LIABILITY CHRONICLE CHANGES TO MARYLAND PREMISES LIABILITY. Quality Representation, Personal Service THE LIABILITY NEWSLETTER

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1 LIABILITY CHRONICLE THE LIABILITY NEWSLETTER OF FRANKLIN & PROKOPIK Editor: Stephen J. Marshall Summer 2014 Franklin & Prokopik UPCOMING EVENTS September 11, 2014 Virginia Workers Compensation Seminar Fairfax, VA November 4, 2014 Labor & Employment Seminar Turf Valley, MD March 19, 2015 Maryland Liability Seminar Hanover, MD April 30, 2015 Maryland Workers Compensation Seminar Hunt Valley, MD May 14, 2015 District of Columbia Workers Compensation Breakfast-N-Learn Linthicum, MD See website for more details on all of our events. Inside this issue: Delaware Update 2 Florida Update 3 Virginia Update 3 West Virginia Update 4 Why There Will Always Be Lawyers... 5 Attorney Direct Dial 7 CHANGES TO MARYLAND PREMISES LIABILITY MARYLAND S HIGH COURT APPLIES STATUTE OR ORDINANCE RULE TO MARYLAND PREMISES LIABILITY CASES AND FORGIVES CHILD TRESPASSERS In Blackburn Limited Partnership d/b/a Country Place Apartments, et al. v. Alicia Daley Paul, the Maryland Court of Appeals affirmed a reversal of summary judgment finding and held that a property owner s duty to comply with COMAR (Maryland s code of administrative regulations) provisions governing pool safety extends to a child trespasser, despite the common-law rule that property owners owe no affirmative duty to trespassers. In this tragic case, a three-year old boy, Christopher, sustained life altering brain injuries after wandering into the pool located at his parents apartment complex. The boy s mother filed suit against the property owner, property manager, and the pool operator alleging negligence and negligence per se. The pool fence alleged to have violated COMAR regulations and provisions of the Montgomery County code as pertaining to barrier and fencing requirements. In turn, the property owners moved for summary judgment on the basis that they only owed a duty to refrain from willfully or wantonly injuring Christopher, as he was a trespasser. The owners further argued that the codes and regulations could not retroactively apply to the subject pool as it was erected before the codes took effect. The Circuit Court granted the motion for judgment, relying on Maryland common law, finding that a potential violation of a statutory regulation is only relevant if the Court found that property owners owed a duty beyond what is owed to a trespasser. The boy s mother appealed to the Court of Special Appeals which reversed the Circuit Court. The inter mediate court rejected the property owners position that a defendant must owe a commonlaw duty to a plaintiff before violation of a statute can be used as evidence of negligence. The Court of Appeals granted certiorari to further examine the issue, and affirmed the intermediate court. The Court highlighted a crucial distinction as guidance to Maryland trial courts, that the statute must protect a specific class of persons and not be passed for the benefit of the public before violation of a statute can be used as evidence of negligence. In this instance, the COMAR and County regulations concerning Quality Representation, Personal Service Phone: The B & O Building, Two North Charles Street, Suite 600, Baltimore, MD Facsimile: Easton MD Hagerstown MD Herndon VA Martinsburg WV Tampa FL Wilmington DE

2 summer 2014 Page 2 pool fencing and barriers at issue compelled the conclusion that they were enacted to prevent the drowning of young children. Therefore, in this rare instance, where Christopher belonged to the express class of persons the statute was enacted to protect, the violation of the code could be submitted to the jury, despite his status as a trespasser. The case was remanded for trial. In effect, the Blackburn decision mandates that Maryland property owners make certain that pre-existing pools are in compliance with the barrier provisions contained in COMAR and applicable county codes despite extensive costs required to retrofit or change barriers. The Court of Appeals explicitly found that the grandfathering provisions of COMAR did not apply, as grandfathering that jeopardizes the health or safety of the public is explicitly precluded within COMAR. Property owners following the Blackburn decision should ensure compliance with all barrier and fencing requirements or risk facing exposure for injuries sustained by child trespassers. For more information about this article, contact Carrie V. Bohrer at cbohrer@fandpnet.com or (410) DELAWARE UPDATE IN THE TRENCHES: DELAWARE F&P ATTORNEYS DELIVER A WIN FOR A TRUCKING CLIENT AFTER STIPULATING THAT CLIENT S DRIVER WAS RESPONSIBLE FOR COLLISION. Marie Smith v. Harry Greif and Harry s Transport Inc., C.A. No: N MMJ After three days of evidence and argument and half a day of deliberations, William ( Skip ) Crawford and Krista Shevlin recently obtained a verdict in favor of the Firm s client following a jury trial in the Superior Court in Delaware. The case involved a negligence claim filed by Plaintiff arising out of a chainreaction rear end automobile accident. It was undisputed that Plaintiff was stopped in traffic with a vehicle stopped behind her ( the middle vehicle ). It was further undisputed that the driver of our client s tractor-trailer was unable to stop before striking the middle vehicle, forcing it into the rear of Plaintiff s stopped vehicle. However, the force of the middle vehicle striking Plaintiff was miniscule with virtually no damage to the rear of Plaintiff s vehicle. Despite this, the Plaintiff, through expert medical testimony, alleged extensive damages including two surgeries to address a herniated disc at C6-C7 and radiculopathy. Plaintiff was alleging $162, in special damages as well as ongoing pain and suffering and permanent disability. The defense countered the allegations with the testimony from Dr. Scott Rushton, a spinal surgeon and Dr. Sandra Metzler, Ph.D., a biomechanical engineer. Those experts conceded the Plaintiff sustained a cervical sprain/strain in the accident and causally related approximately $14, of medical bills to injuries resultant from the accident. The defense experts also testified the spinal surgeries and extensive treatment were not related to the accident. The claims of the driver of the middle vehicle were settled. Plaintiff sued both the Firm s client driver and the driver of the middle vehicle. The driver of the middle vehcile was dismissed on a Motion for Summary Judgment based on the undisputed testimony of all parties and witnesses that the middle vehicle stopped short of Plaintiff and was forced into Plaintiff after being struck by the Frim s client s driver. The Firm s client conceded responsibility for the incident. The sole issues for the jury were causation of the claimed injuries and the nature and extent of the Plaintiff s damages. Prior to trial, Plaintiff filed a Motion in Limine to exclude the testimony from the defense biomechanical expert, Dr. Metzler, on the basis that her evidence did not meet the Daubert standard. According to Plaintiff s counsel and the trial court, no Delaware Court had ever before allowed the testimony of a biomechanical engineer at trial. The Court held a hearing on the motion and heard testimony from Dr. Metzler regarding the investigation and methods utilized to formulate her opinions. After the hearing, the Court issued an Order permitting Dr. Metzler to testify at

3 summer 2014 Page 3 trial to her opinions as to the force of impact and likelihood of this causing the injuries alleged. Before the Court s ruling, Plaintiff s settlement demand was $400, and she refused to negotiate below that number. Subsequent to the Court s ruling allowing Dr. Metzler to testify, Plaintiff lowered her demand to $160, The Firm s client countered with an Offer of Judgment of $85, The offer was rejected. Following a three day trial, the jury returned its verdict in less than four hours and only awarded Plaintiff $48, in damages. As the verdict was below the Offer of Judgment, pursuant to Delaware law, Defendants are entitled to the litigation costs incurred subsequent to the Offer of Judgment. For more information about this article, contact William Skip Crawford at wcrawford@fandpnet.com or (302) FLORIDA UPDATE SUBSEQUENT MEDICAL MALPRACTICE JURY INSTRUCTION ADOPTED IN FLORIDA CIVIL CASES The Florida Supreme Court recently approved and adopted a standard jury instruction in civil cases which solidifies Florida case law which charges a negligent tortfeasor with legal responsibility for post accident medical malpractice committed by a health care provider who renders treatment to the injured plaintiff. The new jury instruction was prompted by longstanding Florida case law which viewed a treating doctor s negligence in rendering medical care for a tort victim s initial injuries as a part of the consequences caused by the original tortfeasor s actions. In Stuart v., Hertz Cor p., the Court held that an active tortfeasor in an automobile accident could not bring a third-party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff s injuries. After the Stuart decision, trial lawyers have relied on the case to successfully argue that a wrongdoer is liable for the ultimate result, even if the result was caused by the negligence of a physician who increased the plaintiff s damages. With the new standard instruction, juries will be given the following charge: If you find that defendant caused [loss], [injury] [or] [damage] to claimant then defendant is also responsible for any additional [loss] [injury] [or] [damage] caused by medical care or treatment reasonably obtained by claimant. In practice, the adoption of the standard jury instruction on this issue requires defense counsel to ensure that their medical experts understand the application of the law on this issue and to remain diligent in the preparation of their medical experts for deposition and trial. Likewise, clients and claims adjusters alike should beware that an extremely favorable Compulsory Medical Examination report can be a double-edged sword, especially when the examining expert is overly critical of the medical necessity of the plaintiff s subsequent treatment. If the defense physician ultimately suggests that Plaintiff s treating doctor committed malpractice, that medical expert may inadvertently become the star witness - but not for the defense! For more information about this article, contact Natalie Stroud Fenner at nfenner@fandpnet.com or (813) VIRGINIA UPDATE RECENT GOOD CONTRIBUTORY NEGLIGENCE HOLDING IN VIRGINIA (RGR, LLC v. Settle, Supreme Court of Virginia Record No ) Recently, the Supreme Court of Virginia reversed a $2.5 million dollar verdict on the

4 summer 2014 Page 4 basis that the truck driver was contributorily negligent. Plaintiff, the truck driver s widow, sued RGR, LLC ( RGR ), Norfolk Southern and two (2) other commercial business entities alleging that Defendants created a hazardous condition by stacking lumber near the railroad tracks. Plaintiff further alleged that Defendants breached their duty of care to the truck driver by blocking the view of those traveling on a private road and failed to take reasonable steps to make the railroad crossing safe. According to the allegations, as a result the truck driver could not see the approaching train in enough time to stop and avoid the collision. The jury awarded Plaintiff $2.5 million with prejudgment interest and the trial court declined to set aside the verdict. On appeal, RGR argued that the truck driver was familiar with the crossing, and that even though other individuals heard the train s horn, the truck driver did not look to his right or left before attempting to cross the railroad tracks. RGR argued that the truck driver failed to exercise reasonable care and his failure to do so was the proximate cause of the accident. The Court applied the principals set out in Wright v. Norfolk & W. Ry. Co., 245 Va. 160 (1993), a case in which plaintiff drove his truck from a stopped position of safety onto the crossing directly in front of the train when its engine was less than 10 feet away. In the case at hand, the uncontradicted evidence showed that the truck driver was familiar with the crossing, had notice of the limited sightline posed by the configuration of the lumber stacks, and the angle of the tracks to both east and west. Despite the witness testimony that the truck driver was proceeding to the crossing at a speed of five (5) miles per hour or less, the Court ruled that he did not approach the crossing in a manner that would have enabled him to stop, look and listen with reasonable care which would have revealed the presence of the train. Ultimately, the Court found that the truck driver failed to exercise reasonable care for his own safety despite the known dangerous sightline at the crossing. The Supreme Court of Virginia reversed the trial court verdict and entered final judgment for RGR. For more information about this article, contact Jessica J. Berdichevsky at jberdichevsky@fandpnet.com or (571) WEST VIRGINIA UPDATE WEST VIRGINIA SUPREME COURT OF APPEALS CLARIFIES THE BREADTH OF THE COLLATERAL SOURCE RULE On April 6, 2010, Plaintiff Samuel C. Liston was a passenger in a vehicle sitting at a stop light that was hit by a vehicle operated by Defendant John E. Kainey, who had previously consumed a number of alcoholic beverages, such that an hour after the collision, his blood alcohol was measured at.328, over four times the legal limit. At the trial of this matter, the Defendant admitted that he was solely liable for the collision, and the case was bifurcated into a two-phase damages trial. The first phase was to determine the amount of the compensatory damages; and the second phase was to determine whether and to what extent the Defendant should pay punitive damages. In regard to compensatory damages, the Plaintiff argued that he had incurred medical bills in excess of $70, The Plaintiff argued that the incurred medical bills were prima facie evidence that the expenses were necessary and reasonable, and the Plaintiff therefore sought to recover the entire billed amount as his necessary and reasonable medical expenses. Conversely, the Defendant filed a Motion in Limine which asserted that only a portion of each medical bill had been paid either by the Plaintiff, or the Plaintiff s health insurance carrier. Specifically, the Defendant argued that the Plaintiff s medical bills were discounted, reduced, or adjusted downward, that the remaining unpaid portions of the medical bills were written off

5 summer 2014 Page 5 by the Plaintiff s medical providers, that the Plaintiff s damages should be limited to the amounts actually paid by the Plaintiff and the amounts actually paid on Plaintiff s behalf by a collateral source. The Circuit Court denied the Defendant s Motion in Limine, stating that the discounts or write-offs were a collateral source to the Plaintiff. Moreover, the Circuit Court reasoned that under the Collateral Source Rule, the Plaintiff was entitled to recover damages for the value of any reasonable and necessary medical services he received, whether such services were rendered gratuitously, or paid for by another. On appeal, the West Virginia Supreme Court of Appeals stated that the question presented to the Court concerns the process of how to calculate the reasonable value of the Plaintiff s medical services in light of the Collateral Source Rule. To that end, the Court provided a thorough analysis of the evolution of the Collateral Source Rule and West Virginia law, as well as the underlying public policy implications related thereto. Moreover, the Court stated that the status of the Collateral Source Rule in West Virginia requires that a person who is negligent and injures another owes to the latter full compensation for the injury inflicted and payment for such injury from a collateral source in no way relieves the wrongdoer of the obligation. In addition, the Court then cited the Restatement (2 nd ) of Torts, which identifies the four general categories of collateral benefits that should never be subtracted from a plaintiff s recovery as insurance policies, employment benefits, gratuities, and social legislation benefits. In light of these collateral sources and any other benefits received by a plaintiff, the Court stated that a tort defendant s liability can only be reduced by benefits received from the original tortfeasor, the tortfeasor s agent, or a joint tortfeasor. The Court further reasoned that a plaintiff may recover the full amount of his or her reasonable and necessary medical expenses regardless of how or even whether the Plaintiff s obligations to the medical provider was later discharged because the Plaintiff became liable for the bills when the services were received. Therefore, the Court held that the Collateral Source Rule protects the amounts discounted from the Plaintiff s medical bill or that amount which is written off by the medical provider because the amount of the medical expense that was discounted or written off can be considered both a benefit of the Plaintiff s bargain with his health insurance carrier, and a gratuitous benefit arising from the Plaintiff s bargain with the medical provider. In other words, a creditor s partial forgiveness of a tort victim s medical bills via write-down, is properly considered a third party payment, evidence of which is barred by the Collateral Source Rule. Finally, the Court further held that collateral source benefits are not subtracted from a plaintiff s recovery that applies to proceeds or benefits from sources such as insurance policies, whether maintained by the Plaintiff or a third party; employee benefits; services or benefits rendered gratuitously (whether free, discounted, or later written off); and social legislation benefits. The law does not differentiate between the nature of these collateral source benefits, so long as they did not come from the Defendant or a person acting for the Defendant. Practical implications of the Court s ruling in this matter are hard to predict at this point. Some may say that the Court s ruling will not impact the current practices of the plaintiff s bar in the plaintiff friendly venues of West Virginia state courts; however, it is not out of the question to believe that insurance companies may use the Court s ruling to strengthen their negotiating position for unpaid medical bills, such that the amount of write-offs decrease and their collections increase in matters which culminate in civil litigation. For more information about this article contact Gregory E. Kennedy at gkennedy@fandpnet.com or (304) WHY THERE WILL ALWAYS BE LAWYERS... You Might Be A Lawyer If... You are charging someone for reading these jokes. The shortest sentence you have ever written was more than eighty words long.

6 summer 2014 Page 6 You have a daughter named Sue and a son named Bill. Your other car is a BMW. When you look in a mirror, you see a lawyer. When your wife says "I love you," you crossexamine her. s?page=4 WHERE WE VE BEEN... At the USLAW Spring Conference, Ami Dwyer spoke on Wrap Insurance Programs on a Construction Project April 3-5, Colin Bell attended the Trucking Boot Camp for the Claims Professional April 8, 2014 in Chicago, IL and April 10, 2014 in Dallas, TX. Tamara Goorevitz presented The Basics, Just the Basics regarding the provisions of Broker/Carrier/Shipper contracts at the Annual Conference of the Transportation Intermediaries Association in Tucson, AZ April 10, Steve Marshall attended the 2014 DRI Products Liability Seminar from April 9-11 in Phoenix, AZ. Colin Bell attended the Annual Conference of the Transportation Lawyers Association April 29- May 3, 2014 in St. Petersburg, FL. Kiran Rosen attended DRI s Retail and Hospitality Seminar in Chicago, IL May 15-16, Andrew Stephenson attended the Trucking Boot Camp for the Claims Professional May 21, 2014 in Atlanta, GA and May 22, 2014 in Orlando, FL. Steve Marshall, Andrew Stephenson, and Tamara Goorevitz attended the 2014 DRI Trucking Law Seminar in Las Vegas, NV June Colin Bell spoke at the Conference of Freight Counsel in Eagle, CO June 21-23, WHERE WE RE GOING... David Skomba and Andrew Stephenson will be presenting to various syndicates at Lloyds of London, in London, UK, September 3-6, M a r y l a n d s N o n - E c o n o m i c D a m a g e s C a p T a b l e Date of Accident Cap October 1, 2009 to September 30, 2010 $725,000 October 1, 2010 to September 30, 2011 $740,000 October 1, 2011 to September 30, 2012 $755,000 October 1, 2012 to September 30, 2013 $770,000 October 1, 2013 to September 30, 2014 $785,000 FRANKLIN & PROKOPIK 24-HOUR EMERGENCY RESPONSE Because accidents don't always happen during business hours, Franklin & Prokopik has a 24-hour emergency response system in place for those situations where immediate action is needed to protect your interests. If you would like copies of our emergency response cards, please contact Joan Hartman, our Marketing Director, at jhartman@fandpnet.com or call her at and she will be happy to provide them to you Maryland District of Columbia Delaware Florida Virginia West Virginia Speakers Available! We can provide presentations tailored to your specific needs and can satisfy your annual training requirement. Contact Joan Hartman, our Marketing Director, at to make arrangements.

7 summer 2014 Page 7 Attorney Direct Dial Adkins, Jr., Neal G Flynn, Brendan J McAfee, John P Skomba, David A Akpan, Imoh E Fowler, Bradley F McChrystal, Lynne K Stephenson, Andrew T Archibald, John K Goorevitz, Tamara B.* McGough, Timothy P.* Stone, Sally A Arnsdorf, Ralph L.* Green, Elizabeth A McKenzie, Laura S.* Story, David M Ayd, Jessica J.* Handscomb, John J.* Miller, Kara M Thompson, Barbara* Bell, Colin Helsel, Jennifer Ramey Murray, Jessica L Troese, Antonio S Bohrer, Carrie V Hoffman, Joshua M.* Neighbors, Helen D Ward, Cheryl A Cardile, Salvatore J Howell, Brandi R Patel, Archita N Zenkewicz, Kristine R Cole, Andrew L Hunt, Jr., Robert S Patel, Nirav Colvin, Shannon O Corso, Scarlett M Jackson, Maija B James, Jessica L Prokopik, Michael W Rahi, Simran *Admitted to D.C. Bar Cramer, A. Lauren Kennedy, Gregory E Randall, Jr., Albert B Crawford, William A King, Brittany L Rhodes, Kimberly P Dannenberg, Rebecca L.* Kozlowski, Angela G.* Rosen, Kiran Sharma* Dwyer, Ami C Lemmert, Sarah S Royer, Lauren M Erwin, Zachary L.* Litovitz, Erica L Rufe, John P.* Fenner, Natalie S.* Marshall, Stephen J Schantz, Melissa A Fitzpatrick, Lynn M Mayfield, Alex M Shevlin, Krista E First Initial Last Name@fandpnet.com

8 Quality Representation, Personal Service Franklin & Prokopik A Professional Corporation The B & O Building Two North Charles Street, Suite 600 Baltimore, Maryland F&P Liability Chronicle summer South Washington Street Suite 6 Easton, Maryland Facsimile Opal Court Hub Plaza, Second Floor Hagerstown, Maryland Facsimile Dulles Corner Boulevard Suite 1150 Herndon, Virginia Facsimile South Queen Street Second Floor Martinsburg, West Virginia Facsimile Highland Manor Drive Suite 200 Tampa, Florida Facsimile Delaware Avenue Suite 1210 Wilmington, Delaware Facsimile A Professional Corporation - Attorneys at Law Franklin & Prokopik. F&P Liability Chronicle is a quarterly publication of Franklin & Prokopik. This publication is not intended to provide legal advice. Specific questions regarding any legal issue should be addressed to counsel. All Rights Reserved.