Maryland Accident Law Blog

Appellate Court Determines Dog Attack Plaintiff’s Case Should Go Forward, Despite No Allegations of Physical Contact

February 8, 2016 | Lebowitz & Mzhen

Earlier last month, an appellate court in Nebraska heard an interesting personal injury case in which the plaintiff was injured by her own reaction to a dog’s aggressive approach, rather than any injury sustained by physical contact with the dog itself. In the case, Grammer v. Lucking, the plaintiff sustained injuries to her arm and elbow after she tripped and fell as she was backing away from an approaching dog owned by the defendant.

The Facts of the Case

The plaintiff and her husband were on a walk when, as they approached the defendant’s home, the couple attracted the attention of two of the defendant’s dogs. One of the dogs was on a chain and was unable to get close to the couple, but the other dog was free and was able to run up to the couple. As the dog approached the plaintiff, she stepped back and lost her footing, falling to the ground. She sustained injuries as a result of the fall and filed a lawsuit against the dogs’ owner.

At trial, the court granted summary judgment for the defendant, noting that the dog did not “chase” or “injure” the plaintiff, as is required by state statute.

Maryland Court Allows Plaintiff to Recover Compensation After Accident with Police but Limits Damages Under Tort Claims Act

February 1, 2016 | Lebowitz & Mzhen

Earlier last month, a Maryland appellate court heard a case that was brought by the family of a man who was killed in a motorcycle accident involving a police officer. In the case of Beall v. Holloway-Johnson, the plaintiff who was the personal representative of a man who was killed when a police cruiser struck his motorcycle sought compensatory and punitive damages from the officer for his negligence.

Beall v. Holloway-Johnson: The Facts of the Case

According to the court’s written opinion, the deceased was involved in a fatal motorcycle accident when the defendant, an on-duty police officer, struck the deceased’s motorcycle with his police cruiser. Evidently, the police officer had previously received a radio call about a motorcycle and a Mercedes chasing each other.

The officer arrived in the vicinity and saw a motorcycle. Uncertain if this was the same motorcycle, he followed the motorcyclist. At some point, the motorcyclist sped up, and the officer followed. During the pursuit, the officer’s commanding officer told the officer to cease the pursuit. However, the officer continued to purse the motorcycle. Eventually, the motorcyclist exited the highway and began to slow down in order to do so. As the rider slowed down, the officer collided with the back of the bike, knocking the rider off and killing him instantly.

Court Dismisses Accident Victim’s Lawsuit Against University Based on “Absolute Immunity”

January 25, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court affirmed the dismissal of a plaintiff’s case against the University of California Santa Cruz based on the university’s absolute immunity in building and maintaining a bike path. In the case, Burgueno v. The Regents of the University of California, the court determined that a bike path used by students to get to school was a “trail” designed for recreational use, and therefore the university was entitled to immunity from lawsuits arising on the trail under state law.

Burgueno v. The Regents of the University of California: The Facts of the Case

The accident giving rise to the case occurred on the Great Meadow Bikeway, which is a bicycle-only path that runs through the university’s campus. On the day of the accident, the plaintiff, a full-time student at the university who lived in off-campus housing, was riding his bike on the Great Meadow Bikeway when he was fatally injured in a bicycle accident that occurred on a downhill portion of the trail. As a result, his family filed a wrongful death lawsuit against the university, alleging that the dangerous condition of the Bikeway resulted in the student’s death.

In a pre-trial motion, the university sought to dismiss the lawsuit based on governmental immunity. Government entities cannot always be held liable for injuries occurring on government land, and recreational use statutes grant immunity to governments when the land at issue is open for general recreation purposes. However, this would not apply if the bikeway’s main purpose was for transportation and not recreation. Thus, the issue in this case was whether the Great Meadow Bikeway was a “trail” under the recreational use statute, or whether its primary function was to transport people to and from campus.

Court Upholds “Release of Liability” Form in Whitewater Rafting Accident

January 18, 2016 | Lebowitz & Mzhen

Earlier this month, the Tenth Circuit Court of Appeals decided a case involving a wrongful death claim brought against a whitewater rafting tour company, alleging that the company’s negligence resulted in the death of the individual. Ultimately, however, the court affirmed the lower court’s dismissal of the claims based on a valid “release of liability” form signed by the deceased prior to embarking.

Espinoza v. Arkansas Valley Adventures: The Facts of the Case

The deceased contracted with the defendant tour guide company to take her and a group of family members on a whitewater rafting excursion down the Arkansas River in Colorado. The trip began as most do, with the proper preparation and planning. However, when the rafters approached a notorious rapid known as “Seidel’s Suck Hole,” the raft capsized.

Everyone aboard the raft was thrown into the water. Shortly afterward, everyone on the trip was retrieved by staff members of the defendant except the deceased. Tragically, she drowned before anyone could get to her. Her son brought a wrongful death action against the rafting company, claiming negligence per se and fraud.

Court Finds Government Immune to Design Defect Case Arising from Allegedly Dangerous Roadways

January 11, 2016 | Lebowitz & Mzhen

Earlier last month, a California court heard a case against the County of San Diego brought by an accident victim who was injured when he was struck by another motorist on a roadway he claimed was poorly designed. In the case, Hampton v. County of San Diego, the court ultimately determined that the government’s sovereign immunity was not waived, and as a result it was immune from the lawsuit.

Hampton v. County of San Diego: The Facts of the Case

The plaintiff was a man who was seriously injured when he was involved in a collision with another motorist on a rural intersection. The man filed suit against the other driver in an unrelated case, in which he admitted he could not remember if he stopped at the stop sign prior to entering the intersection. The other driver testified in that case that the plaintiff pulled out “right in front of him, leaving too little time to stop before the collision.” The Highway Patrol conducted an investigation and determined that the accident was caused by the plaintiff’s failure to stop at the stop sign.

After that lawsuit, the plaintiff filed this case against the County, claiming that it designed and maintained a dangerous roadway. Essentially, the plaintiff claimed that the design and construction of the road provided inadequate visibility of oncoming traffic due to a high embankment that was covered with vegetation.

Court Holds Hospital Slip-and-Fall Accident Does Not Trigger Medical Malpractice Requirements

January 4, 2016 | Lebowitz & Mzhen

Earlier last month, one state supreme court handed down an opinion distinguishing accidents that occur at a hospital but do not involve a breach of a professional medical duty from actions brought under a theory of medical malpractice. In the case, Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who was injured when she slipped and fell while visiting a loved one in the defendant’s hospital.

According to the court’s written opinion, the plaintiff was walking from the hospital’s pharmacy to her loved one’s room when she slipped and fell after stepping in a puddle of water that had formed outside the door to a restroom. The plaintiff filed suit against the hospital under a premises liability theory.

The Pre-Trial Motion for Summary Judgment

The hospital claimed that, since the injury occurred at a hospital, the heightened requirements of a medical malpractice lawsuit applied. Specifically, the plaintiff in this case did not submit an expert’s affidavit supporting her position. Thus, in a pre-trial motion, the hospital asked the court to dismiss the lawsuit because the plaintiff failed to comply with a necessary procedural requirement that applies to all medical malpractice lawsuits.

Insurance Company Escapes Liability for Non-Covered Driver

December 22, 2015 | Lebowitz & Mzhen

Earlier this month, a California appellate court issued an opinion in a case between accident victims and the insurance company of the at-fault driver. In the case, Nationwide National Insurance Company v. Shimon, the at-fault party’s insurance company was determined not to be liable for the injuries sustained by the accident victims because the policy did not cover “non-owed” automobiles that were “furnished or available” for the driver’s regular use.

The Facts of the Case

The Shinons (“the Plaintiffs”) were injured as a result of the negligence of a 17-year-old girl, Lionudakis. At the time of the accident, Lionudakis was driving a GMC that was owned by and registered to her father. However, to save money, her father did not list her on the insurance policy.

Lionudakis’ mother, who was separated from Lionudakis’ father, maintained a separate insurance policy that covered her own vehicles, but not the GMC. The policy did, however, cover family members’ use of “non-owned” vehicles, as long as they were not furnished for the family members’ regular use. This restriction was contained in the insurance agreement.

How to Tell Whether You Have Been the Victim of Medical Malpractice

December 15, 2015 | Lebowitz & Mzhen

Doctors, nurses, and other medical professionals are charged with the venerable duty to keep their patients healthy to the best of their ability. Of course, sometimes there is nothing that a medical professional can do to prevent illness or death, since it is the inevitable course of the human existence. However, sometimes the treatment that a medical professional provides raises questions, such as did the doctor do everything he could to diagnose the condition in time for effective treatment? Or was the patient adequately informed of the risks of the procedure prior to agreeing to go through with it?

In these cases, there may be a viable medical malpractice action against the medical professional. However, it is well known that these cases are complex and often involve expert testimony. For that reason, it is best to get an experienced medical malpractice attorney involved early in the process, preferably as soon as the patient notices that there may be something wrong.

A successful medical malpractice case requires, among other things, that the patient prove that the care provided by the medical professional fell below the accepted professional standards in the industry. Often, this is where the bulk of litigation occurs.

U.S. Supreme Court Discusses Foreign Sovereign Immunities Act in Recent Decision

December 8, 2015 | Lebowitz & Mzhen

Earlier this month, the United States Supreme Court decided a case that gave the court occasion to discuss the Foreign Sovereign Immunities Act (the “Act”). The Act is an agreement among nations that limits the liability of foreign governments. The Act generally gives foreign sovereign countries immunity unless the alleged conduct falls within one of the Act’s several exceptions.

In the case, OBB Personenverkehr AG (OBB) v. Sachs, the plaintiff was a California woman who purchased a Eurorail pass over the internet through a U.S.-based travel retailer. In Austria, the plaintiff was attempting to board a train when she fell through a gap between the rail car and the boarding platform. After she fell, a train ran over her legs, requiring the amputation of both her legs. The woman filed suit against OBB, which is wholly owned by the Austrian government.

At trial, OBB sought to dismiss the case against it based on the Act, which generally grants foreign governments immunity from lawsuits. The plaintiff, however, claimed that her case met an exception to the Act’s grant of immunity, specifically that her case “is based upon a commercial activity carried on in the United States by [a] foreign state.”

Court Holds Slip-and-Fall Plaintiff “Assumed the Risk” of Injury When Visiting Haunted Attraction

December 1, 2015 | Lebowitz & Mzhen

Earlier this month in California, an appellate court heard a case brought by a young man who was injured when he tripped and fell after being startled at a haunted attraction. The court ultimately decided that the plaintiff assumed the risk of such an injury by participating in an activity known to be inherently dangerous.

In the case, Griffin v. The Haunted Hotel, Inc., the plaintiff visited the defendant’s haunted attraction with a group of friends. As they group was waiting in line, an announcement was made, warning those before they entered the attraction that, while no one was going to intentionally touch them, they would be chased, scared, and tormented by staff. There was a sign near the entrance warning, “Due to natural surroundings of the park, the ground may be uneven with some obstacles such as tree roots, rocks, etc. Be careful.”

The plaintiff and his friends made it through what they believed to be the entire attraction, and they were waiting in a “well-lit, even surface” when a man with a chainsaw jumped out and began pointing the saw at the plaintiff and his friends. The plaintiff, feeling that the attraction was over and that the man was singling him out, began to back up, away from the employee. The employee was persistent and would not leave the plaintiff alone, and the plaintiff eventually started to run away. As he was running, the plaintiff tripped and fell, injuring his wrist. The plaintiff sued the Haunted Hotel under a premises liability theory.