“Woof!” – Gracie the Dog (trusted friend, avid squirrel chaser, and Pit Bull…or was she?)
“Succumbing to the allure of bad facts leads inevitably to the development of bad law.” – Judge Clayton Greene, in his dissent in Tracey v. Solesky
In April, the Court of Appeals, by a 4-3 margin, issued a decision in the case of Tracey v. Solesky that effectively designated all “pit bulls” and “cross-bred pit bulls” as inherently dangerous animals, and the Court determined that the owning, harboring or controlling of these dogs was an inherently dangerous activity. This resulted in the Court applying a strict liability standard against any person owning, harboring, or controlling pit bulls for any injuries stemming from a pit bull attack. This was the first instance where a Maryland Court established a breed-specific standard of liability for dog attacks. Liability stemming from owning, harboring, or controlling any non-pit bull dog remains subject to the old common law standard of whether the owner knew or should have known about the dog’s dangerous propensities. In addition to the breed-specific nature of the ruling, the significant consequence of the Court’s opinion was that it applied this strict liability standard, not to the owner of the dog, but to the owner’s landlord when the landlord knows or should know of the existence of a pit bull on the premises. 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
The mother of slain University of Virginia student Yeardley Love has filed a Wrongful Death lawsuit against her murderer, George Huguely, in the Circuit Court for Charlottesville, VA, according to multiple news outlets. I could not find a copy of the Complaint online, but it is likely that the Complaint will alternately allege that Huguely’s actions were intentional, done with willful indifference or concern for Love’s well-being, and/or failed to meet the standard of reasonable or ordinary care. The suit seeks $29.5 million in compensatory damages and $1 million in punitive damages.
In May 2010, the murder of University of Virginia student and Lacrosse player Yeardley Love became a national story. 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
To every action there is always an equal and opposite reaction.
– Sir Isaac Newton’s Third Law of Motion
In October, the Maryland Court of Appeals issued a very disappointing ruling in the lead paint case of Jackson v. Dackman Co., which nullified a long-standing Maryland statute that granted qualified immunity from lead paint liability to $17,500.00 for rental property owners who took legislatively mandated steps to ensure that their properties were lead free. The Court’s decision was clearly inspired by the opinion that the compensation amount in the immunity provision was too low, but it failed to give any regard for the fact that the immunity only applied to owners who had substantial measures to ensure that their properties were lead free, and that owners who had not acted reasonably to eliminate lead paint from their properties were entitled to no immunity. The action taken by the Court in deciding the Dackman case set off a firestorm of debate, and it was only a matter of time before property owners, legislators, and other interested entities reacted to the decision with new ideas to protect property owners who complied with lead paint abatement laws. Read more
The whole world is asleep
You can look at it and weep
Few things you find are worthwhile
And though I don’t ask for much
No material things to touch
Lord, protect my child
“Lord Protect my Child” – Bob Dylan
One of the few universally accepted social mores in our country is that we, as a society, have an interest and duty to protect our children. This idea of protection is not limited simply to protecting children from physical harm, but rather to promote their overall welfare and best interests. Not surprisingly, many laws have been enacted for the sole purpose of establishing safeguards to ensure that the best interests of a minor child are preserved when necessary. Because a minor child lacks the legal capacity to take full advantages of the court system, specific emphasis has been placed on making sure that the rights of minors are adequately protected when their interests require involvement in the legal system. 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
“Life is a journey, not a destination.” – Ralph Waldo Emerson
Deborah and Matt Lavine had apparently planned on trading in a cold, white Christmas for the warm beaches and picturesque waters of Key West, Florida. They booked their flights through American Airlines, which required a brief stop in Miami before taking the final, short flight to Key West. On December 21, 2008, the Lavines arrived at Regan Airport only to learn that their flight had been delayed, which caused concern that they would be unable to make their connecting flight out of Miami. Rather than changing their flight arrangements, they relied on American Airlines’ representation that they would be able to make their connector and that American would get them to Key West. When they touched down, the Lavines were told that they had only fifteen minutes to get to their flight, which if you have never been to Miami-Dade Airport, is no small task. The Lavines ran through the airport, suffering from the inhalation of construction debris and narrowly made it to the terminal only five minutes before the scheduled departing time and….they were not permitted to board. American could not provide another flight to Key West that evening, so it paid for the Lavines to spend the night in a Miami hotel and provided a free dinner and breakfast stipend. The next morning, the Lavines boarded a new flight to Key West, preparing to enjoy their vacation and forget all about the previous evening’s experience file a lawsuit against American Airlines. 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