Maryland Accident Law Blog

Maryland Court Limits Workers’ Compensation Recovery for Second Injuries – WMATA v. Williams

December 13, 2012 | Lebowitz & Mzhen

Maryland workers’ compensation laws provide an avenue for workers in the state to get relatively straightforward relief for injuries that arise out of their work. The Maryland Court of Special Appeals has limited the scope of the state’s workers’ compensation laws. In its opinion earlier this year in Washington Metropolitan Area Transit Authority v. Williams, the court held that a worker who sustains a second work injury may recover under workers’ compensation only if that second injury was directly related to the first injury.

In that case, an employee of the WMATA injured his back and knee while working. He started physical therapy as part of the rehabilitation process, and en route to one physical therapy session, he was hit by a car. As a result of the accident, the employee injured his other knee. He sought to recover workers’ compensation benefits for this injury to his other knee.

The employee argued that he should be entitled to workers’ compensation benefits for the second injury because if not for his first injury, which undisputedly qualified for those benefits, he would not have suffered the second injury. The WMATA argued that the appropriate question was not whether the second injury would have occurred without the first injury, but whether the second injury occurred as a direct result of the first.

The court sided with the WMATA, finding an insufficient causal link between the employee’s first injury and his second. The court held that for a second injury to be recoverable under workers’ compensation, it had to be proximally related to the first injury. That is, the first injury must not only be the actual (“but for”) cause of the second injury, but it must also be the legal cause. Legal, or proximate cause, is established by a finding of a “direct and material relationship” between the two events.

Applying that standard to the facts in the case, the court found that the negligent actions of a driver caused the employee’s second injury and were not at all connected to the first injury, other than the “fortuitous fact that the first injury placed [the employee] in the lot.”

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.

Business Use Exceptions in Auto Liability Policies Under Maryland Law Reviewed by Federal Appellate Court: Forkwar v. Empire Fire and Marine Ins. Co.

November 12, 2012 | Lebowitz & Mzhen

After obtaining a verdict in a car accident lawsuit, the plaintiff sought to enforce the judgment against the defendant’s insurer. The insurance company successfully argued that the “business use” exception barred coverage of the plaintiff’s claim, as the defendant was operating his vehicle in the course of his work at the time of the accident. The court in the original lawsuit had found that the doctrine of respondeat superior, which holds an employer liable for certain acts of an employee, did not apply to the defendant’s employer. The court in the present case, Forkwar v. Empire Fire and Marine Ins. Co., nevertheless found that the business use exception applied. The case highlights an important challenge for Maryland plaintiffs who may obtain a verdict, but might have difficulty enforcing it.

The plaintiff, Augustine Forkwar, was involved in an automobile accident during the early morning of November 26, 2004 with Hameed Mahdi. Mahdi was an independent contractor of J&J Logistics. He owned his vehicle but leased it to J&J. At the time of the accident, he was on his way to a job for J&J when he stopped to get something to eat. Empire Fire & Marine Insurance Company had issued a commercial auto insurance policy to Mahdi, but it asserted that it was not obligated to defend or indemnify Mahdi under the policy’s business use exception.

Forkwar sued Mahdi and J&J in October 2006, alleging negligence against Mahdi and respondeat superior liability against J&J. Forkwar reportedly made no attempt to prove liability against J&J, and she did not oppose its motion for judgment as a matter of law in the middle of trial. The jury entered a judgment against Mahdi, who was a no-show at trial, for over $180,000. Forkwar then filed suit against Empire for indemnification. Empire removed the case to federal court and moved for summary judgment based on the business use exception. The district court granted the motion, and Forward appealed to the Fourth Circuit.

Denial of Death Benefits Upheld by Court Because Decedent’s Intoxicated State Excluded Him from Coverage: Fitzgerald v. Colonial Life & Accident Ins. Co.

November 5, 2012 | Lebowitz & Mzhen

The wife of a man who fell off a pier and drowned filed suit against an insurance company after it refused coverage for accidental death and dismemberment benefits. The insurance company cited an exclusion for accidents involving a presumption of the influence of alcohol. A federal judge ruled in Fitzgerald v. Colonial Life & Accident Ins. Co. that the exclusion applied to the decedent. It found that the decedent’s blood alcohol content exceeded Maryland’s legal limit for intoxication, and that the decedent’s own negligence contributed to his death.

The decedent, Jeffrey Fitzgerald, had been drinking during the evening of September 19, 2009 at a marina in Edgewater, Maryland. According to witness statements, Fitzgerald was observed carrying a forty-two-inch television to a boat docked at the pier. He apparently fell into the water, and his body was found later in fifteen to twenty feet of water about twenty feet away from the pier. The autopsy concluded that drowning was the sole cause of death. A toxicology test performed several hours after his death found a blood alcohol level between 0.27 and 0.31 percent, between three and four times the legal limit in the state of Maryland.

Fitzgerald had a term life insurance policy issued by Colonial Life & Accident Insurance Company that named his wife, Lynette Fitzgerald, as beneficiary. She filed a claim for benefits. After reviewing the police report and other documents, Colonial agreed to pay the full $100,000 under the policy certificate, but concluded that she was not entitled to accidental death and dismemberment benefits. Colonial cited an exclusion in the policy certificate for accidental losses related to illegal drug use or a blood alcohol percentage that would cause a presumption, under Maryland law, that the person was under the influence of alcohol. Maryland’s legal limit for driving under the influence offenses is 0.08 percent.

Court Denies Motion to Dismiss Brought by Manufacturer of Four Loko in Putative Class Action Lawsuit: Yourth v. Phusion Projects, LLC

October 24, 2012 | Lebowitz & Mzhen

A federal judge in New York denied Phusion Projects’ motion to dismiss a putative class action lawsuit alleging damages caused by its product, the energy drink Four Loko. The lawsuit, Yourth v. Phusion Projects, LLC, alleges that the company failed to warn consumers of potential negative effects of the beverage’s allegedly high levels of both caffeine and alcohol. Phusion argued that the plaintiff’s claim was moot because of a settlement offer the company made, and that federal law preempted the plaintiff’s state law claims. The court rejected the defendant’s arguments and denied its motion.

Four Loko is a beverage containing both caffeine and alcohol, marketed to young adults as an “energy drink.” The plaintiff, Jeremiah Yourth, alleges in his amended complaint that a typical unit of Four Loko, which is sold in 23.5-ounce cans, potentially has the same effect as six beers and two cups of coffee. Because of its composition, the beverage can allegedly mask the effects of alcohol consumption and thereby cause injury. According to the plaintiff, Phusion did not disclose the potential harm of its beverage to consumers.

The plaintiff did not assert any personal injuries in his complaint, but rather violations of New York’s deceptive business practices law, false advertising, and unjust enrichment. He alleges that he purchased multiple Four Loko beverages in reliance on the company’s marketing and labeling, and that this gives him standing as a consumer to bring suit. His damages consisted of economic injuries sustained by his purchase of the beverages at what he called a “price premium,” when the products were in reality worthless. Had he known the alleged reality of Four Loko’s health effects, he claims that he would not have purchased the product. He asserts grounds for certification as a class action under the Federal Rules of Civil Procedure, although at the time of the defendant’s motion to dismiss, he had not moved for class certification. The amended complaint requests restitution and other damages for the plaintiff and the class members.

Res Ipsa Loquitur Argument Rejected in Maryland Bus Accident Lawsuit: District of Columbia v. Singleton

October 17, 2012 | Lebowitz & Mzhen

A man and his son sued the District of Columbia for injuries sustained in a bus accident in Prince George’s County, Maryland. The lawsuit asserted vicarious liability against the District for the alleged negligence of its employee, the bus driver. The Court of Appeals of Maryland affirmed the trial court’s judgment for the defendant in District of Columbia v. Singleton, 41 A.3d 717 (Md. 2012), finding that the plaintiffs did not produce sufficient evidence to support a theory of res ipsa loquitur.

The accident occurred on June 20, 2008, when Wayne Singleton and his two sons, ages six and eight, were passengers on a bus for a day trip to the Six Flags amusement park, sponsored by the District’s Department of Parks and Recreation. On the return trip to DC, the bus apparently went off the road and crashed into a tree. Singleton and his eight year-old son, Jaron, sustained injuries in the crash. Singleton was asleep when the bus went off the road, allegedly waking up while it was “airborne,” and Jaron had no memory of the accident. Both suffered minor injuries.

Singleton filed suit against the District in January 2009 on his own behalf and on behalf of Jaron. Because neither plaintiff had personal knowledge of the circumstances of the accident, they relied on the theory of res ipsa loquitur. This translates literally as “the thing speaks for itself.”

Children Risk Serious Injury from Recreational Trampoline Use, Pediatricians Say

October 8, 2012 | Lebowitz & Mzhen

Recreational trampolines, particularly the kind found in backyards, pose a serious risk of injury to children, according to a paper published by the American Academy of Pediatrics (AAP) this month. The AAP has long advocated against the recreational use of trampolines, citing the high risk of fractures, spinal cord injuries, and traumatic brain injuries. Other medical associations and the federal government have also noted the hazards of trampolines.

Trampoline use in the home environment remains a popular activity for children and teenagers, despite repeated warnings from the AAP and other groups. The Council on Sports Medicine and Fitness, part of the AAP, reported on the risks of trampoline use in the October issue of the AAP’s official journal, Pediatrics. It estimates that around 100,000 trampoline-related injuries occur every year, and that in every year since 2005, they have been responsible for three to four thousand hospitalizations and deaths. This actually represents a decrease in the annual injury rate, which reportedly peaked at the same time as trampoline sales in 2004. The American Academy of Orthopaedic Surgeons (AAOS) has also noted a direct correlation between the popularity of recreational trampolines and injury rates.

The original purpose of the modern trampoline was athletic training, not recreation, according to the patent obtained in 1945 by competitive gymnast George Nissen. His patent was for a “tumbling device” he intended to use to train gymnasts and acrobats. It later found a use in military aviation training. Recreational trampolines appeared once manufacturers were able to create frames that consumers could assemble at home. The AAP, the AAOS, and the U.S. Consumer Product Safety Commission (CPSC) all warn of the dangers inherent in trampoline use. Manufacturers have added safety features in recent years, including padding for trampoline frames and nets to prevent users from falling off the sides, but the AAP reports that these measures have not shown any significant impact on the injury rate.

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.