Maryland Personal Injury, Accident, and Victim's Rights BlogMotions in limine are filled by a party to prevent the jury from hearing any mention of potentially prejudicial information that the moving party believes is not admissible at trial. Because juries often decide cases like beauty pageants and award damages on like-ability issues, a good trial lawyer will recognize these issues and attack them in a Motion in Limine.
Over $850 Million in Verdicts and Settlements
Use of “Next Friend” in a Maryland Personal Injury Case
When a minor (under 18 years of age) brings suit in Maryland for a personal injury, the lawyer will bring the suit under the “next friend”. This person is either the parent or the guardian of the minor.
Howard County Jury Awards $188,000.00 to Woman Who Injured Neck in Car Accident
A jury in Howard County, Maryland recently awarded a woman $188,000.00 for injuries she sustained as a car accident victim traveling in a co-workers vehicle, according to an article appearing in todays Dailty Record. Experienced Maryland Accident Attorneys can help victims injured in automobile accidents recover for their injuries. If you are having trouble dealing with your or the other drivers insurance company, an experienced attorney can help you navigate the judicial process to maximize your recovery.
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Copyright Infringement Claims
As a trial lawyer, I have successfully handled several copyright infringement cases representing both the plaintiff and the defendant. Although these types of cases involve an area of the law that most people and lawyers are not familiar with, it really is not that complicated once you sink your teeth into them.
Generally, copyright protects the original works of authorship fixed in any tangible medium of expression, including: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
Copyright protection of an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The term “literary works” is not meant to suggest any criterion of literary merit or qualitative value, rather the term has been broadened to include catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. Also, “Advertisement Copy” is considered “Literary Works.”
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McDaniel College Student Killed by Hit and Run Driver
The Baltimore Sun is reporting very sad news coming out of Westminster this morning. Apparently a driver of a Ford pickup truck slammed into the rear of a Chevrolet Cavalier that was full of McDaniel College students around 11:00pm yesterday. The 19 year old student, Thomas Rouleau, of Gilboa, N.Y., died at the scene. Four other students were in the car, three of which were taken to University of Maryland-Shock Trauma. Fortunately those injuries were not life threatening and they were released.
Peanut Company Shipped Products After Confirming Salmonella
In a shocking revelation, the FDA confirmed yesterday that the Georgia peanut company linked to the salmonella outbreak knowingly shipped products it knew were laced with the contamination. Apparently the company had confirmed contamination as far back as 2007, according to an AP article appearing in today’s Baltimore Sun.
Understanding the Indeterminate Defect Theory in a Maryland Product Liability Case
There are many defective product cases which cause serious personal injury or death. Often, fire or explosion may cause such significant damage to the product that the actual specific cause for the accident can not be determined. The first example to come to mind is an airplane exploding into a million pieces. We know that this is not supposed to happened and that something obviously went wrong. The problem for the lawyer representing victims is how to prove it? Often times, when no physical evidence is preserved in a products liability case, the victim’s lawyers may be forced to rely on the “Indeterminate Defect Theory” . I have done significant research in this area and hope that the legal analysis below will help others similarly situated.
As a threshold matter, in a Maryland product liability action, proof of a defect must arise above surmise, conjecture or speculation, and a plaintiff may not base recovery solely on any presumption that might arise from the happening of an accident. See International Motors, Inc v. Ford Motor Co., 133 Md. App. 269, 275 n.7, 754 A.2d 115, 118 n. 7 (2000). Notwithstanding the above, an inference of a defect may be drawn from the happening of an accident where circumstantial evidence tends to eliminate other causes, such as product misuse or alteration; i.e., an indeterminate defect. The first case in Maryland to address this circumstance was Harrison v. Bill Cairns Pontiac, 77 Md. App. 41, 549 A.2d 385 (1988). The Harrison Court found that the five factors to be considered when determining whether a product defect may be inferred include:
(1) expert testimony as to possible causes;
(2) the occurrence of the accident a short time after the sale;
(3) same accidents in similar products;
(4) the elimination of other causes of the accident;
(5) the type of accident that does not happen without a defect
Not surprisingly, how each of these factors is applied varies based on the testimony at issue in each case, and in many cases, on the whims of each particular judge. The cases set forth below help illustrate the basic tenets of each factor and how Maryland’s state and federal courts have interpreted the same.
Harrison v. Bill Cairns Pontiac
In Harrison, used car buyers brought a product liability action against the manufacturer and seller to recover for damages caused by a fire that started behind the vehicle’s dashboard instrument panel. At the time of purchase by the Plaintiffs, the car was approximately 4 years old and had over 58,000 miles on it. At deposition, one of plaintiffs’ experts stated that the fire was caused by an “electrical short in the dashboard directly behind the instrument cluster.” Harrison, at 44. The expert’s two-fold rationale for reaching this conclusion was: (1) because “all the wires were burnt and they were what was burnt the most” and therefore “that is what I presumed was the central point of the fire;” and (2) because the only way that [the wires] would have caught on fire that way is through a short.” Harrison, at 44. A second expert also concluded that an unidentified defect in the car caused the fire. The basis for that expert’s conclusion was simply that “cars don’t drop molten material on people’s feet while in operation.” (referencing the plaintiff’s testimony that molten plastic from the internal fire dropped on her feet while she was operating the vehicle). Harrison, at 45. In short, the second expert was unable to specifically identify the electrical defect or say whether it was a manufacturing or design defect.. Harrison, at 45. Perhaps more damning, however, was the fact that the second expert conceded that a faulty repair in that area could have caused a problem that resulted in an electrical fire. Harrison, at 46.
Based on the foregoing testimony, the trial court granted summary judgment in favor the defendants. On appeal, the Court of Special Appeals affirmed that decision, holding that the plaintiffs’ evidence did not tend to eliminate the likelihood that a defect in the car, if any, was created after Ford’s manufacture of the vehicle. Curiously, despite enunciating the five factors to be considered when considering whether an expert may infer a product defect from particular circumstances, the appellate court failed to engage in a factor by factor analysis. Rather, in reaching this holding, the Court merely focused on those factors it concluded swung the balance in the defense’s favor. Specifically, the court placed considerable reliance on the second, fourth and fifth factors, highlighting the fact that the automobile had been purchased more than four years after the date of manufacture, had more than 58,000 miles on it at the time of purchase and that nothing was known about its operational or repair history. Such evidence made it impossible, in the court’s mind, to permit an inference that a defect existed at the time of manufacture when combined with the possibility that a faulty repair or other happening might have caused the problem.
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Is Their Strict Liability in Maryland for Defective Products Which are Leased?
In Maryland, liability of a lessor may NOT be imposed in a tort action via the doctrine of strict liability. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Restatement (Second) § 402A, quite simply, is not applicable to lessors.
Section 402A states:
(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and (b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.
In Maryland, liability of a bailor/lessor for hire of a chattel may be imposed in a tort action for negligence. In a negligence case, the plaintiff must prove not merely that the lessor failed to make proper inspections, but either that the lessor knew of a defect or that a reasonable inspection, if made, would have disclosed the defect. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Maryland Civil Pattern Jury Instruction 26:4 states that the lessor of a product “must use reasonable care to make it safe for its reasonably foreseeable usage, and this duty includes the giving of adequate warning of dangers which are not obvious to the user but are known, or through reasonable care should be known to the lessor.” Arguably, a lessor, at times may occupy a similar role/position to a retailer or non-manufacturing supplier. Maryland courts have held that where a seller or other non-manufacturing supplier is nothing more than a conduit between the manufacturer and a customer, the retailer ordinarily has no duty in a negligence to discovery the defects or dangers of a particular product. Eagle Picher Ind. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992). The non-manufacturing supplier, however, may do something more than merely act as a conduit of goods, such as installation, and those additional acts may impose a higher standard of care upon the supplier; i.e., inspect or test the product. Id. (although the issues regarding improper installation were not made).
Beginning in 1995, liability of a bailor/lessor of a chattel may also be imposed in a tort action for breach of express or implied warranty. Maryland Code Annotated, Commercial Law Article, §§ 2A-210, 2A-212, and 2A-213 govern the extension of express and implied warranties to the leasing of goods. The official comment to Section 2A-210 notes that “all of the express and implied warranties of the Title on Sales (Title 2) are included in this Title (2A), revised to reflect the differences between a sale of goods and a lease of goods.”
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Are benefits recoverable under Workers’ Compensation action when injury occurs on the employers premises, but during a lunch break?
Maryland courts apply the “going and coming rule” which provides that “injuries received by an employee while going to or returning from his place of employment do not arise ‘out of and in the course of’ employment , and therefore are not compensable” under the Workmen’s Compensation Act. Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 206 (1977). The rule is based on the premise that workmen’s compensation law is for injuries incurred by an employee engaged in a service that is growing out of his employment. Id. As such an employee who is going to or coming from work is not rendering services related to his employment and is exposed to hazards as a member of the general public and not as an employee.
There are two generally recognized exceptions to the ‘going and coming rule.’ The first is the ‘premises’ exception and the second is the proximity or special hazard rule. The application of these exceptions turns on the individual facts of each case. Id. at 210.
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Standard of care applied to Maryland drivers upon malfunction of a traffic signal at a controlled intersection
Question Presented: What standard of care is owed by a Maryland driver upon entrance into a controlled intersection, where the traffic signal is blank due to malfunction?
Short Answer: Maryland statutes do not specifically address the standard of care applicable where traffic signals at a controlled intersection fail to operate. Drivers of motor vehicles in Maryland always owe a duty of reasonable care, and whether a driver has exercised reasonable care in a particular circumstance is generally a question of fact for the jury. A driver’s right to assume he has the right of way is an important factor in determining whether the standard for reasonable care is met. Should Maryland’s “boulevard rule” apply to the facts, the “favored driver” is presumed to have the right of way.
Analysis:
In Maryland, drivers of motor vehicles always owe a duty of reasonable, ordinary care. Kaffl v. Moran, 233 Md. 473 (1964). The caution required to meet this standard will vary depending upon the circumstances, but the standard remains the same. Heffner v. Admiral Taxi Ser., Inc., 196 Md. 465.
Approaching an intersection, the amount of caution constituting “ordinary care” is elevated because of the increased potential for collision with other vehicles. Heffner, 196 Md. 465. Right of way at an intersection is assigned in accordance with how the intersection is controlled and how the intersecting roads are characterized. At an uncontrolled intersection where neither road is designated as a “through highway”, a vehicle has the right of way over any other vehicle approaching from the left and must yield to any vehicle approaching from the right. Md. Code Ann., Transportation, §21-401; Valcourt v. Ross, 201 Md. 17 (1952). At controlled intersections, traffic signals, stop signs, or yield signs will indicate the right of way. Md. Code Ann., Transportation, §21-403.
At an intersection involving a “through highway”, right of way is determined in accordance with Maryland’s “boulevard rule”, codified in Md. Code Ann., Transportation §21-403. A “through highway” is defined as a “highway or part of a highway (1) on which vehicular traffic is given the right of way; and (2) at the entrances to which vehicular traffic from intersecting highways is required by law to yield the right of way to vehicles on that highway or part of a highway, in obedience to either a stop sign or yield sign placed as provided in the Maryland Vehicle Law.” Md. Code Ann., Transportation §21-101. A “highway” is any “road” or “street”. Md. Code Ann., Transportation §8-101.
Pursuant to the “boulevard rule”, the driver traveling on a through highway is deemed the “favored driver” and the driver traveling on the intersecting highway is deemed the “unfavored driver”. The unfavored driver must stop before entering the through highway and afford the favored driver right of way. The favored driver may safely assume that the unfavored driver will yield, and may proceed through the intersection without stopping. Though the favored driver has the right of way, he is not absolved of his duty to drive lawfully and to proceed through the intersection with reasonable care. MPJI-Cv 18:2 Boulevard Rule. Favored drivers may assume that unfavored drivers will obey the law, but they may not ignore an obvious danger. Dean v. Redmiles, 280 Md. 137 (1977). The “boulevard rule” reflects a policy goal of expediting traffic on boulevards or through highways, so that the larger or more traveled of two intersecting highways will be considered favored. Id Continue Reading ›
Maryland Causes of Action for Trespass and Private Nuisance and Damages Available to Plaintiff
Trespass, as defined in Maryland, occurs when the defendant interferes with the plaintiff’s interest in exclusive possession of land by entering or causing something to enter the land. Rosenblatt v. Exxon Company, 335 Md. 58 (1993). Maryland has adopted the view posited by the Restatement (Second) of Torts, which states that “one is subject to liability to another for trespass…if he intentionally enters land in the possession of the other…or fails to remove from the land a thing which he is under a duty to remove.” Rest.2d. Torts. The damages available to plaintiff pursuant to a cause of action for trespass may be measured either by the loss in value that results (the difference between the value of the land before the trespass and the value of the land afterward) or the cost of reasonable restoration.
A nuisance as defined in Maryland, is anything that unlawfully annoys or does damage to another. It is traditionally a condition on premises or adjacent thereto that is offensive or harmful to those who are off the premises. A public nuisance is a criminal offense involving an interference with the community at large. Rosenblatt, 335 Md. 58 at 79. A private nuisance is a “nontrespassory invasion of another’s interest in the private use and enjoyment of the land.” Id at 80. Unlike trespass, a cause of action for nuisance is not contingent upon whether the defendant physically impinged upon another’s property, but rather whether the defendant substantially and unreasonably interfered with the plaintiff’s use and enjoyment of his property. Trespass interferes with the exclusive possession of land and nuisance interferes with the use and enjoyment of the land. To be a nuisance, the interference, by definition, must be nontresspassory.
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Valuing Personal Injury Cases in Maryland
Experienced personal injury attorneys know there is no question asked more often and as difficult to answer than; What is my case worth? The answer to this question is based upon many factors which an experienced personal injury lawyer can best answer.
Our system of civil justice is terrible at valuing the loss, but rather consistently values the lawsuit. For instance, there are many cases involving horrific tragedies such as the death of a child, the loss of which can never be compensated for. Nonetheless, our judicial system attempts to assign a value to such an incomprehensible losses. Hence, the value of most lawsuits never truly compensate for the irreplaceable loss of life or limb. So how do we lawyers come up with a value for injury cases? Understanding this is an imperfect science, lets get cracking.
Most experienced personal injury lawyers will consider the below factors, as well as personal experience, to provide clients with a range of what a case may be worth. The factors that determine value of a personal injury case include:
1) Strength of liability
2) Venue
3) Severity of Injury
4) Medical Bills: past and future
5) Economic Loss: Wages and Loss of services
6) Aggravating Factors
7) Skill of Attorneys
Strength of liability: The settlement value of a case will often be greatly affected by the strength of the liability. For instance, if two auto accident plaintiffs have the same injury (broken back) the pretrial settlement offers may vary greatly based upon the strength of the liability argument.
If liability is clear (rear end collision), than the pretrial offer will be higher to take into account that there will be a verdict, and it is just a question of how much. On the other hand, if liability is disputed and the defendant has a chance of winning on liability, the pretrial settlement offer will be considerably less to reflect the real possibility that the defendant may walk away paying nothing.
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Standard Maryland Jury Instructions for Injured Pedestrian
LIST OF INSTRUCTIONS (Maryland Civil Pattern Jury Instructions-Unless Otherwise Indicated)
1. Introduction 1:1
2. Questions of Law During Trial 1:2
3. Witness Testimony Consideration 1:3
4. Expert Opinion Testimony 1:4
5. Impartiality in Consideration 1:5
6. Inferences from Statements of Court 1:6
7. Burden of Proof-Preponderance of Evidence Standard 1:7
8. Case Submission on Issues 1:12
9. Conclusion-Unanimous Verdict 1:13
10. Introductory Statement on Damages 10:1
11. Compensatory Damages for Bodily Injury 10:2
12. Susceptibility to Injury 10:3
13. Damages – Collateral Source Rule 10:8
14. Mortality Table – Life Expectancy of Laura Moore 10:26
15. Standard of Care 18:1
16. Definition – Negligence 19:1
17. Definition – Causation 19:10
18. Contributory Negligence – Generally 19:11
19. Last Clear Chance 19:14
20. Definition of Pedestrian 23:1
21. Duty to Pedestrians – Generally 23:2
MPJI-Cv 1:1 INTRODUCTION
a. Instructions at Beginning of Trial
(i) Explanation of Trial Procedure
Members of the jury, in this case the plaintiff, (name), has sued the defendant, (name), claiming damages for (brief description of claim).
The trial will proceed in the following way. You will first hear opening statements by the lawyers. Each party has the right to make an opening statement for the purpose of outlining for you what the party expects to prove. The plaintiff’s lawyer will make the first opening statement and then the defendant’s lawyer may choose whether to make an opening statement.
The plaintiff will then present evidence. After the plaintiff’s case has been presented through witnesses and exhibits, the defendant will then have an opportunity to present evidence. Each witness is first examined by the party who calls the witness to testify and then the opposing party is permitted to cross-examine the witness.
During the trial the lawyers may make objections to the introduction of evidence, or make motions concerning the law. Arguments in connection with objections or motions are usually made out of the hearing of the jury, either here at the bench or after the jury has been excused from the courtroom. This is because questions of law and admissibility of evidence do not involve the jury; they are decided by the judge. It is the duty of a lawyer to make objections and motions which the lawyer believes are proper. You should not be influenced by the fact that a lawyer has made objections or by the number of objections which have been made. You should draw no conclusions from my rulings, either as to the merits of the case or as to my views regarding any witness or the case itself.
After the conclusion of all of the evidence, I will instruct you as to the law which is applicable to this case. You must follow and apply the law as I will explain it to you. After these instructions, the lawyers will make their closing arguments. In their arguments, the lawyers will point out to you what they contend the evidence has shown and the conclusions they would like you to draw from the evidence. The plaintiff’s lawyer will make the first closing argument, then the defendant’s lawyer will make a closing argument. After the defendant’s argument, the plaintiff will have an opportunity to make an argument in rebuttal to the defendant’s argument. What the lawyers say in their opening statements, in their closing arguments, and in making objections or motions during the trial, is not evidence. The reason the plaintiff goes first in each instance is because the plaintiff has the burden of proof.
After closing arguments, you will retire to the jury room and begin your deliberations. It will then be your function and responsibility to decide the facts. You must base your findings only upon the testimony, the exhibits received and the stipulation(s) of the parties and any conclusions which may fairly be drawn from that evidence.
(ii) General Principles
The following general principles are intended to assist you in judging the evidence and to guide you in the performance of your duties as jurors during the course of the trial: [MPJI-Cv 1:3, 1:4, 1:5, 1:6, 1:7 and 1:8, to the extent they are applicable, are to be used here.]
(iii) Admonitions as to Juror Conduct
This case will probably take (insert number) days to conclude. During that period, there will be recesses and adjournments of court when you will be excused. From this point forward, until the case is over and you have rendered your verdict, you may not discuss the case with anyone who is not on the jury. You may not discuss the case even with each other during the trial. You must wait until after you have heard (1) all of the evidence, (2) my instructions as to the law, and (3) closing arguments. In fairness to all the parties to this case, you should keep an open mind throughout the trial. You should reach your final conclusions only during your deliberations after having heard all of the evidence, my instructions as to the law and the lawyers’ closing arguments. Until the trial is over, you must avoid all contact of any kind with any of the participants in the trial, except for common courtesy such as the exchange of greetings. That includes the parties, the lawyers, the witnesses and any persons whom you see in close contact with these individuals. Do not visit the scene of any incident mentioned in the testimony or seek advice from friends or acquaintances as to any issues in this case or otherwise conduct investigation outside the courtroom. The reason for this is that you must decide the case only on the evidence which you have heard and seen in the courtroom and on nothing else.
b. Instructions at End of Trial
Members of the jury, the time has come for the Court to give you its instructions with respect to the law which is applicable in this case. You must apply the law as I explain it to you. Any comments I may make about the facts are only to help you and you are not required to agree with them. It is your function and responsibility to decide the facts. You must base your findings only upon the testimony, the exhibits received and the stipulation[s] of the parties, including any conclusions which may be fairly drawn from that evidence. Opening statements and arguments of the lawyers are not evidence in this case. If your memory of any of the testimony is different from any statement that I might make during the course of these instructions or that counsel might make in argument, you must rely on your own memory.
c. Witness and Party
Any person who testifies, including a party, is a witness.
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Pursuing an Airbag Case
Our firm has recently had considerable success against automobile manufacturers for defective airbags. We are familiar with the technical issues involving airbags that deploy with excessive force, untimely deployment, and airbags that do not deploy at all.
Nissan Issues Massive Recall Over Airbag Problems
Nissan recently decided to recall 204,361 vehicles from its 2007 and 2008 model years in the United States due to the possibility that a passenger side airbag could fail to deploy properly in an accident. The recall covers 2007 and 2008 Nissan Altima, Altima Coupe, 350Z, Murano and Rogue; and Infiniti G35 Sedan, G37 Coupe and EX35 built from March 12, 2007 to May 27, 2008. Please click here for the full article.