Maryland Accident Law Blog

Watch Out Maryland! Around 200,000 Pounds of Eggs Recalled Due to Listeria Outbreak

January 28, 2020 | Lebowitz & Mzhen

When individuals eat, they expect the food to be healthy and safe for consumption. Unfortunately, contaminated food can make its way into grocery stores and restaurants without anyone realizing it until it is too late. For example, last month a large food company voluntarily recalled around 200,000 pounds of hard-boiled and peeled eggs after they were linked to a listeria outbreak. According to a prominent news source covering the recall, the outbreak affected five states, including Pennsylvania which borders Maryland. As a result, one individual died and four were hospitalized.

Officials from the Food and Drug Administration discovered listeria during a routine inspection of the food company’s facility. Listeria causes fever, diarrhea, nausea, headache, and stiffness, and typically those who eat contaminated food show symptoms one to four weeks afterward. The resulting illness can be severe, and sometimes deadly: about 260 people die from it each year, according to The Centers for Disease Control and Prevention.

When individuals get ill or suffer premature death as a result of eating contaminated food, a voluntary recall of the product is too little, too late. While the recall may prevent others from being harmed from the product, it does not help the victims and their families, who may have accumulated large medical expenses. However, Maryland law provides an avenue for these individuals to recover against the food company through civil suits. Those directly harmed and/or their families may be able to bring a negligence claim against the food manufacturer. To be successful in these claims, the plaintiff typically must show that the manufacturer had a duty to ensure that the food was safe, that the manufacturer breached their duty either through an act or an omission, that the manufacturer’s breach caused the plaintiff’s illness, and that the plaintiff suffered real damages as a result.

Is Expert Testimony Necessary in Maryland Accident Claims?

January 21, 2020 | Lebowitz & Mzhen

Expert testimony can be helpful in certain claims to explain evidence to the fact finder. In Maryland accident cases, expert testimony may be admitted if the court decides that the testimony will help the trier of fact to understand the evidence or decide a fact at issue. Yet, expert testimony is required only if the issue is beyond the knowledge of a layperson. Expert testimony is not required “on matters of which the jurors would be aware by virtue of common knowledge.” A recent decision from a state supreme court is an example of a case in which the court found expert testimony was not required.

In that case, a child was allegedly assaulted on the playground during recess at her elementary school. The student and her mother filed a claim against the city and the Board of Education alleging negligence. The trial court found in favor of the plaintiffs, holding that the school provided inadequate supervision at the time. The trial court found there were 3 or 4 staff members and 1 student intern, which was insufficient to supervise over as many as 400 students. An appellate court reversed the decision, stating that the court should not have found the defendants breached their duty without expert testimony on the issue.

However, the state’s supreme court reversed again. The court held that expert testimony was not necessary in that case. The court explained that expert testimony is required generally in cases amounting to professional malpractice. Expert testimony is not required in cases where the negligence is so extreme that it is clear to a layperson and it is not required where the alleged error is within the common knowledge of a layperson.

Establishing Negligence Per Se In Maryland Personal Injury Cases

January 15, 2020 | Lebowitz & Mzhen

Maryland personal injury lawsuits, although often complicated, boil down to four simple elements. In order to be successful, the plaintiff must prove (1) the defendant owed them a duty; (2) the defendant breached that duty; (3) the breach caused the plaintiff’s injuries; and (4) the plaintiff suffered real damages as a result. In some cases, the first two of these elements can be established just by the existence of a statute and the defendant’s violation of that statute. When this happens, the claim is considered negligence per se, and the plaintiff then only really has to establish two of the elements, instead of four.

A state appellate court recently considered a negligence per se claim in a wrongful death suit. According to the court’s written opinion, the deceased was driving his four-wheeler on another’s property, and the owner had given him permission to be there. While driving, one of the vehicle’s wheels fell into a well that was hidden from view by vegetation. This caused the vehicle to turn over, and the driver fell into the well and tragically died.

The deceased’s wife, the plaintiff in this case, brought a negligence action against a forestry service who had done work on the property, alleging that they were negligent in failing to report the open well to the property owner. The plaintiff pointed to a state statute that required anyone aware of “an open abandoned well or hole” located on “public or private property” to the governing authority. According to the plaintiff, this statute created a duty, and the defendant’s failure to report the well-constituted a breach of that duty, satisfying two of the required elements in a negligence suit.

The Doctrine of Res Ipsa Loquitur in Maryland Accident Cases

January 6, 2020 | Lebowitz & Mzhen

In some personal injury cases, there is no direct evidence that a party was negligent, but there is also no other reasonable explanation for how the plaintiff’s injuries occurred. The doctrine of res ipsa loquitur applies in cases in which negligence can be inferred, based on the circumstances, but there is no direct evidence of negligence. Under Maryland law, res ipsa loquitur is available in accident cases if an injury or accident “is one which ordinarily would not occur without negligence on the part of the operator of the vehicle,” and “the facts are so clear and certain that the inference of negligence arises naturally.” Res ipsa loquitur allows a plaintiff to establish a prima facie case of negligence, without having direct evidence of negligence. The doctrine requires that a plaintiff show: (1) the accident was a type that does not normally occur absent negligence, (2) the accident was caused by an instrument exclusively in the defendant’s control, and (3) the accident was not caused by the plaintiff. In a recent case, a court considered the applicability of the doctrine of res ipsa loquitur after small metal fragments were discovered in a container of yogurt.

According to the court’s opinion, the plaintiff bought a small container of yogurt that was manufactured and packaged by Yoplait. The plaintiff claimed that she opened the container, stirred it, and began eating, when she felt a crunching sensation, which she found out were sharp metal fragments. She was taken to a hospital, where 17 metal fragments were removed from her stomach. She filed claims against Yoplait for negligence and negligence per se. A trial court found that the doctrine of res ipsa loquitur applied in this case because there was “an inference that the metal flakes were inserted . . . prior to the container being sealed.” But the trial judge found that Yoplait had rebutted the inference and dismissed the case.

The appeals court held that the judge should not have dismissed the case because if res ipsa loquitur applies, the case should go to a jury for a decision. The court explained that the doctrine warrants an inference of negligence, rather than a presumption of negligence. Therefore, the trial court should have allowed the jury to make a decision concerning Yoplait’s negligence and whether Yoplait overcame the inference of negligence. Accordingly, the appeals court sent the case back to the trial court for further proceedings. The court also noted that Yoplait failed to appeal the court’s ruling that res ipsa loquitur applied in the case, so it could not decide whether that decision was correct.

The Assumption of Risk Doctrine Is a Common Barrier to Maryland Plaintiffs

December 27, 2019 | Lebowitz & Mzhen

When someone is injured in a Maryland accident, state law allows them to file a civil lawsuit against the responsible party. In order to be successful in a negligence claim of this type, the plaintiff must prove four things. First, the defendant owed a duty of care toward the plaintiff to act in a way to protect them from harm. Second, the defendant breached this standard. Third, the breach was the proximate cause of the injury. Finally, the plaintiff was injured and suffered actual harm as a result. In a straightforward negligence case, proving these four things will be enough for victory. However, many negligence cases get complicated, and there are some common barriers that bar plaintiffs from recovery. One of these barriers is the assumption of risk doctrine.

The term “assumption of risk” refers to when the plaintiff unnecessarily exposed themselves to the harm that was done to them. For example, a recent state appellate case considered the issue. According to the court’s written opinion, the plaintiff was helping the defendant dismantle an old building and noticed that there were skylights on the roof. The plaintiff volunteered to go up on the roof and remove the screws. Since the roof was so dirty and weathered, he was unable to see the skylights. While working on the roof, the plaintiff fell through a skylight and onto the concrete below, suffering multiple severe injuries. The plaintiff then sued the defendant, the owner of the building, for negligence.

Under Maryland laws, situations like this become more complicated than a straightforward negligence case because the defendant can argue that the plaintiff assumed the risk of his injuries by going up on the roof, knowing that there were skylights and that he could not see them. In these cases, the defendant can raise this defense by proving three things. The plaintiff had knowledge of the risk, the plaintiff understood that the risk could lead to serious harm, and the plaintiff voluntarily assumed the risk anyway. In the case described above, for example, the defendant must prove that the plaintiff was aware of the skylights on the roof and understood that they were fragile and that falling through them would cause harm, yet he volunteered to go up on the roof anyway. If the defendant can do that, Maryland law would allow him to escape liability for the plaintiff’s injuries.

Auto-Pilot Vehicles Still Pose a Major Safety Concern to Maryland Motorists

December 21, 2019 | Lebowitz & Mzhen

As technology advances, so do the safety features on automobiles. Many new models of vehicles now have automatic emergency braking, forward collision warnings, blind spot warnings, and more high-tech safety features designed to prevent crashes and make the roads safer. Some vehicles now even have autopilot features, in which vehicles steer, accelerate, brake, and move into different lanes automatically. Although drivers are supposed to be actively supervising the vehicle while it is in autopilot mode, there is a growing body of evidence that drivers often do not supervise their car when on autopilot, mistakenly believing that they are safe just because the feature is turned on. As autopilot and other safety features become more common on Maryland’s roads, drivers should be aware that they do not eliminate the risk of car accidents and remain cautious while driving. Unfortunately, even technologically advanced cars can get into dangerous Maryland accidents.

For example, a Tesla Model 3 was recently engaged in autopilot mode when it rear-ended two cars, including a police car. According to a news report covering the accident, the driver was checking on their dog in the back seat when the incident occurred, rather than actively supervising their vehicle. This is not the first time that cars on autopilot have gotten into accidents, and Tesla’s autopilot mode has been involved in at least three other crashes in the U.S., all of which led to fatalities. It is unknown at this time if the crashes are because of autopilot failures, or because of drivers being negligent while on the road, assuming that autopilot makes them safe.

Drivers, regardless of whether or not their vehicle has advanced safety features, should always remain cautious when on the road. Despite technology advances, car accidents remain a leading cause of Maryland deaths and injuries and can happen in the blink of an eye. When accidents do occur, state law allows for those injured to bring a personal injury claim against the negligent driver. Evidence that a driver was distracted while driving, whether it be from texting, talking to a loved one, admiring a view, or checking on a pet or child in the back seat, can strengthen the plaintiff’s case and make it more likely that they recover damages from the defendant.

The Complicated Relationship Between Maryland Personal Injury Law and Contract Law

December 16, 2019 | Lebowitz & Mzhen

In Maryland, plaintiffs in personal injury cases need to prove four things to be successful: the defendant had a duty of care; the defendant breached that duty through an act or an omission; the defendant’s breach was the proximate cause of the plaintiff’s injuries; and real damages were sustained. These cases, also called tort cases, are separate from contract cases, in which a party can sue another party for breaching a contract. Sometimes, however, a Maryland resident is injured because of the negligent actions of another person, with whom they contracted. This area of law can become difficult to figure out.

For example, take the facts of a recent appellate case. According to the court’s written opinion, the plaintiffs, a couple, entered into a construction contract in 2009 with the defendant contractor to build a new house. Shortly after the house was finished, the plaintiffs discovered leaks in the doors, which allowed rainwater to get into the house. The contractors fixed the leaks as they were discovered but did not look for mold. Four years later, the plaintiffs and their four children, living in the house, experienced medical symptoms and brought in an inspector, who discovered mold in the basement below where the leaks had occurred. In addition, the doors were still leaking. The contractor tried but failed to fix these leaks and remediate the mold, applying anti-microbial solution and attempting to clean mold where it was found, but it did not look for additional mold. Later, mold was discovered in the drywall of the house, and the contractor again attempted to deal with it, although the mold continued to grow. Finally, the plaintiffs and their children abandoned the home due to the mold and the resulting medical symptoms and sued the contractor in tort for the injuries that they sustained.

Maryland law allows plaintiffs to bring tort claims against defendants with which they contracted, as long as the damages sustained are not purely economic and based upon contractual duties. For example, the plaintiffs could not bring a tort claim against the defendant contractor for failing to build the fence properly and ask for damages in the amount that it would cost to fix the fence. That case would have to be handled through a contract claim because the damages are purely economic and only come from the contract in which the defendant agreed to fix the fence. In contrast, the plaintiffs here would be able to bring suit because they suffered real medical injuries and symptoms from the mold, and the defendants were negligent in failing to find and clean the mold.

Why Maryland Drivers Should Be Extra Cautious This Holiday Season

December 6, 2019 | Lebowitz & Mzhen

The holidays are a time of fun and festivities, with individuals across Maryland taking time off to visit family and engage in yearly traditions. With the cheer of the holidays, however, comes an unfortunate uptick in Maryland driving accidents. There are three main reasons that these accidents increase around the holidays, and Maryland drivers should be aware and particularly cautious when driving this month.

First, the roads and highways are generally busier during the holiday season, as individuals often drive long distances to visit family and friends. Because of work schedules and time off, many individuals who wish to travel for the holidays do so around the same time, causing congestion in the streets and increasing the likelihood of an accident. In fact, the number of Americans traveling by car over the holiday season has been increasing each year—according to the American Automobile Association (AAA), about 102.1 million people traveled by car in December 2018, a 4.4% increase from 2017. The number is expected to be even higher this year.

Second, drivers may generally be more distracted and drowsier on the road, causing more preventable accidents to occur. The holiday season is busy, and individuals may stay out late at a holiday party and then find themselves extremely tired while driving home. Others may stay late at work in the weeks heading up to their vacation, leading to unfocused driving. Unfortunately, distracted and drowsy drivers are more likely to make risky decisions while driving, potentially leading to an accident.

Expert Standards in Maryland Medical Malpractice Claims

November 26, 2019 | Lebowitz & Mzhen

Proving that a certain act is legally negligent in a Maryland medical malpractice claim hinges on the testimony of an expert witness. This is because many medical decisions are difficult for nonmedical professionals to evaluate, and expert testimony helps the jurors understand the potentially complex issues involved in a case. In fact, lawmakers have determined that expert testimony is required to successfully bring a medical malpractice claim.

Under the Maryland Health Care Malpractice Act, a plaintiff has to file a Certificate of Qualified Expert within 90 days of the filling of the claim. A plaintiff has to prove that a health care professional failed to meet the standards of practice among members of the same health care profession with similar training and experience. The Certificate of Qualified Expert is an attestation from a qualified health care provider . . . that the care provided was “not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities” at the time of the acts in question. A court can review a certificate and determine whether it meets the requirements under the statute.

The expert health care provider must have had qualified experience in the defendant’s specialty, related health care field, or in the field that the defendant provided care or treatment within 5 years of the acts in question. Maryland also has a law that an expert may not devote more than 20 percent of the expert’s professional time to activities that involve providing testimony in personal injury claims. The following example shows the importance of understanding the standards required of health care providers to weigh a provider’s choices.

Maryland Slip and Fall Accidents Caused by Ice and Snow

November 18, 2019 | Lebowitz & Mzhen

Each year, thousands of people are injured in Maryland slip and fall accidents. Not surprisingly, a large percentage of these accidents occur in the winter months, when the presence of ice and snow makes navigating parking lots, sidewalks, and driveways a potentially dangerous experience.

When it comes to determining who is responsible for clearing snow or ice, Maryland law does not provide clear answers. Under general premises liability law, landowners owe a duty of care to those whom they allow onto their property. This duty requires a property owner to take reasonable care in maintaining their property and that they warn guests of known dangers. Maryland does not have a law directly discussing a property owner’s duty to clear snow and ice. Thus, the extent of a landowner’s duty, if any, will be determined by considering the following:

Did the landowner know about the snowy or icy conditions?