Business owners achieved a victory in the Maryland legislature this month, as both the House Bill and Senate Bill introduced to establish dram shop liability were given unfavorable reports by legislative committees. Dram shop liability is a cause of action that can be asserted by plaintiffs who allege that they were injured as a result of an establishment’s sale of alcohol. The bill introduced in the Maryland legislature would have allowed for civil actions against establishments or their employees if 1) the defendant knew or should have known that a customer was visibly under the influence of alcoholic beverages; 2) the defendant could have foreseen that the customer might attempt to drive a motor vehicle; 3) the customer negligently drove a motor vehicle; and 4) the customer’s negligent driving proximately caused the damages claimed in the action.
Maryland courts have rejected attempts to assert dram shop liability, instead using a theory of premises liability to hold establishments liable in certain circumstances. E.g. Troxel v. Iguana Cantina, LLC, 201 Md. App. 476, 29 A.3d 1038 (2011). However, premises liability applies to acts or omissions on property that is under the defendant’s control. Dram shop liability seeks to hold business owners liable when an intoxicated customer negligently injures someone after leaving the premises that the business owner controls. The bills introduced in Maryland this legislative session would have allowed for dram shop liability only when an intoxicated driver caused the alleged damages. However, it is easy to see how that liability could be extended through future legislation to include such things as off-premises assaults, liability for hosts of private parties, or even serving the “habitually intoxicated” as some states do. Dram shop liability, a favorite of the plaintiffs’ bar, is an attempt to shift blame from the responsible tortfeasor to a business with “deep pockets.” While this bill is likely to be reintroduced next year, business owners are safe from such claims for now.
Traditionally, personal injury claims have generally consisted of a plaintiff seeking damages for expenses and “pain and suffering” relating to physical injuries sustained as a result of an accident. Emotional distress is an element of a plaintiff’s pain and suffering, but is not, in and of itself, a separate and distinct claim. There seems to be a recent rise in the number of claims that are alleging specific emotional or psychological damages in personal injury claims, which if backed up by expert testimony could add substantial value to a plaintiff’s claim. Diagnoses of Post-Traumatic Stress Disorder or generalized anxiety resulting from an accident can be difficult to definitively contest from a defense perspective and, at the very least, will require a defendant and insurer to retain a competing expert to assess the validity of such a diagnosis. Therefore, it is essential that insurers and defense attorneys be aware of the limitations that a plaintiff faces in trying to introduce such claims, the evidence that can be used to support them, and the potentially difficult trial strategy decisions that a defendant may fact in light of such claims. Historically, such emotional injury claims could be made only if caused by the physical impact of the accident, but that has not stopped plaintiffs from pursuing such damages that may resulted from actions unrelated to the accidents themselves, particularly the conduct and behavior of the defendant. Evidence of potentially heinous conduct by a defendant that has no bearing on the cause of an accident could still have a very negative effect on a jury’s decision. The potential prejudice to a defendant has not gone unnoticed by the Maryland courts, and recent a recent Court of Special Appeals decision has confirmed that Maryland does not allow emotional distress claims that arise apart from the underlying accident itself.
In Alban v. Fiels, 61 A.3d 867 (Md. App. 2013), Michael Fiels caused an auto accident when he veered across the center line of traffic and collided with a pickup truck being occupied by Mr. and Mrs. Alban. At trial, witnesses were prepared to testify that Mr. Fiels left the scene of the accident and proceeded down the road. However, he encountered a dead end and, therefore, had to turn around and drive past the Albans’ vehicle in order to continue fleeing the scene. The witnesses would have further testified that Mr. Fiels laughed at the Albans as he drove past them the second time. The court opinion indicated that the Albans were taken to University of Maryland Shock Trauma and released. Their physical injuries were apparently minor. Notwithstanding the lack of significant physical injury, the Albans filed a lawsuit against Fiels alleging psychological injuries and emotional distress, including crying, anxiety, and sleeplessness. Their Complaint contained a count labeled “Intentional Acts of Outrage,” which asserted that Fiels fleeing and apparent laughter caused them to sustain severe emotional trauma, and sought $1,000,000 in damages resulting from his intentional conduct. Read more
It is widely accepted that demonstrative evidence, such as photographs can make a larger impression on a jury than testimony. In essence, people respond to evidence that they can visualize. In litigation, it is the attorney’s task to provide context to the jury about what they are seeing and why it is important. In no type of case can photographs be more beneficial than in automobile accident cases. Plaintiff’s attorneys often offer photographs showing extensive property damage to vehicles involved in an accident. Alternatively, when the damage involved in an automobile accident is relatively minimal, defense attorneys routinely use vehicle photos to suggest to the jury that serious injuries could not have been caused by an accident involving such minimal property damage. As much as it is common practice in auto tort cases to offer photographs of vehicle damage, it is equally common that the movant will face an objection by the opposing party, who will argue that the photographs are prejudicial to their client. When an objection is made, it is then up to the trial judge to determine whether the photographs can be admitted.
While there is little doubt that photographs of vehicles are relevant in auto tort case, if for no other reason to assist the jury in visualizing the nature of the accident itself, there may be instances where the trial judge will determine that the photographs cause more prejudice to the opposing party than they offer in probative value. Several years ago, the Maryland Court of Appeals reaffirmed that whether photographs of vehicle damage should be admitted is left to the sound discretion of the trial judge. Mason v. Lynch, 388 Md. 37 (2005). In Mason, the Court upheld a trial court’s admission of vehicle photographs tending to show minimal damage, which the Plaintiff argued caused the jury to return a verdict of $0. In doing so, the Court of Appeals reiterated that such photographs have relevance and specifically rejected the notion that expert testimony proffering a correlation between the photographs and an injury (or lack thereof) was necessary. It concluded: “That there may be some automobile accidents, in which very minor impacts lead to serious personal injuries, and vice versa, does not mean that evidence concerning the impact is irrelevant to the extent of the injuries. Relevancy under [MD Rule 5-401] involves probabilities; complete certainty is not ordinarily required.”
Because the Court of Appeals in Mason specifically reaffirmed that vehicle damage photos are relevant and it upheld their admission, it is often forgotten that the Court’s ultimate holding was that the admission of photographs was within the sound discretion of the trial court, and will not be overturned unless there was an abuse of discretion. In fact, the Court made it a point to state that it will not only be very rare for an appellate court to reverse a trial court’s admission of photographs, but that it would also be rare to reverse a trial court’s refusal to admit photographs. Attorneys, then, should not take for granted that their photographs will be admitted by a trial court. In particular, in most State Court cases, the attorney will not know their trial judge until only days before the trial. Accordingly, if the attorney intends to make “no damage” photos an essential element of his/her argument, then it may benefit the attorney to utilize expert testimony. Read more
“All of Civility depends on being able to contain the rage of individuals.”
Joshua Lederberg, Scientist (1958 Nobel Prize in Physiology)
The term “road rage” has become such a part of the American lexicon that it has sparked spinoff words, such as “air rage.” The extent to which such a phenomenon exists as a psychological or sociological concept is open for debate, but regardless, when someone behind the wheel of a car loses his or her cool in a very profound way, bad things can happen.
In 2005, Marjorie Hendrix and Charles Burns were involved in what, at first glance, was a fairly common type of automobile accidnt: Ms. Hendrix, proceeding through an intersection with a green light, was struck by a vehicle driven by Mr. Burns, which had been traveling in a perpendicular direction and traveled through a red light. The plot thickens when it is discovered that Mr. Burns was under the influence of alcohol at the time of the occurrence and had a history of substance abuse, a criminal record, and driving violations. It also turns out that the reason that Mr. Burns drove through the red light was attributed to being in a fit of “road rage” that developed from an earlier incidend with another driver, whom he was apparently pursuing at the time of the accident. Ms. Hendrix file a lawsuit alleging negligence and battery against Mr. Burns and alleging negligent entrustment against Burns’ wife, who was the owner of the vehicle.
Prior to trial, the court granted summary judgment in favor of Mr. Burns on the battery charge, finding that there was no intent by Mr. Burns to strike Ms. Hendrix’s vehicle, which was a required element of battery. With the battery count out of the way, Burns’ defense team made a very wise decision: Mr. and Mrs. Burns admitted liability on the negligence counts, then moved the Court in limine to exclude Ms. Hendrix from presenting any evidence of Mr. Burns’ intoxication, his “road rage” incident, his attempt to flee the scene, or his prior unflattering history. Had the jury been permitted to hear this evidence, despite liability already having been established, it would have created the possibility that the jury’s award be less of an effort to fairly compensate Ms. Hendrix and more of an effort to penalize Mr. Burns. The Court agreed and precluded the testimony. Read more
I read on Profootballtalk.com today that the Estate of former Cincinnati Bengal Wide Receiver Chris Henry has filed a wrongful death lawsuit against his ex-fiancee, Loleini Tonga, as a result of the December 16, 2009 automobile accident that took his life. If you are a football fan like I am, the name Chris Henry will immediately cause you to shake your head: the classic cautionary tale of a young man who had so much promise in life only to be sidetracked time and time again by his personal problems. Henry was a talented player at West Virginia University, but he was drafted lower than his talent would have dictated because of character concerns relating to both on and off the field conduct. His career as a Cincinnati Bengal began in 2005 with promise, but was soon derailed by multiple run-ins with the law, which led to multiple NFL-imposed suspensions and his release by the Bengals in early 2008. After his release, Henry seemed to turn his life around, ultimately being given a second chance by the Bengals to start the 2008 season. While his 2008 and 2009 statistics were fairly pedestrian, the larger accomplishment was that Henry had stayed out of trouble and seemingly turned a corner in his life. Read more
Last spring, Governor O’Malley signed into law new legislation that requires insurers to disclose policy limits information to claimants involved in motor vehicle accidents under certain circumstances prior to litigation being initiated. It is important to note that the new law only applies to claims involving motor vehicle accidents. The new law, which is codified in the Maryland Courts and Judicial Proceedings Article, §§10-1101 through 10-1105, took effect on October 1, 2011, but will only apply prospectively to claims filed with an insurer on or after the effective date of the new law. Now that the law is in effect, insurers need to be familiar with the new law and understand the circumstances under which they will be obligated to make pre-litigation disclosures. Read more