Articles Posted in Maryland Courts

I was surprised at the media response to the University of Baltimore School of Law Dean Phillip J. Closius’ resignation/firing last week. The story was on the front page of the Baltimore Sun on Saturday. My blog post on this on Friday received a tremendous amount of traffic.

I really believe that Dean Closius and University of Baltimore School President Robert L. Bogomolny ought to sit down – with a mediator – and try to resolve their differences. Obviously, there was tension between these two men that ran deep. But they both want what’s best for the law school. They just need to get on the same page.

If Dean Closius returns as Dean to the University of Baltimore Law School, Miller & Zois will donate $10,000 to the school. I’m hoping other Closius supporters make a similar pledge.

The Maryland Daily Record reports that Dean Philip J. Closius has resigned as the University of Baltimore School of Law Dean, citing differences with University President Robert L. Bogomolny over the amount of law school revenue the university keeps.

Dean Closius came here with a reputation as a guy who was not particularly, how should I say, politically delicate. I think he left on bad terms with the University of Toledo College of Law after doing a great job moving that school up in the food chain. But am I shocked that he resigned and that President Bogomolny asked for Closius’ resignation? Yes.

I don’t follow the UB law gossip much. I had no idea that there was some battle over whether Steve Snyder would have the law school named after him. Is there a legal drama in Baltimore that does not involve Steve Snyder?

The Daily Record says Closius will take one year of administrative leave before returning to the UB law school as a full-time faculty member. I can’t imagine that it will come to pass.

I’ve been on the faculty at UB for 13 years. We have had more false starts at that school. “Here were go, we are rising up!” only to fall back to exactly where we were. Under Dean Closius, we really started making real, substantive, measurable progress.

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Judge Harrell opens the Maryland Court of Appeals’ unanimous opinion today like this:

[Jeremy] Bentham (my note: a name familiar to my ultraeducated readers and Lost fans) stated the case against retroactivity most succinctly when he likened it to ‘dog law.’ He was referring to the age-old method of training dogs by waiting until they do what they are to be forbidden to do, and then kicking them.” NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 41.02 (5th ed. 1992) [hereinafter SUTHERLAND]; see JEREMY BENTHAM, Truth versus Ashhurst, in 5 THE WORKS OF JEREMY BENTHAM 235 (1863) (“They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law?”).

Sadly, Judge Harrell did not bother to read “Eight Leaflets on Aspects of Bentham’s Thought and Life” which explains that Bentham completely changed his views on retroactive dog law in later writings. What? You think I just made that up? Fair enough. I’ve never read Bentham. In fact, I may not have heard of him until Lost and my knowledge may or may not be limited to a Wikipedia page. Seriously, I wish I had a more classical education. (Besides, I would never call out a Maryland judge with a “sadly,” because I’m not quite that brave.) Continue reading

Big win for lead paint plaintiffs today in Maryland Court of Appeals as the court ordered a new trial after a jury verdict for the landlord.

Jury instruction error in lead paint case not harmless error: new trial

In Janay v. Wlikowsky, the landlords’ attorney questioned the Plaintiff’s grandmother whether she had ever notified the landlord about flaking and peeling paint in Barksdale’s home. Although they do not point to the grandmother or any “contributory negligence” by the family (not that there can be contrib but you get the idea), the landlords’ attorney sought and got a jury instruction showing that a person’s failure to report flaking paint to the landlord is evidence of negligence. The grandmother’s negligence would not be because of the child anyway because she could be a substantial contributing cause to the harm and the child could still recover against the landlord.

After a defense verdict, the Maryland Court of Special Appeals agreed that this is a flawed jury instruction. But the CSA affirmed the trial court’s verdict because they found the error to be harmless.

The Maryland Court of Appeals rejected Plaintiff’s lead paint attorneys’ theories that a presumption of prejudice should be afforded to lead-poisoned children and their contention that a defective jury instruction by definition implicates due process. (Both parties presented novel but rejected theories. The defense argued that it somehow mattered that the landlord’s lawyer did not argue the grandmother’s negligence in closing.) The court listened to these arguments but did find that under these facts, the error is not harmless. I can’t think that was a hard call.  The jury’s thinking they can blame the grandmother creates a whole new lens to look at the case, no matter how they find.

It is easy to imply in a case like this that the Plaintiff’s attorney did not have the jury. Reading between the lines, I’d be willing to bet this jury would have given a defense verdict even without the error. But it is important to remember this is a matter of speculation. Maryland Rule 5-606 strictly limits a court’s ability to inquire post-verdict into “the sworn juror’s mental processes in connection with the verdict.” So you can’t “unbake” the jury verdict by asking them “Hey, would this have made a difference?” There will never be a tangible proof of prejudice because we cannot read the minds of the jurors.

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The Maryland Court of Special Appeals today considered the circumstances under which a landlord may be liable in dog bite injury claims.

This case involved a tenant in Towson who was breeding pit bulls. The CSA found that Baltimore County Circuit Court Judge Timothy J. Martin erred in granting the landlord summary judgment. Especially assigned Montgomery County Circuit Court Judge Ronald B. Rubin wrote a 7-page dissent. Ultimately, I think the Court of Appeals will see this one.

The court went through two leading Maryland dog bite cases involving dogs named Trouble and Rampage. I would think everyone would have notice of propensity with dogs with these names. When I’m nearing a pit bull named Rampage, I’m thinking it’s a matter of time before I feel the first bite.

The Plaintiffs’ lawyers, in this case, were Ober, Kaler, Grimes, & Shriver, a firm that usually finds itself on the other side of the “v”. State Farm’s in-house counsel (Cliff Patterson, from H. Barritt Peterson, Jr. & Associates, who is a good lawyer, represented the defendants.)

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The Maryland Court of Special Appeals said yesterday that Allstate is entitled to be as prejudiced as it wants to be.

And sorry if you clicked on this because the title baited you, the court did not mean Allstate can discriminate based on race, creed, or religion. Instead, the court said Allstate could discriminate against a slightly less protected class: people in the path of hurricanes along Maryland’s eastern seaboard. The long discriminated against yet unprotected class of rich people who own bay or oceanfront property in Calvert, St. Mary’s, Somerset, Talbot, Wicomico, and Worcester Counties, and portions of Anne Arundel, Charles, Dorchester, Prince George’s, and Queen Anne’s Counties. (Perhaps I oversimplify a bit.)

After a rash of hurricanes a few years ago, Allstate panicked and told the Maryland Insurance Commission that it would no longer offer insurance to some property owners on or near the Atlantic Ocean or the Chesapeake Bay. The insurance commissioner Ralph Tyler, who has since moved on to the FDA, agreed it was entitled to withdraw offering coverage to these property owners. Continue reading

The Maryland Court of Special Appeals decided on Thompson v. State Farm, a bad faith claim against State Farm that arose out of a car accident in Millersville, Maryland in Anne Arundel County. At issue is a common battleground in Maryland car accident cases: venue. A regular issue that is usually, but not always, decided in favor of; however, the trial judge sees it.

State Farm won the case, and the CSA sided with the trial judge. This was, however, anything but a garden variety venue case. This case involved an appeal of a Maryland Insurance Administration finding that State Farm had not committed bad faith, which made the venue issue that much more complex. As I talk about below, the court gets into the two bad faith statutes and begins what I don’t suspect will be the first appellate effort to sort through them.

Plaintiff’s lawyer was the well respected Debbie Potter from the Jaklitsch Law Group. Debbie was doing what excellent accident lawyers do, trying to get venue in a favorable jurisdiction.

Her argument was that venue was proper in Baltimore City because State Farm does business in Baltimore City and State Farm could not point to anyone who would be inconvenienced by deferring to the Plaintiff’s choice of venue. (Liability for the car accident was not in dispute so, arguably, the location of the accident or the domicile of the at-fault driver should not enter the calculus.)

In fact, for any bad faith case against State Farm, any State Farm witnesses would likely come from Owings Mills (where State Farm houses its adjusters). Obviously, the argument goes, Annapolis is further from Owings Mills than Baltimore City. Continue reading

The title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the core.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee’s view, the Court could effect that change by Rule, as opposed to judicial decision.
(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; and
(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well, thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs’ lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs’ are more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions will split off within the interest groups. Continue reading

Contributory negligence is about as dead of an idea as communism. Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that have maintained this antiquated notion that being 1% at fault for your own injuries should be a bar to your claim. It is pretty much intellectually indefensible, really.

One big impediment of changing this law in Maryland is a powerful plaintiffs’ lawyer. I will not name this lawyer. (One small hint: he owns a baseball team, has more money than everyone reading this blog post combined, and recently donated a truckload of money again to the University of Baltimore School of Law.)

Why would any plaintiffs’ attorney oppose comparative negligence? The reason is simple: when this issue gets brought up in the Maryland legislature, a legislator always says something to the effect of, “This is not a bad idea. But certainly joint and several liability is a bad idea, too. How about we get rid of both contributory negligence and joint and several liability?” Some states have done exactly this. Other states, like Maryland, have allowed defendants to make contribution claims to reduce the claim of inequity that one defendant should bear the entire loss for an accident that was caused by over one party. Continue reading