Maryland Accident Law Blog

Court Determines Plaintiff’s Photograph of a Raised Portion of the Sidewalk Was Insufficient to Establish That the City Had Notice of the Hazard

August 14, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued an opinion in a premises liability lawsuit that was brought by a woman who tripped on a raised portion of the sidewalk that was maintained by the defendant city. The case required the court to determine if the plaintiff’s evidence was sufficient to prove that the city should have been aware of the defect’s existence.The case discusses the concept of “constructive notice,” which is important in Maryland personal injury cases. Generally speaking, a Maryland slip-and-fall plaintiff must be able to establish that the defendant landowner knew or should have known of the hazard that caused their injuries. However, establishing that a party had actual knowledge of a hazard can be difficult because it would require the plaintiff to be able to see inside the mind of the defendant.

Thus, courts allow for plaintiffs to circumstantially establish knowledge of a hazard through other relevant facts. This concept is called constructive knowledge. Essentially, the idea is that courts are comfortable imputing knowledge when a reasonably attentive person would have noticed the hazard.
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Court Dismisses Plaintiff’s Parking Lot Slip-and-Fall Case, Citing Plaintiff’s Failure to Establish That a Hazard Existed

August 7, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case raising several important issues that commonly arise in Maryland premises liability lawsuits. The case required the court to determine if the plaintiff’s case was properly dismissed following a defense motion for summary judgment. Finding that the plaintiff could not establish the necessary elements of her case, the court affirmed the dismissal of her case.The Facts of the Case

The plaintiff was visiting the defendant fast-food restaurant with a few family members. The plaintiff’s nephew parked in the restaurant’s parking lot, and the group crossed the drive-thru lane and entered the restaurant.

When it came time to leave, they left the same way they had come in. However, this time, as the plaintiff approached her nephew’s car, she got distracted by one of the cars in the drive-thru lane. As she returned her attention to where she was going, she tripped and fell on a cement parking barrier, resulting in serious injuries. The barrier, which was a few inches high, was the type used to prevent vehicles from parking too far into a parking space.

Court Rejects Defendant’s Recreational-Use Immunity Defense, Finding that the Land in Question Was Not Offered for Public Use

July 23, 2018 | Lebowitz & Mzhen

Recently, a state appellate court issued a written opinion in a personal injury case discussing the state’s recreational use statute, and whether it applied to bar the plaintiff’s claim against the defendant. Ultimately, the court concluded that the recreational-use statute did not apply because the defendant’s land was not offered for public use. The case is important for Maryland premises liability plaintiffs in that it discusses a key element of a defendant’s recreational-use defense.

The Facts of the Case

The plaintiff was the son of the defendant (Father), and was injured on his father’s land while hunting. Father owned about 40 acres, and allowed his immediate family to use the property to hunt. Father excluded other members of the community, extended family members, and friends of his children from using the land to hunt.

Father had constructed several blinds from which hunters could hide and wait for animals to approach. One day, the plaintiff was hunting on Father’s land when a wooden board came loose from the blind, and the plaintiff fell 16 feet to the ground below. The plaintiff broke both his legs as a result of the fall, and filed a personal injury lawsuit against his father.

Maryland Premises Liability Cases Involving Known and Obvious Hazards

July 16, 2018 | Lebowitz & Mzhen

All Maryland land owners have a duty to make sure that they maintain a safe premises for those whom they invite onto their property. If a property owner fails to fix a known hazard, or fails to warn visitors about a dangerous condition of the property, the landowner may be held liable for any injuries through a Maryland personal injury lawsuit.

Not all injuries that occur on another’s land, however, will result in the landowner being held liable; an injury victim must be able to establish the elements of a premises liability lawsuit in order to recover for their injuries. Traditionally, these lawsuits are governed by the common-law principle of negligence, which requires plaintiffs to establish that the landowner violated a duty of care that was owed to the plaintiff. In addition, the plaintiff must be able to establish that the defendant’s violation of that duty was the cause of their injuries.

When it comes to defending against Maryland premises liability cases, landowners often make two arguments. First, that they were unaware of the hazard and thus did not have the opportunity to fix it. And second, that the hazard was known to the plaintiff or was so obvious that no duty arose to warn the plaintiff about it. A recent case illustrates the second of these two examples.

Hazard Causing Plaintiff’s Slip-and-Fall at Gas Station Determined to be Open and Obvious, Defeating Plaintiff’s Claim

July 9, 2018 | Lebowitz & Mzhen

Recently, a federal court of appeals issued a written opinion in a personal injury lawsuit discussing the quantum of evidence a plaintiff must present in order to survive a defense motion for summary judgment. Ultimately, the court dismissed the plaintiff’s claim because the court found that the gas station where the plaintiff’s injury occurred did not owe the plaintiff a duty of care to warn her of the alleged hazard.

The case is significant for Maryland personal injury victims because it illustrates the importance of providing evidence to establish each element of a plaintiff’s slip-and-fall case.

The Facts of the Case

The plaintiff was the passenger in her boyfriend’s car, when her boyfriend decided to stop and get gas at the defendant’s gas station. As her boyfriend went to pay for the gas, the plaintiff got out of the car in search of a squeegee to clean the car’s windows.

Maryland Court of Appeals Allows Premises Liability Case to Proceed Based on Defective Condition of a Property Built in 1990

July 2, 2018 | Lebowitz & Mzhen

In a recent wrongful death case before a state appellate court, the court allowed a case to proceed against a property owner for the alleged defective condition of a building built in 1990. The plaintiffs filed a Maryland wrongful death case against the owner and property manager of a shopping center. The plaintiffs alleged that the defendants failed to warn a HVAC repairman that there was no roof access from a wall when he fell from the wall back in 2012. The worker was severely injured as a result of the fall, and died 12 days later from his injuries. The defendants argued the claims were barred by the statute of repose, because there was a 20-year limit on claims, as the building was completed in 1990.

Here, the statute stated that a claim cannot be filed for an injury “resulting from the defective and unsafe condition of an improvement to real property” if the injury occurs more than 20 years after “the date the entire improvement first becomes available for its intended use.” However, Maryland Code of Courts and Judicial Proceedings 5-108 states that the section did not apply “[i]f the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred” in certain causes of action, in certain causes of action involving asbestos, or in a cause of action for injury to real property resulting from a defective and unsafe condition of an improvement to real property under certain conditions.

The plaintiffs contended the claim fell under an exception, and the defendant argued that the exceptions only applied in asbestos cases. The court found the possession-and-control exception applied in non-asbestos cases, as the first time the exception was created, the court did not reference asbestos. Therefore, the court applied the exception to cases against anyone in possession or control of real property, and the plaintiffs’ claims were not barred by the statute of repose.

Expert Witnesses in Maryland Personal Injury Cases

June 22, 2018 | Lebowitz & Mzhen

Some Maryland personal injury cases present simple issues that are within the common understanding of the jurors. However, other cases present complex scientific or medical issues that may require the presentation of an expert witness who is familiar with that particular area.

It is important for Maryland personal injury plaintiffs to understand the law governing when an expert is necessary and the procedural requirements that arise when a party intends on calling an expert witness. A recent appellate opinion illustrates the consequences of not fully complying with the procedural rules pertaining to expert witnesses.

The Facts of the Case

The plaintiff asked her doctor to implant an intrauterine device (IUD) in her uterus as a long-term birth-control option. The plaintiff’s doctor agreed, and implanted the device in 2013.

Procedural Requirements in Maryland Personal Injury Cases Involving Government Defendants

June 15, 2018 | Lebowitz & Mzhen

Historically, governments have enjoyed immunity from lawsuits brought by citizens seeking compensation for injuries that were due to the negligence of a government agency or employee. However, over the years, states have passed a variety of laws permitting victims to pursue a claim of compensation against various government entities. These laws vary by state but are generally known as “Tort Claims Acts.”

While the Maryland Tort Claims Act (MTCA) does allow for victims to obtain compensation for their injuries from government entities in some situations, there are additional procedural requirements that must be followed. Most commonly, potential plaintiffs are required to provide notice of their injury to the state treasurer within one year of the occurrence.

The way in which these requirements are phrased makes them jurisdictional, meaning that a court often has little to no discretion in approving a non-compliant plaintiff’s case. A party’s failure to provide this notice will likely result in their case being dismissed and their losing the ability to recover compensation for their injuries. A recent case illustrates just how strictly these requirements are taken.

Court Finds Residential Lease Agreement Effectively Modified the Applicable Statute of Limitations in Recent Premises Liability Lawsuit

June 8, 2018 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a personal injury case presenting an interesting issue that may arise in Maryland premises liability cases. The court was tasked with determining whether a clause in a residential lease agreement that included limiting the statute of limitations was enforceable. Ultimately, the court concluded that the clause was enforceable, and thus, the court dismissed the plaintiff’s case as untimely.

The Facts of the Case

The plaintiff slipped and fell after stepping on a curb that crumbled under her weight. The curb was located in a common area of the apartment complex where the plaintiff lived.

In the jurisdiction where the case arose, the statute of limitations for a personal injury lawsuit is two years. However, the residential lease agreement signed by the plaintiff prior to moving into her apartment contained a clause requiring she bring any lawsuit within one year of when the cause of action accrues. Specifically, the clause stated that any case “must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.”

Pre-Suit Requirements in Maryland Medical Malpractice Lawsuits

June 1, 2018 | Lebowitz & Mzhen

In Maryland medical malpractice lawsuits, the plaintiff must follow certain procedures that are not required of other personal injury plaintiffs. Primarily, this consists of filing a compliant certificate of merit.

Under Maryland Code section 3-2C-01, the certificate of merit must contain a statement from an expert who is “knowledgeable in the accepted standard of care in the same discipline as the licensed professional against whom a claim is filed.” The affidavit must contain a statement that the defendant doctor’s care was a departure from the applicable standard of care and that the defendant’s breach of this duty was the cause of the plaintiff’s injuries.

The objective of the certificate of merit requirement is to ensure that only meritorious claims are filed and pursued. However, occasionally, the requirement can get in the way of even meritorious claims. As a recent opinion illustrates, a simple misstep by a plaintiff can result in the dismissal of their lawsuit.