Maryland Injury Law Center

Tort lawyers rarely spend a ton of time worrying about whether their clients have indemnified the defendant for their own negligence because it rarely comes at issue. You rarely contract with the person causing you harm unless you are a patient and the world has not gone so mad as to allow doctors and hospitals to get patients to waive future malpractice claims against them. But a few times a year, a case will come across my desk where the injured victim signed something that arguably waives their right to bring a personal injury claim against the party responsible for their harm.

There are arguments on both sides of this. One side says adults should be able to agree by contract to whatever they want, including waiving tort claims. The other side points out that this is usually the small print on the contract between parties with unequal bargaining positions. Stated a little differently, if you and I go whitewater rafting, and I refuse to go based on some silly waiver language with the guy giving us the rafts, well, I don’t think you will ever ask me to go on a trip with you again. (There are also good moral hazard arguments by those who think consumers should be able to waive their tort rights.) I see both sides of the argument.

There is no such argument pending in Maryland’s appellate courts. The case law is clear that consumers can waive their rights to bring a personal injury claim by contract. The Maryland Court of Special Appeals this month in Rosen v. BJ’s Wholesale Club looked at a thinner slice of that question: can parents waive the rights of their minor children?

Here’s what happened. Plaintiffs’ take their three kids to BJ’s in Baltimore County (either Owings Mills or Hunt Valley I think). They park them in the BJ’s Kids Club. (I never even knew BJ’s had a kid’s club.) The kids’ club is a free babysitting service for kids to use while their parents shop. I can’t imagine it being all that nice but it reads well on paper: fixed playground structure with multiple levels, activities and entry points, murals, wall-mounted play stations, and movable play equipment. BJ’s had the parents sign a “If we hurt your kids you can’t sue us” waiver. I might paraphrase a bit.

I’m being a little whimsical in my telling of the facts, but the story turns serious. The parents’ five-year-old boy falls off a “Harry the Hippo” and falls, hitting his head at the play center and then fell approximately thirty-eight inches, striking his head on a concrete floor covered with a thin layer of carpet. The boy suffered life-threatening injuries. The boy went to the hospital. A CT scan found a large, acute epidural hematoma in the right temporal lobe of his brain. He was then transported to Johns Hopkins Hospital, where he underwent a craniectomy to relieve the fluid buildup in his brain.

(Post Aside: When I started reading this case, I was thinking the facts would be weak for the plaintiffs. But this is a good case on liability, right? You can’t have a concrete underneath a climbing area. If the kid fell off a chair or something on concrete, that would be one thing. But under a hippo thing that you climb on? That sounds like negligence to me.)

The issue is whether a parent may waive all future tort claims that his or her child may have. It was a case of first impression in Maryland. Baltimore County Circuit Court Judge Thomas J. Bollinger ruled in favor of BJ’s, finding that summary judgment was appropriate because there is no “alternative law for adults who sign exculpatory clauses for their children.” Plaintiffs appealed. Continue reading

We frequently get letters and phone calls from prisoners. It is hard not to discount these cases. It is not just the “People in Jail Are Less Likely to Be Credible” problem. It is also the “People Who Have Tons of Time on Their Hands Tend Chase Windmills” problem that is demonstrated by the 10 page letters that incarcerated people send to lawyers setting forth their grievances.

This bias leads lawyers to miss a lot of cases that are both lucrative and serve the interests of justice – Because we criminally mistreat our prisoners. But, because you have to kiss so many frogs to find a princess with prisoners, most lawyers just ignore the cases. We are probably guilty as charged on this one.

In fact, the only prisoner cases we have taken are cases where prisoners working on a road crew were hit by a prison owned or, better yet, a third party vehicle. Those are the facts of Goss v. Jennings, a “pedestrian” wrongful death case decided by the Maryland Court of Special Appeals last week.

While working on a litter pickup detail on the Capital Beltway (I-495) in Landover in Prince George’s County, a man was struck and killed by a dump truck. The plaintiffs filed a wrongful death/survival action against the driver, the Department of Corrections, and the Maryland State Highway Administration. The jury then returned a verdict against both the dump truck driver and the state of $2,025,000: $350,000 for the survival action and $1.675 million for the wrongful death action. Pursuant to the cap on non-economic damages, the trial court reduced the wrongful death awards to 150% of the wrongful death cap in 2007 of $680,000 ($1,020,000).

The state got out on a motion after the verdict, which was fine with plaintiffs because they had a defendant with insurance coverage and didn’t need to deal with the $200,000 cap. The truck driver and trucking company appealed. They made several accident specific arguments that were not interesting for our purposes. They also argued that the trial court erroneously imposed two statutory caps when only one cap applied. Continue reading

I guess the summer is over. The Maryland Court of Appeals is back in business, issuing several appellate opinions over the last few weeks. First on our hit list is Duckett v. Riley, a medical malpractice case filed in Prince George’s County in 2003.

New medical malpractice opinion

Anyway, every plaintiffs lawyer knows that when you file a personal injury lawsuit, you have to ask for a jury trial in a separate one line pleading. I can’t imagine leaving it off, but I always wonder in fear what would happen if I ever screwed up and left it off. Well, the plaintiff in Duckett v. Riley found out. The long and hard way.

Plaintiff filed a medical malpractice lawsuit but did not put in the request for a jury trial. But the plaintiff demonstrated an intent for a jury trial by checking the “Jury Trial Request” box on the civil information sheet. Defendants’ were not served with that information sheet. (This was – not for nothing – the first question asked of plaintiff’s counsel in oral arguments in the Court of Appeals.)

Defendant got the scheduling order and saw a jury trial had been set and objected. The motions’ judge in P.G. County agreed with the plaintiff. The case was then assigned to a trial judge – now retired Judge Thomas Smith – who had different ideas. Judge Smith concluded that the plaintiff had not properly requested a jury trial. He heard the case and entered a defense verdict. The Maryland Court of Special Appeals reversed in an unreported opinion, finding that the purpose of Maryland Rule 2-325 – to place the opposing party on notice that a jury trial has been demanded – had been met. Continue reading