Although we are based in Maryland, our attorneys are often retained to handle wrongful death cases all over the United States. Below is a detailed discussion on the status of the wrongful death law in Massachusetts:

Questions Presented: (1) Who can bring, and benefit from, a wrongful death action under Massachusetts law? (2) What damages can be recovered for wrongful death? (3) Is there a cap on non-economic damages?


(1) Who can bring, and benefit from, a wrongful death action under Massachusetts law?

The entire statutory scheme for wrongful death recovery in Massachusetts is contained in G.L. c. 229. The basic principles for liability for wrongful death are set forth in G.L. c. 229, § 2, which provides:

A person who (1) by his negligence causes the death of a person , or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had no resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty . . . which results in injury to a person that causes death, shall be liable [for] damages. . . .

G.L. c. 229, § 2. Thus, the statute allows recovery for death resulting from negligence, breach of warranty, or reckless or intentional conduct.

The proper party to bring a wrongful death suit under G.L. c. 229, § 2 is the administrator or executor of the decedent’s estate. G.L. c. 229, § 2. The personal representative brings the action to enforce the rights of the estate and the statutory beneficiaries. The beneficiaries may not sue in their own names for any damages resulting from wrongful death. See Stockdale v. Bird & Son, Inc., 399 Mass. 249 (1987). A wrongful death action may be brought against any person or corporation who causes the death of a person. G.L. c. 229, § 2.
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In Maryland, to establish a claim of fraudulent misrepresentation, a plaintiff must prove: (1) that a false representation was made, (2) that its falsity was either known or that the representation was made with such reckless disregard to the truth as to be equivalent to actual knowledge of falsity, (3) that the representation was made for the purpose of defrauding the plaintiff, (4) that the plaintiff had the right to, and did, reasonably rely on the representation, and would not have acted had the misrepresentation not been made, and (5) that the plaintiff suffered damage directly resulting from the misrepresentation. See Swinson v. Lords Landing Village Condo., 360 Md. 462, 476, 758 A.2d 1008, 1016 (2000) (citing Gittings v. Von Dorn, 136 Md. 10, 15-16, 109 A. 553, 553-54 (1920); Martens Chevrolet v. Seney, 292 Md. 328, 333, 439 A.2d 534, 537 (1982)).

In determining the amount of damages for fraudulent misrepresentation in Maryland, the Court of Appeals adopted the “flexibility theory” in Hinkle v. Rockville Motor Co., 262 Md. 502, 519, 278 A.2d 42, 47 (1971). In doing so the court stated, “[it] has never taken a rigid stand in adopting one theory of damages to the exclusion of all others but has rather employed a flexible approach.” This approach uses four rules as a guide for the proper measure of damages in cases of fraudulent misrepresentation, which include:

(1) If the defrauded party is content with the recovery of only the amount that he actually lost, his damages will be measured under that rule;

Lawyers who practice personal injury and accident law in Maryland and across the United States are often surprised to learn that the United States has a right to recover from third parties the reasonable value of medical care and pay that has been furnished or will be furnished in the future to accident victims. See Army Regulation 27-20
42 U.S.C. §§ 2651-53
In any case where the United States is authorized or required to pay for hospital, medical, surgical, or dental care and treatment under circumstances creating tort liability on a third person, the United States has an independent right to recover from the third person, or his insurer, the reasonable value of care and treatment furnished. The United States has a right to be subrogated to any claim that the injured person has against a third person to the extent of the reasonable care and treatment furnished. The United States may also require that the injured party assign his claim or cause of action against the third person to the extent of that right or claim.

If state law provides an alternative system of compensation or reimbursement for expenses of hospital, medical, surgical, or dental care or treatment under a policy of insurance, contract, medical, or hospital service agreement, or similar agreement, the United States is a third party beneficiary. The United States shall be subrogated to any right or claim the injured person has under the policy, contract, agreement, or arrangement to the extent of the reasonable value of care and treatment.
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Over the weekend, 20-year-old Johns Hopkins University student Nathan Krasnopoler was critically injured while riding his bicycle. According to the Baltimore Sun, Krasnopoler was riding in a designated bike lane on West University Parkway and W. 39Th Street when he was hit by a vehicle turning right. Krasnopoler is in a comma and the Baltimore City police have issued no charges or citations.

These facts are disturbingly similar to the John Yates wrongful death case I litigated last year. In that matter, Mr. Yates was riding on the far right when he was struck by a truck which left the scene. The police blamed Mr. Yates, but we were able to overturn that finding. The Yates case brought legislative change and a focus on cyclist rights in Baltimore City. This change included new designated bike lanes. Unfortunately, the Baltimore City Police Department is still demonstrating an apparent bias against cyclists by failing to even issue a citation in an instance of clear negligence.


For more information or a free consultation, please contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC. or call Steve Silverman at 410-385-2226.

Often times Maryland lawyers who represent injured victims are faced with the real-world problem of collecting on an otherwise valid claim. This arises in situations where the plaintiff/ victim is injured by a person who does not have any assets or insurance. When the defendant causes the injury while working, the experienced plaintiff’s attorney will immediately look to recover (or collect) from the employer or his insurance policy. This is known as the doctrine of Respondent Superior.

Respondent Superior comes from the idea that where one of two innocent persons must suffer for the wrong of a third, it should be the one who enabled the third to do the wrong. In order to hold the employer liable for the injuries to a third person through the negligence of the employee the Plaintiff must show (1) that the employer had control or right of control over the employee; (2) that the action was within the scope of the employee’s employment; (3) the action was in furtherance of the employer’s business. It might also be necessary to show that the employer knew, or should have known of the need to control the employee.

The general test for determining whether an act is with in the scope of employment was set forth in Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214, 92 A. 478, 479-80 (1914). “The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may be fairly said to have been authorized by him. By “authorized” is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.” (quoting from Wood on Master and Servant § 279 (1877)). Accord, e.g., Wood v. Abel, 268 Md. 214, 227, 300 A.2d 655, 671-672 (1973); Drug Fair v. Smith, 263 Md. 341, 350, 283 A.2d 392, 397 (1971); LePore v. Gulf Oil Corp., 237 Md. 591, 595, 207 A.2d 451, 453 (1965); Lewis v. Accelerated Express, 219 Md. 252, 255, 148 A.2d 783, 785 (1959); E.Coast Lines v. M. & C. C. of Balto., 190 Md. 256, 285, 58 A.2d 290, 303-04 (1948).
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To sustain an award of punitive damages in tort cases in the District of Columbia, the plaintiff must prove, by a preponderance of the evidence, that the defendant committed a tortious act, and by clear and convincing evidence that the act was accompanied by conduct and a state of mind evincing malice or its equivalent. Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938 (D.C.1995). The Standardized Civil Jury Instructions for the District of Columbia, No. 16.01[1], provides that the jury “may award punitive damages only if the plaintiff has proved with clear and convincing evidence:

(1) that the defendant acted with evil motive, actual malice, deliberate violence or oppression, or with intent to injure, or in willful disregard for the rights of the plaintiff; and

(2) that the defendant’s conduct itself was outrageous, grossly fraudulent, or reckless toward the safety of the plaintiff.”

Croley v. Republican Nat’l Comm., 759 A.2d 682, 695 (D.C.2000) (quoting Standardized Civil Jury Instructions for the District of Columbia, No. 16-1 (1998 ed.)); see also United Mine Workers of Am., Int’l v. Moore, 717 A.2d 332, 341 (D.C.1998).
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Intentional Infliction of Emotional Distress is very difficult to establish under Maryland personal injury law.

In order to prove a prima facie case of IIED in Maryland, the Plaintiff must show:

1. That the conduct was intentional or reckless;
2. The conduct is extreme and outrageous;
3. There is a causal connection between the wrongful conduct and the emotional distress;
4. The emotional distress is severe.

To meet the fourth element, the emotional distress must be “severely disabling,” such that “no reasonable man could be expected to endure it.” Being “upset” and “embarrassed” is not sufficient to show severe emotional distress. Evidence that the Plaintiff could continue with his normal life activities or that he did not seek professional treatment can show that the distress is not “severe.”

In Green v. Shoemaker, the Maryland Court of Appeals determined that a plaintiff cannot recover for emotional distress unless a “physical injury” results from the tort. Later, the court expanded a “physical injury” to include injuries “manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” The physical injury can be proven through evidence of an “external condition or by symptoms of a pathological or physiological state.” Also, it can be proven through evidence that indicates a “mental state.” However, medical testimony is not required in order to show mental distress.
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Many savvy corporations and other entities in Maryland are slyly slipping in arbitration clauses in agreements between parties. Many times these arbitration clauses force victims of personal injury to forgo their right to a jury trial and and undergo binding arbitration. Many times consumers do not even realize what they have agreed to because the arbitration clause is buried in the fine print of a document or contract.

History of Arbitration in Maryland:

In 1973, the Maryland Legislature adopted the Maryland Uniform Arbitration Act (hereinafter, “MUAA”). See MD. CODE ANN. CRTS. & JUD. PROC. §§ 3-201, et seq. (West 2010). Arbitration is the process whereby parties voluntarily agree to substitute a private tribunal (e.g. the arbitrators) for the public tribunal (e.g. the courts) otherwise available to them. Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103, 468 A.2d 91, 95 (1983). Parties may agree to arbitrate disputes pursuant to a contract between them, commonly known as an Arbitration Agreement. Id.

Matters which fall within the scope of an Arbitration Clause are subject to the procedures for arbitration set out in the agreement between the parties and the MUAA. “Where there is a broad arbitration clause, calling for the arbitration of any and all disputes arising out of the contract, all issues are arbitrable unless expressly and specifically excluded by the agreement.” Id. at 104. When the language of the agreement is ambiguous or unclear as to whether a matter falls within the scope of the Arbitration Clause, the Court of Appeals of Maryland has held that the initial determination of whether a matter is arbitrable or not, should be left to the arbitrator and not the courts. See id. at 105 (“Question of substantive arbitrability initially should be left to the decision of the arbitrator, not the courts.”).
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In a case eerily similar to the John Yates case, the Baltimore Sun is reporting that a Carrol County Cyclist was killed on Tuesday. Apparently John Martin Jr., 51, of New Windsor was riding his bike on Shepherds Mill road when a tractor-trailer driven by Anthony Edward Woodie made a right turn onto Route 75-directly in front of Mr. Martin.

Early indications are that Woodie is considered by police to be at fault for failing to yield to the cyclist while turning. This law firm is currently in litigation on behalf of the estate of John Yates who was killed in Baltimore City by a turning truck that also failed to yield to the cyclist.

As a result of our representation of the Yates and as advocates for cyclist’s rights, we are proud to have played a part in the Maryland General Assembly recently passing a new law helping to clarify the rights of cyclists on the roadways. Our sympathies go out to the entire Martin family.

Under relevant Maryland law, pedestrians generally have the right of way when in a crosswalk, and motorists generally have the right of way outside of a crosswalk. Maryland Transportation Article 21-502 requires a motorist to come to a stop when a pedestrian is crossing the roadway in a crosswalk. Additionally, motorists are required at intersections to look carefully ahead and keep and eye for pedestrians. Outside a crosswalk, motorists generally have the right of way over pedestrians, but still have a duty to avoid striking a pedestrian.

Every year, thousands of Marylanders are injured in pedestrian accidents. An experienced Maryland attorney, understands the law governing pedestrians on the road and can fight on their behalf to recover for injuries sustained in an accident.


For more information or a free consultation, please contact the Maryland personal injury lawyers of Silverman, Thompson, Slutkin & White, LLC. or contact Andrew G. Slutkin with further questions or inquiries at 410-385-2786

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