Maryland Accident Law Blog

Mother of Man Allegedly Killed by Store Employee Sues for Battery

January 25, 2013 | Lebowitz & Mzhen

A Chicago pharmacy is liable for the alleged acts of its employee that resulted in a man’s death, according to a lawsuit filed by the victim’s mother. The employee allegedly choked the man to death after chasing him outside the store, suspecting him of shoplifting. Police did not prosecute the matter at the time, but new evidence has led to calls to reopen a criminal investigation and renewed interest in the civil lawsuit.

On May 8, 2010, 35 year-old Anthony Kyser allegedly tried to shoplift a tube of toothpaste and some crayons from a CVS Pharmacy in Chicago’s Little Village neighborhood. According to footage from a surveillance camera recently leaked to the media, a store manager, Pedro Villanova, chased Kyser out of the store and caught him in the alley. The video appears to show Villanova knock Kyser to the ground and remain on top of him. Three other individuals also hold Kyser down, until eventually he stops moving. The video shows police arriving several minutes later, followed by an ambulance. The emergency responders could not revive Kyser, and he was pronounced dead.

The official cause of death, as determined by the Cook County Medical Examiner’s Office, was homicide. The police, however, declared that the death was an accident and did not make any arrests or file any charges. A spokesperson for the Chicago Police Department stated that detectives reviewed the surveillance footage in 2010 and “determined that criminal charges were not warranted.”

Supreme Court Reviews Class Action Reform Law

January 21, 2013 | Lebowitz & Mzhen

Class action lawsuits have long provided a means for large numbers of claimants to consolidate their claims into a single action, when they might not have the resources to pursue individual lawsuits. This has allowed countless people to seek compensation in cases involving products liability, bad faith insurance practices, and other types of personal injury. Class actions are also common in areas like consumer protection law and certain types of securities litigation. For a variety of reasons, class action lawsuits have also been the subject of much controversy, and legislation supported by businesses, many of whom often appear as defendants in class action cases, has placed limits on the amount class action plaintiffs may recover. The U.S. Supreme Court recently heard arguments in a case, The Standard Fire Insurance Co. v. Knowles, No. 11-1450, that involves a federal statute regulating large state and federal class action lawsuits.

Congress passed the Class Action Fairness Act of 2005 (CAFA) in response to an alleged pattern among trial lawyers of filing class action lawsuits in specific state courts where they could obtain favorable verdicts. Calling this an “abuse” of the class action system, the Republican-led Congress passed the bill by a wide margin, and President Bush signed it into law in February 2005. CAFA applies to class action lawsuits that seek damages in excess of $5 million, and in which more than two-thirds of the plaintiffs are from a different state than the principal defendant. CAFA requires the automatic removal of lawsuits meeting these criteria to federal court, which supporters of the law believed would be less predisposed towards the plaintiffs. CAFA’s opponents called the law an assault on individuals’ legal rights.

Insurer Not Obligated to Defend in Tort Case for Sex Abuse, Maryland Court Rules

January 10, 2013 | Lebowitz & Mzhen

An insurance company is not obligated to defend or indemnify its insured in a civil claim for damages arising from acts of sexual abuse of a child, according to a Maryland court’s order. The U.S. District Court for the District of Maryland, ruling in Harrison v. Fireman’s Fund Ins. Co., Civil Action No. ELH-11-1258 (D. Md., Dec. 29, 2011), denied a request for a declaratory judgment that the defendant insurance company had a duty to defend the plaintiff. After the plaintiffs in the civil sex abuse lawsuit intervened in the case, they and the insurance company each filed motions for summary judgment. The court granted the insurance company’s motion and entered a declaratory judgment in its favor. It denied the intervenors’ summary judgment motion.

The chain of events leading to the declaratory judgment action began with a criminal case. William L. Harrison was convicted of sexual abuse of a minor in August 2009, and received a ten-year prison sentence. See Harrison v. Maryland, 17 A.3d 144 (Md. Spec. App. 2011). According to the appellate court that affirmed the conviction in 2011, Harrison approached the father of the victim, identified as S.B., in the summer of 2006. He reportedly asked the father if S.B., who was thirteen years old at the time, would be interested in working with him on landscaping and other jobs. S.B. worked for Harrison part-time until the summer of 2007, when S.B. told his mother that Harrison had “touched him inappropriately.” Id. at 145. Harrison was indicted in January 2008.

S.B.’s parents filed a civil lawsuit against Harrison in February 2010 for damages related to the abuse of S.B., identified in that lawsuit as S. Doe. The Does pleaded five causes of action against Harrison: negligence, assault, battery, intentional infliction of emotional distress, and a claim for medical expenses. Harrison in turn filed suit against his insurer, Fireman’s Fund Insurance Company, seeking a declaratory judgment as to its duty to defend him in the Does’ lawsuit. The Does intervened, and both they and the insurance company moved for summary judgment.

Maryland Appeals Court Holds Medical Provider Network Not Liable for Negligent Actions of Member Physician – JAI Medical Sys. v. Bradford

December 27, 2012 | Lebowitz & Mzhen

A Maryland appeals court recently heard a case involving a medical malpractice claim against a physician and the managed care organization (MCO) of which he was a member. The court held that the actions of the individual physician do not constitute “apparent agency” and thus that the MCO is not liable for his negligence. This case illustrates the need for a skilled Maryland medical malpractice attorney to identify the liable parties and develop the strongest arguments for the plaintiff’s malpractice case.

In JAI Medical Systems v. Bradford, a jury had reached a verdict for plaintiff Wilhelmina Bradford in the amount of $3,064,000 for negligent medical treatment by Dr. Steven W. Bennett, a podiatrist in the MCO network. Dr. Bennett’s negligence in this case was undisputed; at issue was whether he was acting as an apparent agent for JAI, which would result in JAI’s liability under a theory of vicarious liability.

Vicarious liability is a theory under which one person or entity may be legally responsible for the actions of another person or entity. For example, a corporation may be liable for actions taken by its board of directors or its president, or a retail store might be liable for promises made by its salespersons. Here, the question before the court was whether an MCO may be liable for the negligent actions of one of its member providers. For a plaintiff, vicarious liability is sometimes the key to getting the full amount of compensation for injuries because the individual actor may not have sufficient funds to pay for the extent of injuries.

One way to prove vicarious liability is through the concept of agency. If a person is an agent of another person or entity, then any actions taken by that person—negligent or otherwise—may be imputed to the other person or entity for liability purposes. The court applied the test for agency in this case and found that no reasonable person could have believed that the physician’s actions manifested apparent authority on behalf of JAI. That is, the plaintiff could not have reasonably believed that Dr. Bennett was acting as an agent of JAI. Rather, he was the medical provider, while JAI was merely “an MCO formed solely to act as an administrator of the State Medical Assistance Program.”

Maryland High Court Upholds Transit Authority’s Immunity From Slip-and-Fall Lawsuit – Tinsley v. WMATA

December 20, 2012 | Lebowitz & Mzhen

In a recent decision, the Maryland Court of Appeals (the state’s highest court) held that the Washington Metropolitan Area Transit Authority (WMATA) was immune from a lawsuit resulting from a slip-and-fall accident in a WMATA station. The court’s decision was based largely on the principle of sovereign immunity, which protects the state government and its departments and agencies from lawsuits for monetary damages by citizens, except in certain circumstances.

In this case, Tinsley v. Washington Metropolitan Area Transit Authority, the plaintiff Veronica Tinsley was at the Cheverly Metro Station in Maryland when she slipped and fell on the wet platform. She alleged that she was exercising due care for her safety but slipped because the platform was wet from cleaning. The plaintiff argued that WMATA was responsible for maintenance of the platform but failed to post adequate signs or warnings about the wet platform after cleaning it.

In its defense, the WMATA argued that Section 80 of the WMATA Compact shields it from liability for money damages. The Compact is an interstate agreement among Maryland, Virginia, and the District of Columbia that establishes the WMATA as an interstate entity responsible for mass transit in the area. The court found that because the Compact was signed by states who are entitled to sovereign immunity, the entity the Compact created was likewise entitled to immunity. While Section 80 waives immunity for certain lawsuits (those arising from proprietary functions), it does not waive immunity for lawsuits arising from governmental functions. Finding that the maintenance of platforms was a governmental function, the court held that the WMATA Compact did not waive immunity, so the plaintiff’s lawsuit was barred.

Slip-and-fall accidents are unfortunately common. When they occur on private property due to negligently maintained land or dangers on the property (such as potholes, exposed nails, and rotten flooring), the injured party may typically recover damages from the property owner. This is based on a theory that landowners owe a duty of care to visitors, and that duty encompasses a duty to maintain the land and inspect it to ensure that it is free from unreasonable dangers. This case is unusual in that the property owner was a government entity, and thus immune from liability for monetary damages. The court’s decision is specific to this set of facts and may not apply in all circumstances.

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.