Posted on February 06, 2009 in Driving Under the Influence

In Maryland, DUI/DWI Attorneys are often confronted with cases in which a client was found not to be driving while impaired or under the influence, but instead was found to be sleeping in his or her vehicle while under the influence of alcohol. This situation implicates the so called "shelter defense" in Maryland. Unlike in some other states, Maryland legislators have chosen not to make sleeping in one’s vehicle an absolute defense to DUI/DWI charges. Some states have decided that as a matter of public policy, they want to encourage people who are driving under the influence to pull over and "sleep it off" so to speak, rather than continue to endanger the public by continuing down the road while under the influence. In these States, it matters not where the person was parked, how long they had been there or whether or not they admit to driving the vehicle to the location while under the influence. If the person made the decision to pull over and park their car rather than continue to drive under the influence, they simply may not be prosecuted for DUI/DWI in these states. Not so in Maryland.

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 Posted on February 06, 2009 in Personal Injury

There are many defective product cases which cause serious personal injury or death. Often, fire or explosion may cause such significant damage to the product that the actual specific cause for the accident can not be determined. The first example to come to mind is an airplane exploding into a million pieces. We know that this is not supposed to happened and that something obviously went wrong. The problem for the lawyer representing victims is how to prove it? Often times, when no physical evidence is preserved in a products liability case, the victim’s lawyers may be forced to rely on the "Indeterminate Defect Theory" . I have done significant research in this area and hope that the legal analysis below will help others similarly situated.

As a threshold matter, in a Maryland product liability action, proof of a defect must arise above surmise, conjecture or speculation, and a plaintiff may not base recovery solely on any presumption that might arise from the happening of an accident. See International Motors, Inc v. Ford Motor Co., 133 Md. App. 269, 275 n.7, 754 A.2d 115, 118 n. 7 (2000). Notwithstanding the above, an inference of a defect may be drawn from the happening of an accident where circumstantial evidence tends to eliminate other causes, such as product misuse or alteration; i.e., an indeterminate defect. The first case in Maryland to address this circumstance was Harrison v. Bill Cairns Pontiac, 77 Md. App. 41, 549 A.2d 385 (1988). The Harrison Court found that the five factors to be considered when determining whether a product defect may be inferred include:

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 Posted on February 06, 2009 in Personal Injury

In Maryland, liability of a lessor may NOT be imposed in a tort action via the doctrine of strict liability. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Restatement (Second) § 402A, quite simply, is not applicable to lessors.

Section 402A states:

(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and (b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

In Maryland, liability of a bailor/lessor for hire of a chattel may be imposed in a tort action for negligence. In a negligence case, the plaintiff must prove not merely that the lessor failed to make proper inspections, but either that the lessor knew of a defect or that a reasonable inspection, if made, would have disclosed the defect. Bona v. Graefe, 264 Md. 69, 285 A.2d 607 (1972). Maryland Civil Pattern Jury Instruction 26:4 states that the lessor of a product "must use reasonable care to make it safe for its reasonably foreseeable usage, and this duty includes the giving of adequate warning of dangers which are not obvious to the user but are known, or through reasonable care should be known to the lessor." Arguably, a lessor, at times may occupy a similar role/position to a retailer or non-manufacturing supplier. Maryland courts have held that where a seller or other non-manufacturing supplier is nothing more than a conduit between the manufacturer and a customer, the retailer ordinarily has no duty in a negligence to discovery the defects or dangers of a particular product. Eagle Picher Ind. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992). The non-manufacturing supplier, however, may do something more than merely act as a conduit of goods, such as installation, and those additional acts may impose a higher standard of care upon the supplier; i.e., inspect or test the product. Id. (although the issues regarding improper installation were not made).

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 Posted on February 05, 2009 in Driving Under the Influence

Breathalyzer machines, commonly used by Maryland police, detect and measure the alcohol present in air that is breathed out. During the consuption of alcohol, the alcohol crosses from the intestine into the bloodstream. When the blood circulating around the body gets to the lungs, some of the alcohol in the blood crosses into the air contained in the tiny sacs of the lungs. This same air, that is breathed out of the lung, contains alcohol that can be measured by breathalyzer machines.

Researchers have determined the ratio of breath alcohol to blood alcohol. The test result for a breathalyzer estimates the concentration of alcohol in the blood. Although different individuals have some variation, blood alcohol concentration (BAC) is approximately 2,300 times greater than breath alcohol concentration. Breath-alcohol analysis is fast and easy to use, unlike the more reliable blood test. This makes the Breathalyzer breath-test machine a useful tool of choice for Maryland police to monitor drunk drivers.

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 Posted on February 05, 2009 in Personal Injury

Maryland courts apply the "going and coming rule" which provides that "injuries received by an employee while going to or returning from his place of employment do not arise ‘out of and in the course of’ employment , and therefore are not compensable" under the Workmen’s Compensation Act. Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 206 (1977). The rule is based on the premise that workmen’s compensation law is for injuries incurred by an employee engaged in a service that is growing out of his employment. Id. As such an employee who is going to or coming from work is not rendering services related to his employment and is exposed to hazards as a member of the general public and not as an employee.

There are two generally recognized exceptions to the ‘going and coming rule.’ The first is the ‘premises’ exception and the second is the proximity or special hazard rule. The application of these exceptions turns on the individual facts of each case. Id. at 210.

THE PREMISES EXCEPTION

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 Posted on February 05, 2009 in Personal Injury

Question Presented: What standard of care is owed by a Maryland driver upon entrance into a controlled intersection, where the traffic signal is blank due to malfunction?

Short Answer: Maryland statutes do not specifically address the standard of care applicable where traffic signals at a controlled intersection fail to operate. Drivers of motor vehicles in Maryland always owe a duty of reasonable care, and whether a driver has exercised reasonable care in a particular circumstance is generally a question of fact for the jury. A driver’s right to assume he has the right of way is an important factor in determining whether the standard for reasonable care is met. Should Maryland’s "boulevard rule" apply to the facts, the "favored driver" is presumed to have the right of way.

Analysis:

In Maryland, drivers of motor vehicles always owe a duty of reasonable, ordinary care. Kaffl v. Moran, 233 Md. 473 (1964). The caution required to meet this standard will vary depending upon the circumstances, but the standard remains the same. Heffner v. Admiral Taxi Ser., Inc., 196 Md. 465.

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 Posted on February 05, 2009 in Complex Civil Litigation

Trespass, as defined in Maryland, occurs when the defendant interferes with the plaintiff’s interest in exclusive possession of land by entering or causing something to enter the land. Rosenblatt v. Exxon Company, 335 Md. 58 (1993). Maryland has adopted the view posited by the Restatement (Second) of Torts, which states that "one is subject to liability to another for trespass…if he intentionally enters land in the possession of the other…or fails to remove from the land a thing which he is under a duty to remove." Rest.2d. Torts. The damages available to plaintiff pursuant to a cause of action for trespass may be measured either by the loss in value that results (the difference between the value of the land before the trespass and the value of the land afterward) or the cost of reasonable restoration.

A nuisance as defined in Maryland, is anything that unlawfully annoys or does damage to another. It is traditionally a condition on premises or adjacent thereto that is offensive or harmful to those who are off the premises. A public nuisance is a criminal offense involving an interference with the community at large. Rosenblatt, 335 Md. 58 at 79. A private nuisance is a "nontrespassory invasion of another’s interest in the private use and enjoyment of the land." Id at 80. Unlike trespass, a cause of action for nuisance is not contingent upon whether the defendant physically impinged upon another’s property, but rather whether the defendant substantially and unreasonably interfered with the plaintiff’s use and enjoyment of his property. Trespass interferes with the exclusive possession of land and nuisance interferes with the use and enjoyment of the land. To be a nuisance, the interference, by definition, must be nontresspassory.

In Maryland, a cause of action under a theory of private nuisance requires a showing (1) that the nuisance has diminished materially the value of the property as a dwelling and (2) that the nuisance has seriously interfered with the ordinary comfort and enjoyment of the property. Significant harm is necessary to establish liability for a private nuisance. Examples of the kinds of activities that have been recognized by Maryland courts as private nuisances include polluting smokestacks, corroded tanks leaking hazardous waste into groundwater, barking dogs, noisy trains, and malodorous hog farms.

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 Posted on February 05, 2009 in Criminal Defense

I recently filed a multi-million dollar case against the Baltimore City Police Department involving an illegal and unwarranted body cavity search. Having received many inquiries since than on the law in this area, I will explain the nuts and bolts of the legality of strip searches in Maryland.

The key Maryland cases regarding the reasonableness of a strip search are State v. Nieves, 383 Md. 573 (Md. 2004) and Paulino v. State, 359 Md. 341 (Md. 2007). Both cases reiterate that it is well established both that the State has the burden of proving the legality of a warrantless search and that warrantless searches are per se unreasonable under the Fourth Amendment absent some recognized exception. Although a search incident to arrest is a recognized exception to the warrant requirement, a strip search incident to arrest is held to a much higher standard.

The Nieves court held that the reasonable, articulable suspicion standard applies in the strip search incident to arrest context. Nieves, 383 Md. at 596. While strip searches for felony arrests may always be justifiable, strip searches following arrests for minor offenses are generally ‘found wanting’, unless the officer had information that would have led to a reasonable suspicion that the person was carrying weapons or contraband at the time of the arrest. Id. at 592. Nieves was arrested for traffic offenses that included driving on a suspended license, negligent driving, failure to control speed, and giving false accident information. The court found that a strip search following Nieves’ arrest was not reasonable because the nature of the traffic violations for which he was arrested failed to create a suspicion that he was carrying weapons or contraband. Id. at 596. The justification for the search of Nieves based on his prior drug offenses and the fact that he was driving a car whose owner was associated with drugs was also found lacking. The court held that allowing a strip search based on prior drug arrests would amount to allowing a search based on a person’s status, rather than an individualized assessment of the circumstances. Id. at 597.

In Paulino, the defendant was strip searched in public at the scene of his arrest. The police had reasonable suspicion to believe that Paulino possessed drugs and was hiding them in his buttocks, having been given that information by a confidential informant. 399 Md.at 345. Although there may have been suspicion for Paulino’s search, the Court held that "the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness." Paulino, Id. at 352. In determining reasonableness, the court balances the need for a strip search with the invasion of personal rights that in entails, considering the scope of the intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it was conducted. Id. at 356. The issue identified by the court in Paulino was not whether the police had a right to conduct the search, but whether considering the invasive nature of the search, an exigency existed to make it appropriate under the circumstances. Id. at 357. The state was unable to prove the existence of any exigent circumstances that would justify a public strip search. Id. at 360. The need for exigent circumstances may be lessened in Mr. Watkins’ case because his search, unlike Paulino’s, was conducted in a relatively reasonable environment.

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 Posted on February 03, 2009 in Criminal Defense

Maryland Criminal Attorney – Does a sentence of life without the possibility of parole for a 13 year old constitute cruel and unusual punishment and therefore violate the 8th Amendment to the Constitution? That is exactly the question that the United State’s Supreme Court may consider in a 20 year old case from Florida. There was an article about this case in the New York Times today explaining the basic facts as well as the possibility that the Supreme Court will hear the case. http://www.nytimes.com/2009/02/03/us/03bar.html?em.

Although the facts of the case are not technically relevant to the 8th Amendment issue, I think they are worth a brief description. The Defendant in the case, Joe Sullivan, was one of three boys who admitted to burglarizing a 72 year old Florida Woman’s home in 1989. Several hours after the burglary, someone entered the home and raped the 72 year old owner. At trial the woman could not identify him but after the court made the defendant repeat something that the rapist had sad to her she testified that "it’s been six months. It’s hard but it [ his voice] sounds similar". One of his co-defendants also testified against him but it is not clear from the Times’ story what exactly he testified to since he did not claim to have been present during the rape. Additionally, Mr. Sullivan’s attorney did not give an opening statement in the one day trial and his closing argument apparently lasted only a few minutes. The attorney was later disbarred and is still ineligible to practice in Florida. Biological evidence was recovered but was apparently destroyed prior to the advent of DNA evidence. The judge sentenced Mr. Sullivan to life without the possibility of parole and he has now served 20 years of that sentence. The Florida Court of Appeals just rejected a request to review the case and the case was appealed to the Supreme Court.

Although he Supreme Court has not officially agreed to hear the case, it seems probable that they will do so for two reasons. First, the Court has requested that the State of Florida respond to Mr. Sullivan’s petitioner as they chose not to when it was filed. It also seems likely that they will accept it in light of the Court’s rulings in several recent cases involving juveniles including one in which the Court struck down a death sentence for a juvenile on 8th Amendment grounds.

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 Posted on January 30, 2009 in Medical Malpractice

A Buffalo, New York jury has awarded a couple $845,000 in a medical malpractice case against two obstetricians, after a three week trial. The plaintiffs claimed that the woman had to have an emergency hysterectomy after she started bleeding heavily after giving birth to a healthy son. The plaintiffs argued that the doctors should have hastened the mother’s labor, which lasted 20 plus hours, to prevent the bleeding.

I have successfully handled a number of serious injury cases in Baltimore and other counties in Maryland. Many of those medical malpractice / medical negligence / medical error cases involve birth injuries. A recent case that settled for a substantial sum involved almost exactly the same set of facts. A woman gave birth to a healthy child, after which she experienced substantial vaginal bleeding. The hospital, however, did not timely address the situation and, as a result, she lost so much blood that her blood stopped clotting properly. This is called Disseminated Intravascular Coagulation ("DIC") or Consumptive Coagulopathy. She eventually underwent emergency surgery which saved her life, but during the surgery doctors had to remove her uterus. This was a classic case of a woman slipping through the cracks of a hospital. Everybody knew what was going on, but no one assumed responsibility for the matter. The tragedy of this was that the woman was unable have children again as a result.

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