Articles Posted in Premises Liability

An Ellicott City man was tragically killed this past weekend while participating in a “Tough Mudder” obstacle course.,0,3954904.story.

Based on what we know so far this case will almost certainly lead to a wrongful death claim against the operators of this race. Runners in these kinds of events certainly understand that they are subjecting themselves to certain risks by participating in them – twisted ankles, broken bones or even cardiac events come to mind – and probably even signed waivers to insulate the operators from liability from these known risks.

But drowning? It seems almost impossible to believe that the operators of this race would create an obstacle requiring people to traverse a plank over a body of muddy water deep enough to drown in apparently without warning the participants of the depth of the water. And if they were reckless enough to set up this kind of obstacle, it seems obvious that they should have stationed enough trained instructors in and around the obstacle to prevent such a forseeable occurrence. After all, everyone in the race is covered head to toe in mud as are the obstacles making them treacherously slippery. It is not only forseeable, it is all but certain that someone is going to slip or jump off of the obstacle into the water.

In the 2008 case of Allen v. Marriott, the Court of Special Appeals came down with a frigid decision for plaintiffs who are injured when falling on black ice. The Court of Appeals denied cert. which means the case is the current law in Maryland.

The facts of Allen v. Marriott are as follows:

David Allen and his wife were guests of a Marriott hotel from Feb. 3 -5. On the morning of Feb. 5, the parties checked out of the hotel. Mrs. Allen went to the hotel’s parking lot to retrieve their car, while Mr. Allen was checking out. She drove the car close to the front entrance of the hotel. Mr. Allen walked out of the main entrance, and then proceeded to walk along the (salted) sidewalk toward their vehicle. As Mr. Allen stepped off of the curb, pulling a wheelie suitcase, he slipped and fell on what turned out to be unseen “black ice.”

The issue the presented to the Court was whether a reasonable person under an objective standard, knowing what the Plaintiff knew, would have been aware of the risk and therefore assumed the risk.

In reaching its holding, the Court discussed the following:

The Maryland law on the defense of assumption of risk in cases involving slipping and falling on ice or snow is totally contained within the three decisions of Schroyer v. McNeal, ADM Partnership v. Martin, and Morgan State Univ. v. Walker. In all three cases, the Court of Appeals held that the plaintiffs, as a matter of law, were aware of and voluntarily assumed the risk, based on the circumstantial evidence of their surroundings.

• In Schroyer, the plaintiff injured herself when she walked out onto a parking lot covered with ice and snow. She was aware that ice and snow were slippery, and therefore was aware of the danger posed by an ice and snow covered parking lot. By voluntarily choosing to traverse it, albeit carefully, she intentionally exposed herself to a known risk.

• In ADM, the plaintiff was injured when she slipped and fell on an ice and snow-covered walkway as she returned to her vehicle. The Court of Appeals said that, although it had snowed some 19 hours earlier and the precipitation had ceased, ice and snow surrounded the building, particularly the parking lot directly in front of the building and the entrance walkway. The plaintiff was aware of the ice and unplowed snow surrounding the building, but she felt that she could safely enter the building. The Court stated that “there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice” is one of them. A person of normal intelligence would have understood the danger, therefore the issue is for the court.

• In Morgan State, the plaintiff went to visit her daughter on the campus of MSU several days after a heavy snowstorm. After driving across a snow and ice-covered parking lot, the plaintiff walked across the ice, fell, and fractured her leg. The Court of Appeals held that the plaintiff “knowingly and voluntarily walked across a snow and ice covered parking lot and injured herself, she assumed the risk of her injuries as a matter of law.” The Court reiterated that the danger of slipping on ice is one of the risks which any one of adult age must be taken to appreciate.
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A Georgia jury has awarded a Home Depot customer and his wife $1.5 million in a case arising from a forklift accident in a store. According to the lawsuit, the plaintiff suffered severe neck and spine injuries after a pallet of plywood fell 24 feet from a forklift. The wood hit a barricade that knocked the plaintiff over, trapping the plaintiff under the plywood. This caused the plaintiff to incur over $120,000 in medical expenses and have to stop working in construction. The verdict included $30,000 for loss of marital relations.

Over the years, Home Depot and other “big box” retailers have faced many lawsuits over what is called “sky shelving,” which involves storing stock above customers.

I successfully handled a negligence case just like this in Maryland, where a woman was injured when wood fell on her in a large home improvement store. The key to these cases is getting the policies and procedures of the store in order to show that the store violated its own policies and procedures.

A Florida jury has awarded $750,000 each to the parents of a young man who was strangled to death in a restaurant’s parking lot, in a negligent security case. Jurors decided that the management company that owns a McDonalds and the company that owns the property were negligent for not providing security on the morning of the man’s death. According to the plaintiffs, there were over 750 calls for service from the McDonald’s and the surrounding parking lot between 2001 and 2005. The calls were for juvenile disturbances, loitering and assaults. About 200 of the calls mentioned alcohol use and most were made between midnight and 5 a.m. on Friday nights into Saturday mornings and Saturday nights into Sunday mornings. The defense had argued that the types of calls did not indicate that a homicide was about to take place. A copy of the article regarding the case can be found here.

I have successfully handled many cases in Baltimore and other counties in Maryland against negligent property owners. Some are major slip and fall or trip and fall cases. Some have been negligent security cases. In such a case in Maryland, the law states that a landlord has a duty to exercise reasonable care for the safety of tenants and invitees. If a landlord knows or by the exercise of reasonable care should know that criminal activity against persons or property has occurred on the landlord’s property, the landlord has a duty to take reasonable measures to pro-tect tenants and invitees against these criminal activities. In determining whether the measures taken by the landlord were sufficient, the landlord’s acts can be measured only by the criminal activities occurring on the landlord’s property and of which the landlord knew or should have known and not by those criminal activities occurring generally in the surround¬ing neighborhood.

In other types of premises liability cases in Maryland, the responsibility of those who own or possess property to people injured on their property depends upon the standard of care owed to the injured person. The standard of care depends upon the injured person’s status on the property. There are generally four classes of people.

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.
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Homeowners insurance, depending upon the exact language, normally excludes intentional acts by insured that cause injury. A policy that excludes coverage for “damage which is either expected or intended from the standpoint of the insured,” has been interpreted as excluding coverage for results that were subjectively intended by insured’s act. Allstate Ins. Co. v. Sparks, 63 Md. App. 738, 742 (1985). Moreover, the court has interpreted “intent” within the insurance policy as, “…desires to cause consequences…or believes that such consequences are substantially certain to result from his conduct.” Id. at 744 (emphasis added). However, the court has distinguished “intentional” from “wanton,” in noting that “wanton” conduct is described as consequences probably certain to result. Id. (emphasis added). Under such analysis, homeowners insurance would cover for an insured’s wanton conduct causing injury to a trespasser.

A federal case, using Maryland law, discussed a policy excluding coverage for acts by the insured that “reasonably expected or intended to cause a loss.” The court stated the exclusion language applied to insured’s conduct of kicking in bathroom stall door that resulted in the door hitting the plaintiff and causing injuries. Blue Ridge Ins. Co. v. Puig, 64 F. Supp.2d 514 (1999). The court in Blue Ridge Ins. Co., distinguished the case with Allstate Ins. Co., on the fact that the insurance policy in Blue Ridge Ins. Co., excluded acts “reasonably expected…to cause a loss” as opposed to the language contained in the policy in Allstate Ins. Co. (excluding coverage for damage which is either expected or intended from the standpoint of the insured.)

Often times, their is a fine line between negligence and perceived intentional acts. This can mean the difference between insurance coverage of no insurance coverage. At Silverman, Thompson, Slutkin and White, our experienced Maryland personal injury lawyers have successfully walked this fine line on many occasions. For further information, please contact us.

A trespasser is classified as one who enters another’s property intentionally and without consent or privilege. The only duty owed to a trespasser is to “abstain from wilful or wanton misconduct.” Doehring v. Wagner, 562 A.2d 762, 767 (1989); Carroll v. Spencer, 204 Md. 387, 394 (1954) (emphasis added). A “wanton” act is one performed with reckless indifference to potentially injurious consequences. Doehring, 562 A.2d at 767; Wells v. Poland, 120 Md. App. 699, 719 (1998). Moreover, “wanton” conduct is that which is “extremely dangerous and outrageous,” with reckless disregard of others rights. Wells, 120 Md. App. at 719. However, although the above cases define “wanton,” the standard applied by the court to trigger liability to trespassers is higher. The majority of cases use such language as “conduct calculated to or reasonably expected to lead to injury of the trespasser.” Doehring, 562 A.2d at 762; Wells, 120 Md. App. at 721 (emphasis added). For example in Doehring, defendant placing chain across driveway to prevent motorcycles from accessing was not willful or wanton conduct, even though defendant was aware of prior use of driveway by motorcycles. Id.

Our firm recently represented the estate and parents of a minor who was shot and killed while trespassing onto the land of a police officer. Despite the difficult burdens placed upon the trespasser, we were able to prevail. Often, these types of cases will turn on disputed facts. Therefore, the attorney’s investigation and preparation is critical to a successful verdict or settlement.

For further information, please contact the Maryland personal injury lawyers at Silverman, Thompson, Slutkin & White.

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