beyond "those risks which might reasonably have been expected to exist."
In Poole and Thomas, the Court found that the record suggested that the presence of black ice was more akin to an "unusual danger", so that consideration by the trier of fact was necessary to determine if it was "assumed or not." Therefore, for a plaintiff to have knowledge of the risk, as a matter of law, there must be undisputed evidence that he or she had actual knowledge of the risk prior to its encounter. Actual knowledge can be proven, for example, by evidence of the particular plaintiff's subjective knowledge of a risk, e.g. previous experience with or sensor perception of the danger, or objective knowledge of a risk that the law deems "so obvious that it could not have been encountered wittingly."
Accordingly, the Court of Appeals held that the trial Courts in Poole and Thomas should not have concluded that the plaintiffs actually knew of the risk of slipping on "black ice" as a matter of law, because it is unclear whether they had subjective knowledge of the risk, nor is the risk one that "a person of normal intelligence" in the positions of plaintiffs "must have understood."
Posted by Robert D. Anderson on 12/19/2011 at 10:33 PM
Insurer’s Late Notice Defense in Virginia: Dabney v. Augusta Mutual Ins. Co.
In Dabney v. Augusta Mutual Insurance Co., 282 Va. 78, 710 S.E.2d 726 (2011), the Virginia Supreme Court held that the question whether the insured gave the insurer notice of the claim "as soon as is practicable" was a question for the jury, notwithstanding the insured's 254-day delay in providing notice. The Court reversed the trial court's award of summary judgment to the insurer, because the trial court only focused on the length of the delay, and failed to consider the facts and circumstances surrounding the delay.
The Virginia Supreme Court reasoned that the timeliness of the notice of the claim must be considered in light of all the facts and circumstances presented in the case. There were extenuating circumstances here: The insured was unaware of the claim before her death; and the address for notice in the insurance policy had been changed, unbeknownst to the executor of the insured's estate, resulting in the initial written of notice letter being sent to the wrong address, and yet the letter was never returned to sender or acknowledged.
Given the extenuating circumstances, whether the notice was timely under the policy was a question of fact upon which reasonable minds could disagree, and the trial court erred in ruling that the notice was untimely as a matter of law.
Elsewhere in the decision, the Virginia Supreme Court held that the trial court correctly held that the plaintiff was limited to the alleged date of notice plead in the amended complaint. The Court emphasized that the law in Virginia is well established that a court cannot enter judgment based on facts that are not alleged in the parties' pleadings. The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.
However, the Court noted that the plaintiff's counsel did not argue to the circuit court that, pursuant to Code sec. 8.01-377, its pleading could have been amended to conform to the evidence presented at trial. Because the Virginia Supreme Court remanded the case for trial, this raised the possibility that plaintiff's counsel still could amend the pleading to allege alternative dates of notice.
The alternative dates of notice were a key underlying issue at trial, because of the operation of Virginia Code sec. 38.2-2226, which states in pertinent part that:
Whenever any insurer on a policy of liability insurance discovers a breach of the terms or conditions of the insurance contract by the insured, the insurer shall notify the claimant or the claimant's counsel of the breach. Notification shall be given within forty-five days after discovery by the insurer of the breach or of the claim, whichever is later. . . . Failure to give the notice within forty-five days will result in a waiver of the defense based on such breach to the extent of the claim by operation of law.
Thus, if the plaintiff could show that the insurer had received notice of the claim earlier than 45 days from the time that the insurer gave the claimant notice of the late notice defense, the defense would be waived as a matter of law under this statute. Virginia courts have been strict in applying such waiver. See, e.g., Aetna Casualty & Surety Co. v. Compass & Anchor Club, Inc., 33 Va. Cir. 235 (Feb. 24, 1994). See also Morrell v. Nationwide Mut. Fire Inc. Co., 188 F.3d 218 (4th Cir. 1999).
For those reasons, whether or not the trial court would, on remand, allow an amendment of the pleadings to conform to the evidence presented at trial, could mean the difference between victory or defeat for the parties.
All insurers doing business in Virginia and their counsel should keep the notification requirements of Va. Code sec. 38.2-2226 in mind in any claim involving a late notice defense or any other claim involving alleged breach of the conditions of the insurance policy as a defense.
Posted by David B. Stratton on 11/30/2011 at 10:32 PM
Suicide of another held not to support negligence action in District of Columbia
In Rollins v. Wackenhut Services, No. 10-00047 (D.D.C. Aug. 10, 2011), the court dismissed wrongful death and survival actions brought against an employer and a pharmaceutical company by the mother of a twenty-three year old man who was working as an armed security guard when he committed suicide with his work-issued pistol.
The plaintiff alleged that the employer was negligent for failing to do an adequate background check of the decedent before hiring him to a security guard position in which he would be entrusted with a firearm. The plaintiff also brought a wrongful death claim against a pharmaceutical company for manufacturing and distributing a drug that the decedent was taking for his mental issues, despite the drug's known risks of increasing suicidality in certain patients.
The employer first argued that the district court was without jurisdiction because the D.C. Worker's Compensation Act provided the exclusive remedy for injuries that occur during the course of a worker's employment. However, the Act does not apply "where injury to the employee was occasioned solely by his intoxication or by his willful intention to injury or kill himself or another." D.C. Code sec. 32-1503(d). The Court found that the exception set forth in D.C. Code sec. 32-1503(d) applies and the decedent's suicide was not covered by the Act.
Next, the employer argued that the plaintiff failed to state a claim against it, on the grounds that the general rule in the District of Columbia is that a plaintiff may not recover damages in negligence from the suicide of another. This is because suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent's death. Or in other words, suicide is an intervening and independent cause of death which breaks the chain of causation. There are two recognized exceptions to this rule: (1) Where the actor's negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it; and (2) where the defendant has a special relationship involving the treatment or custodial control over the deceased that imposes a duty to take reasonable steps to prevent a reasonably foreseeable suicide. Neither exception applied in this case.
The Court also dismissed the product liability claims against the manufacturers of Abilify on the grounds that the complaint failed to state any factual basis for a strict liability claim based on a defective product. The plaintiff did not meet her burden to allege facts showing that Abilify is defective or is not a reasonably safe product.
Posted by David B. Stratton on 09/04/2011 at 08:40 PM
District of Columbia
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