Wrongful Death

3 Year Old Killed in Maryland Garage Door Accident

April 15, 2013 | Lebowitz & Mzhen

A terrible garage door accident led to the accidental killing of a 3 year old girl in Maryland earlier this month.

The girl was apparently left unattended for a short period of time, during which it is believed that she began playing around with the remote control for the garage door. It is being speculated that she was opening and closing the door repeatedly when she eventually somehow became trapped under it as it came down on top of her.

When the mother found her the little girl she was still alive, although pinned under the door. Emergency services were called immediately, and the girl was transported to a local hospital, but tragically, she later died of the injuries she had suffered. It is believed that the little girl died from asphyxiation.

Police have confirmed that there has been no indication of foul play, and are accordingly treating the death as a tragic accident, and are investigating the circumstances of the death. Specifically, they suspect a malfunction with the sensors on the door, which are designed to stop the motor should anything be detected under the door. The door was reportedly one that was equipped with sensors that should have stopped before hitting or crushing anything.

Cruise Industry Adopts New Safety Standards After 2012 Cruise Ship Crash

January 28, 2013 | Lebowitz & Mzhen

The Cruise Lines International Association (CLIA), a global trade organization representing cruise lines, has put ten new safety policies into place over the past year in response to the Contra Concordia crash off the coast of Italy last January. The United Nations’ maritime safety agency gave its approval to the new policies near the end of 2012, effectively giving them the force of international law. They include mandatory lifeboat training for crew members, restrictions on bridge access, and minimum requirements for life jackets. One of the new safety policies will directly affect cruise passengers, as it requires emergency drills for all passengers, known as “musters,” prior to the ship’s departure from port.

The Costa Concordia struck a boulder as it cruised near the shore of the island of Giglio, located off the coast of Tuscany in northern Italy, on January 13, 2012. The captain was allegedly trying to execute a display maneuver called a “salute” when the ship ran into a rock, causing it to founder and capsize. Thirty-two of the more than 4,200 people on board, including two Americans, died as a result. It took divers days to locate most of the bodies, and it took authorities weeks to complete positive identifications. Italian prosecutors charged the ship’s captain with multiple counts of manslaughter and other offenses, alleging that he caused the crash by taking the enormous ship dangerously close to the island. The first officer and several officials of Costa Cruises were also under investigation. Numerous civil lawsuits, including wrongful death claims by families of the victims and claims for injuries by both passengers and crew members, followed the criminal investigation.

Father’s Wrongful Death Lawsuit for Daughter Finally Makes It to Trial, but Jury Rules that Defendant Was Not Negligent: Tollenger v. State of Maryland, et al

December 6, 2012 | Lebowitz & Mzhen

A father’s long legal battle over the 2001 death of his daughter in a car accident may have come to an end in November, when a jury ruled that the state of Maryland was not negligent in its maintenance of the Thomas J. Hatem Memorial Bridge, where the accident occurred. The lawsuit, Tollenger v. State of Maryland, et al, alleged that various state transportation agencies negligently failed to place a dividing barrier on the bridge to separate the four lanes of traffic. The state had successfully argued that the Maryland Tort Claims Act (MTCA) contained an implied exception shielding the state from liability for discretionary planning, but the Maryland Court of Special Appeals reversed that judgment in 2011 and remanded the case for trial. The November verdict was on the sole issue of whether the state was legally responsible for the death of the plaintiff’s daughter and other individuals.

The accident occurred during a rainstorm on August 10, 2001, when 12 year-old Ashley Tollenger was riding in a pickup truck driven by her stepfather, 52 year-old Kenneth Connor. The truck reportedly hit a patch of water on the bridge, which extends over the Susquehanna River, and began to hydroplane. The truck veered across the center line and into oncoming traffic, where a Jeep Cherokee collided with it. Ashley Tollenger was pronounced dead at the scene, and Connor was pronounced dead soon after at a nearby hospital.

Garrett Tollenger, Ashley’s father, filed suit in Harford County Circuit Court against the Maryland Transportation Authority, the State Highway Administration, the Maryland Department of Transportation, and other state defendants in August 2004. The lawsuit alleged that the state knew of potential hazards associated with the absence of a center barrier on the bridge, and that it was negligent in failing to place such a barrier. The plaintiff’s witnesses included other individuals who were injured in accidents on the bridge, and a former Harford County executive who had written to the state requesting construction of a barrier on the bridge.

Insurance Companies Ask Court to Declare They Are Not Obligated to Defend Four Loko Manufacturer in Products Liability Lawsuits: Netherlands Ins. Co. v. Phusion Projects, Inc.

November 30, 2012 | Lebowitz & Mzhen

Two insurance companies have brought a declaratory judgment action, Netherlands Ins. Co. v. Phusion Projects, Inc., asking the court to declare that they are not bound to defend or indemnify Phusion in several products liability and wrongful death lawsuits relating to the company’s product, Four Loko. The plaintiffs state that they have obtained similar declaratory judgments in the past, and that the present lawsuits present the same underlying issues. The declaratory judgment case could significantly impact the pending personal injury cases, along with any potential future claimants, by making recovery of damages more difficult.

Four Loko is a beverage marketed as an “energy drink,” containing alcohol and a variety of stimulants like caffeine and guarana. It has been the subject of numerous lawsuits related to injuries and deaths from intoxication allegedly caused by the drink. The declaration sought by the plaintiffs in the present case would affect five pending lawsuits:

– Fiorini v. Phusion Projects, LLC, Superior Court of Fresno County, California. The plaintiff is suing for the wrongful death of his son, who drank two 23.5-ounce cans of Four Loko and allegedly became disoriented and paranoid. He began firing a shotgun, and was subsequently shot and killed by police.

Death of Maryland Family in Auto Accident Leads to First Lawsuit Based on Fetal Death Statute: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

An accident on a Nebraska highway took the lives of a Maryland family. The resulting lawsuit, Baumann v. Slezak, et al, is reportedly the first to invoke that state’s law allowing causes of action for the wrongful death of unborn children. Nebraska’s law, enacted in 2003, differs from Maryland’s wrongful death statute, in that it allows causes of action for prenatal deaths “at any stage of gestation.” Maryland only allows causes of action for the death of viable fetuses.

In the early morning of September 9, 2012, the Schmidt family was stuck in a traffic jam on westbound Interstate 80. The family, which consisted of Christopher and Diana Schmidt and their two children, was driving through western Nebraska on their way from Maryland to California. Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. The couple was driving in separate cars: Diana Schmidt and the two children were in a Toyota Corolla, and Christopher Schmidt was directly behind them in a Ford Mustang. The traffic jam was the result of a deadly collision between two semi-trailers about a mile further up the highway. One semi had become disabled, and although the driver pulled the rig to the side of the road, he allegedly left the trailer blocking traffic. Another semi crashed into the trailer at about 4:30 a.m., killing its driver.

While the Schmidts were stopped at the rear of the long line of traffic, a semi trailer driven by Josef Slezak collided with the back of the Mustang. Slezak was allegedly driving seventy-five miles per hour, and did not make an effort to slow or stop his rig. The collision caused the Mustang to collide with the Corolla, pushing the Corolla under another trailer. All four members of the Schmidt family, as well as their unborn child, died in the collision.

Maryland Law Requires Medical Malpractice Plaintiff to File the Claim With the State Before Filing Suit – Haskins v. Washington Adventist Hospital, Inc.

October 2, 2012 | Lebowitz & Mzhen

The U.S. District Court for the District of Maryland granted a defendant hospital’s motion to dismiss a medical malpractice lawsuit, Haskins v. Washington Adventist Hospital, Inc. A woman filed suit as administrator of her late husband’s estate, alleging that inadequate care by hospital personnel caused his death. The court held that she did not comply with the Maryland Health Care Claims Act (MHCCA), which requires plaintiffs to file a claim with a state agency as a condition of filing a lawsuit. It dismissed the suit without prejudice, meaning she is permitted to re-file.

The decedent, Virginia resident Ernest Haskins, checked in to Washington Adventist Hospital (the “Hospital”) in Takoma Park, Maryland on April 9, 2010. He was there to receive treatment, including surgery, for a spinal fracture and metastatic multiple myeoloma cancer of the spine. He allegedly contracted a MRSA infection (methicillin-resistant Staphylococcus aureus) due to the nursing staff’s failure to follow standard of care procedures. MRSA is a bacterial infection that is resistant to common antibiotic treatments. It is usually spread by skin-to-skin contact. Because of the infection and its risk of contagion, Haskins was initially unable to find a nursing home willing to accept him.

Haskins also suffered stage II sacral decubitus ulcers, commonly known as bedsores, during his stay at the Hospital, causing him severe pain and discomfort. After several months in the Hospital, a nursing home in Richmond, Virginia agreed to admit Haskins. A third-party ambulance transferred him there, a five-hour trip over 129 miles. The Hospital allegedly failed to provide the ambulance crew with a full account of the severity of Haskins’ condition, including the bedsores. Haskins’ bedsores therefore went untreated until he arrived in Richmond. He required surgery at Virginia Commonwealth University Hospital on July 2, and he died shortly afterwards.

Lawsuit Alleges Prison Nurse Denied Emergency Medical Care to Inmate.

August 7, 2012 | Lebowitz & Mzhen

A woman in Minnesota is suing several registered nurses (RNs) over the death of her son, who died while in the custody of the Minnesota Department of Corrections (MDOC). The lawsuit alleges that a nurse employed by the prison withheld emergency medical care from her son, who had a history of seizures, because of “protocols” established by the private contractor hired to provide medical care for the state’s inmates.

Xavius Scullark-Johnson, age 27, was an inmate at the state prison in Rush City, Minnesota with only three months left on his sentence. According to the Minneapolis Star Tribune, the prison has not had 24-hour medical staff since 2002. Doctors, all of whom are employed by health contractor Corizon, Inc., only work Monday through Friday until 4:00 p.m. Nurses at the prison are state employees who work seven days a week, but their shifts end at 10:30 p.m. Corizon and MDOC closely monitor all medical-related expenses, including ambulance trips.

Scullark-Johnson reportedly suffered multiple seizures during the evening of June 28. An on-duty nurse, Linda Andrews, found him on the floor of his cell, “soaked in urine” and “in an altered state of consciousness.” She covered him and left orders to the guards to check on him regularly. Several hours later, a guard called the on-call doctor, Sharyn Barney, informing her that Scullark-Johnson had a seizure the previous evening, and that his cellmate could not wake him. She reportedly advised the guard to monitor him overnight and report his condition to the medical staff in the morning. No one had access to Scullark-Johnson’s medical records at the time because the prison health center was closed for the night. The guard called Barney again several hours later, and the doctor agreed that the guard should call for an ambulance.

Parents of Students Killed in 2010 Boat Accident Settle Federal Lawsuit

May 15, 2012 | Lebowitz & Mzhen

The parents of two students who died in a July 2010 boat accident settled their wrongful death lawsuit a few days into its trial in a Philadelphia federal court. The lawsuit included eighteen survivors from the accident, which occurred on the Delaware River when a city-owned barge collided with a tour boat. The plaintiffs had faced a possible cap on damages for their claims in the lawsuit based on federal maritime law. The parties reached a settlement at the urging of the judge.

The accident occurred in July 2010 on a stretch of the Delaware River in view of downtown Philadelphia. Thirty-seven passengers and crew were on board an amphibious duck boat, a vehicle that can drive on land and in water, commonly used for sightseeing tours. The duck boat had overheated due to a misplaced radiator cap. In the 103-degree heat, the duck boat’s captain reportedly thought the steam off the engine was fire. The captain dropped anchor immediately, leaving the boat stranded in a busy channel.

At the same time, an eighty-yard barge pushed by a tug was coming through the channel.The tugboat captain reportedly had a family emergency and was busy on his cellphone. He moved to a part of the tugboat where he could not see the river. He therefore failed to see the barge bearing down on the duck boat. The barge collided with the duck boat, causing it to capsize. Two passengers, 16 year-old Dora Schwendtner and 20 year-old Szabolcs Prem, both students from Hungary, died in the collision. Twenty-six passengers were injured. The tugboat captain is now serving a one-year prison sentence for involuntary manslaughter.

Mother of Murdered UVA Lacrosse Player Files Wrongful Death Lawsuits

May 4, 2012 | Lebowitz & Mzhen

Sharon Love, the mother of Yeardley Love, has filed two lawsuits related to her daughter’s 2010 murder. Yeardley Love was a lacrosse player at the University of Virginia when her ex-boyfriend, George Huguely, killed her in May 2010. Huguely was convicted of second-degree murder in February 2012 and awaits sentencing. Sharon Love sued Huguely for wrongful death, and has now filed a separate lawsuit against the Commonwealth of Virginia, the university, and several athletic officials in connection with Yeardley Love’s death.

Yeardley Love was found unresponsive in her Charlottesville, Virginia apartment in the early morning of May 3, 2010. Emergency responders pronounced her dead at the scene and noted that she had signs of physical injury, particularly blunt-force head trauma. Police arrested Huguely, whom Love had briefly dated, the following day and charged him with murder. Huguely reportedly had a history of domestic violence complaints with Love. Huguely waived his Miranda rights and told police his account of what happened that night. He said that he entered her apartment and kicked her locked bedroom door open. He shook Love, causing her head to hit the wall repeatedly. He took her laptop when he left in order to dispose of it.

Maryland’s Graduated Driver’s License Law Helps Prevent Teen Fatalities in Car Crashes

April 19, 2012 | Lebowitz & Mzhen

Graduated driver licensing laws (GDL) in Maryland contribute to one of the lowest rates of automobile accident fatalities involving teen drivers, according to a recent study. The Children’s Hospital of Philadelphia (CHOP), working with State Farm Insurance, reviewed data on nationwide traffic accidents involving teenagers between 2009 and 2010. The study defined “teens” as people ages 15 to 19. Maryland has one of the lowest rates of teen-driver-related fatalities in the nation, and the rate has substantially declined in the past five years. Robust GDL laws, in which teen drivers initially receive highly-restricted driver’s licenses and gradually earn additional privileges, show a strong correlation with low rates of fatal automobile accidents involving teen drivers.

CHOP’s report, entitled “Miles to Go,” provides a “yearly snapshot of teen driver safety for the nation.” The study found over 55,000 serious injuries among teens due to car accidents in the period from 2009 to 2010. Thirty percent of those injuries involved head trauma, such as skull fractures or traumatic brain injuries. Head trauma is the leading cause of death for teens in traffic accidents.

A total of 3,413 car crash fatalities involving teen drivers occurred in 2010. Fatalities include teen drivers, passengers of teen drivers, people in other vehicles, and people not in a vehicle (e.g. pedestrians). The report notes that three out of ten teen fatalities in 2010 involved people outside the teen’s vehicle. The total number of fatalities involving teen drivers nationwide declined by over thirty-five percent between 2005 and 2010.

Nationwide, the fatality rate for auto accidents involving teen drivers was 9.5 per 100,000 people. Maryland had the fifth-lowest rate in the country, with 5.8 per 100,000 people. This is a decline of more than forty-eight percent from 2005. The study’s authors credit strong GDL laws in the states with the lowest fatality rates.

Maryland’s GDL law, known as the “Rookie Driver” program, issues a driver’s license to teens in three stages: a learner’s permit, a provisional license, and a full driver’s license. A teen can apply for a learner’s permit at age 15 years and 9 months. A learner’s permit holder can only drive with a person age 21 or older, who has had a full license for at least three years (known as a “qualified supervising driver”), in the front passenger seat with them.