Personal Injury Law Overview: Maryland
Personal Injury Law, also called Tort Law, has been around for hundreds of years. Much of what is now American law was developed from English laws which were brought over to the New World by the colonists. English and American courts follow what is known as the common law system. Common law means "[t]he body of law derived from judicial decisions, rather than from statutes or constitutions." Black's Law Dictionary, 313 (9th ed. 2009). Essentially, this means that courts not only have the ability to interpret laws passed by the legislature, they also have the power to create law. Common law relies heavily on the principle of stare decisis or precedent, where "a court must follow earlier judicial decisions when the same points arise again in litigation." Id. at 1537.
There are three major categories of tort law: negligence, strict liability, and intentional torts. The law in all these categories has been developed both by the judges through the common law and by the legislature through statutes. We will address each of these categories in turn.
The most common source types of personal injury cases are ones that involve negligence. In Maryland, there are four elements of a cause of action for negligence. A "plaintiff must show:
- That the defendant was under a duty to protect the plaintiff from injury,
- That the defendant breached that duty,
- That the plaintiff suffered actual injury or loss, and
- That the loss or injury proximately resulted from the defendant's breach of duty."
The first element that a plaintiff must establish in order to prove negligence is duty. A duty is the requirement of an person "to conform to a certain standard of conduct so as to protect the other [individual] from unreasonable risk of harm." Rosenblatt, 335 Md. at 76. Put another way, "[d]uty in negligence has been defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Ashburn v. Anne Arundel County, 306 Md. 617, 627 (1986) (internal quotations omitted) (citing Prosser and Keeton On Torts § 53 (W. Keeton 5th ed. 1984). "Absent a duty owed to the plaintiff, as established by the plaintiff, there can be no liability in negligence." Rhaney v. Umes, 388 Md. 585, 597 (2005). In determining if a duty is owed, one of the most important factors is foreseeability. Muthukumarana v. Montgomery County, 370 Md. 447, 511 (2002). That is, how foreseeable was it that the actions of the defendant would cause harm to the plaintiff. One's duty is not infinite, however. The law recognizes that "a duty must be limited to avoid liability for unreasonably remote consequences." Id. at 512.
While the law recognizes a duty to act with reasonable care, it does not typically recognize an affirmative duty to act to aid or protect another. If "a person is merely a passive observant, he ordinarily does not owe a duty to affirmatively aid or rescue another to prevent them from suffering harm, absent the creation of a special relationship that would justify imposing a duty to take affirmative action for the benefit of another." Warr v. JMGM Grp., 70 A.3d 347, 368 (Md. 2013). Thus, if you are walking down the street and see a person drowning in a lake, absent a special relationship, you are likely not under a legal duty to rescue them.
However, if you do choose to act to aid or rescue another, you are under an obligation to use reasonable care in doing so. Muthukumarana, 370 Md. at 482-83 (citing Restatement (Second) of Torts § 323 (1965)). Failure to use reasonable care can subject the rescuer to liability for damages from injuries the person being rescued incurs as a result of the rescuer's negligence. Id.
Once a duty has been established, the next element of negligence is breach. A breach of duty is defined as "the failure to act as the law obligates one to act." Black's Law Dictionary 214 (9th ed. 2009). In determining if there has been a breach it is important to understand that everyone is required to act with reasonable care, that is "when a person chooses to act, he owes a duty to exercise reasonable care so as not to expose others to unreasonable risks of harm." Warr v. JMGM Grp., 70 A.3d 347, 368 (Md. 2013). The measure of breach is typically the reasonably prudent person. A reasonably prudent person is "[a] hypothetical person used as a legal standard, especially to determine whether someone acted with negligence; specifically, a person who exercises the degree of attention, knowledge, intelligence, and the judgment that society requires of its members for the protection of their own and of others' interests." Black's Law Dictionary 1380 (9th ed. 2009). Basically, when determining breach, you look at if the defendant acted as a reasonably prudent person would under the same or similar circumstances. If the defendant's actions were unreasonable, that is he failed to use the level of care a reasonable person would, then the defendant breached his duty to the plaintiff.
The third element of negligence can be broken up into two parts, cause-in-fact and proximate cause. Cause-in-fact, also known as but-for causation, means "[t]he cause without which the event could not have occurred." Black's Law Dictionary 250 (9th ed. 2009) and deals with the "fundamental . . . inquiry of whether the defendant's conduct actually produced an injury." Peterson v. Underwood, 258 Md. 9, 16-17 (1970) (emphasis in original). Put another way, a court will determine cause-in-fact by asking, would the accident have occurred but-for the actions of the defendant? A defendant can still be held liable for negligence even where his conduct is not the sole cause.Atlantic Mutual Insurance Co. v. Kenney, 323 Md. 116, 127 (1991). As mentioned above, a person's duty is not infinite. The law recognizes that "a duty must be limited to avoid liability for unreasonably remote consequences."Muthukumarana, at 512. This is where proximate cause comes in to play.
Proximate cause is the second component of causation. It means a legally recognized cause, that is, a "cause that is legally sufficient to result in liability." Black's Law Dictionary 250 (9th ed. 2009). Thus, while it might be true that but-for a defendant's negligence plaintiff would not have been injured, there are factors that can prevent a defendant's liability from extending to every potential plaintiff. Peterson, 258 Md. at 16.
For example, in Bloom v. Good Humor Ice Cream Co., 179 Md. 384 (1941), an ice cream truck was parked on the west of the side of the street in Baltimore one summer day. Id. at 385. The driver, invited a young boy of 10, Bloom, to come buy some ice cream from him. Id. at 385-86. Bloom, who was on the east side of the street, crossed the street unharmed, purchased an item, and was returning to his side of the street when he was struck by an oncoming car. Id. Bloom suffered significant injuries and he, through his parents, brought suit against Good Humor Ice Cream Company ("Good Humor") seeking to recover damages. Id. The Baltimore City Court sustained a motion to dismiss the case brought by the defendants and Bloom appealed. The court addressed the issue of proximate cause stating "the universally accepted rule as to the proximate cause is that, unless an act, or omission of a duty, or both, are the direct and continuing cause of an injury, recovery will not be allowed." Id. at 387. The court continued, "[t]he negligent acts must continue through every event and occurrence, and itself be the natural and logical cause of the injury." Id. Proximate cause "must be the natural and probable consequence of the negligent act, unbroken by any intervening agency, and where the negligence of any one person is merely passive, and potential, while the negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and fixes the liability." Id. The court noted that there is no definitive rule on what constitutes too remote of a cause and that it usually depends on the facts and circumstances of the particular case at issue.Id. at 388. In holding Good Humor Ice Cream Company was not liable, the court stated that the accident occurred after Bloom had made his purchase and that there is no evidence Bloom should not have been aware of the danger of crossing the street, stating that the "act on the part of appellant [Bloom], and the approaching automobile, were the separate and intervening causes of the accident." Id.
The final element of negligence is damages. In order to recover, plaintiff typically must prove that he or she suffered some kind of harm, be it personal injury or property damage. If no harm is proven, then no recovery is possible. See, Peroti v. Williams, 258 Md. 663, 670 (1970) ("[A]ctual damages are a prerequisite for liability in a negligence cases, and nominal damages, or 'technical liability' do not exist.").
Types of Damages
In a personal injury case there are three main types of damages you can collect: economic damages, noneconomic damages, and punitive damages.
- Economic Damages: This defined under Maryland law as "loss of earnings and medical expenses" and includes both past and future medical expenses as well as past and future lost earnings. Md. Code Ann., Cts. & Jud. Proc. § 11-109 (LexisNexis 2015).
- Noneconomic Damages: Noneconomic damages includes "pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury." See id. § 11-108.
- Punitive Damages: Unlike economic and noneconomic damages, which are designed to compensate a plaintiff for his or her injuries, punitive damages are awarded to punish the defendant for bad behavior and deter such behavior in the future. Smith v. Gray Concrete Pipe Co., 267 Md. 149, 159 (1972).
2) Strict Liability
The second major category of tort law is strict liability. Strict liability means liability without fault, that is, "[l]iability does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe." Black's Law Dictionary 998 (9th ed 2009). This means that a plaintiff need not prove the defendant was negligent in order to recover damages. Because the burden on the defendant is so high, the doctrine is limited to particular circumstances. Two common areas of strict liability are abnormally dangerous activities and defective products.
Abnormally Dangerous Activities
Maryland courts have long recognized the doctrine of strict liability for dangerous activities on land that affects adjacent lands. The general rule, originating with the English case Rylands v. Fletcher, is stated as "the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings." Yommer v. McKenzie, 255 Md. 220, 223 (1969) (quoting Prosser, Torts (3d ed. 1964) § 77 at 522). Ryland invovled an overflowing reservoir which damaged the neighboring coal mine. Rosenblatt, 335 Md. at 69. The rule from Ryland is stated as "'the person who, for his own purposes, brings in his lands and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damages which is the natural consequences of its escape.'" Id. (quoting Fletcher v. Rylands, L.R. 1 Ex. 265, 279 (1866).
Maryland follows the definition of abnormally dangerous activity as set forth in the Restatement (Second) of Torts § 519. The court adopted this approach in Yommer in 1969. Section 519 states that "one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Rosenblatt, 335 Md. at 70 (internal quotations omitted). The Maryland rule does not require the hazard to escape the property in order to recover damages, but only that "there be harm to the person or property of another resulting from the abnormally dangerous activity." Id. The factors that a court takes into consideration include:
- "Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;
- Whether the gravity of the harm which may result from it is likely to be great;"
- Whether the risk cannot be eliminated by the exercise of reasonable care;
- Whether the activity is not a matter of common usage;
- Whether the activity is inappropriate to the place where it is carried on; and
- The value of the activity to the community."
Yommer, 255 Md. at 224.
Products Liability is an area of strict liability that specifically deals with defective products put onto the market. It was first adopted by the Maryland Court of Appeals in 1976 in the landmark case, Phipps v. General Motors Corp., 278 Md. 337 (1976). In that case, James Phipps and his wife were test driving a 1972 Pontiac when the accelerator stuck, causing the vehicle to greatly increase in speed and crash. Id. at 338-39. The Phipps brought suit alleging product defect, relying on theories of negligence, breach of warranty, and strict liability. Id. at 339. Prior to this case, Maryland had not adopted strict liability in product defect cases. Id. at 346.
The court in Phipps reasoned that strict liability is a "judicial determination that placing a defective product on the market which is unreasonably dangerous to a user or consumer is itself a negligent act sufficient to impose liability on the seller." Id. at 351. The court continued, "[p]roof of a defect in the product at the time it leaves the control of the seller implies fault on the part of the seller sufficient to justify imposing liability for injuries caused by the product. Where the seller supplies a defective and unreasonably dangerous product, the seller or someone employed by him has been at fault in designing or constructing the product." Id. at 352. The court went on to state that "there is no reason why a party injured by a defective and unreasonably dangerous product, which when placed on the market is impliedly represented as safe, should bear the loss of that injury when the seller of that product is in a better position to take precautions and protect against the defect." Id. at 352-53.
The court adopted § 402 of the Restatement (Second) of Torts as its standard. Thus, in Maryland, in order to prove strict liability, a plaintiff must show that:
- "The product was in a defective condition at the time it left the possession or control of the seller;
- That is was unreasonably dangerous to the user or consumer;
- That the defect was a cause of the injuries; and
- That the product was expected to and did reach the consumer without substantial change in its condition."
Id. at 344. There are three different ways in which a product defect can manifest under strict liability: a defect in the manufacturing process that renders the product unsafe, a flawed product design that makes a product unreasonably dangerous, or a failure to provide adequate warnings or instructions for use of the product. Hood v. Ryobi North America, Inc., 17 F. Supp.2d 448, 450 (D. Md. 1998).
3) Intentional Torts
The last major category of tort law is intentional torts. An intentional tort is "[a] tort committed by someone acting with general or specific intent." Black's Law Dictionary 1626 (9th ed. 2009). Assault, battery, false imprisonment, conversion, trespass, and intentional infliction of emotional distress are all examples of intentional torts.
The biggest difference between intentional torts and negligence is that there is no need to prove actual damages with intentional torts. In general, an intentional tort only requires that the defendant acted, with intent, and that action caused the plaintiff's harm. Moreover, the intent required is only the intention to do the action. The defendant need not intend the results of his actions. Nelson v. Carroll, 355 Md. 593, 600 (1999).
Contributory Negligence- A Defense
Contributory negligence is a legal defense to liability in negligence, strict liability, and intentional tort cases. It is a doctrine that has its origins in an English case, Butterfield v. Forrester. In that case Butterfield was riding his horse down a street in a reckless manner and, due to his carelessness, did not see and was injured by a pole Forrester had placed in the roadway while repair his house. The court held that "‘[o]ne person being in fault will not dispense with another's using ordinary care for himself.'" Coleman v. Soccer Ass'n of Columbia, 69 A.3d 1149, 1153 (Md. 2013) (quoting Butterfield v. Forrestor, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809)).
This doctrine was later adopted by Maryland courts in 1847 and remains the law of the land to this day. Contributory negligence requires that the defendant be 100% at fault for the plaintiff's injuries. If the plaintiff is even 1% negligent then the plaintiff is completely barred from recovering any damages.
- Last Clear Chance: The last clear chance doctrine is an exception to contributory negligence and states "that the negligence of a party suing for damages for an accident is irrelevant if the party being sued could have avoided the accident by reasonable care in the final moments before the accident."
Due to the harsh nature of this doctrine the majority of states today have adopted some form of comparative negligence. Comparative negligence assigns fault to the plaintiff and defendant in accordance with the amount of negligence each committed, if any.
For example, Veronica was speeding down Main Street. Betty failed to stop at a stop sign and hit Veronica. In a state with comparative negligence the jury would take into account both parties negligence and apportion fault accordingly. Let's say the jury decides Betty is 80% at fault for failing to stop at a stop sign and Veronica is 20% at fault for speeding. The jury then awards Veronica $10,000 in damages. Under the doctrine of comparative negligence, Veronica could still recover damages but her damages would be reduced by the percentage she was at fault. So Veronica would recover $8,000 instead of $10,000.
The states have adopted several different types of comparative negligence:
- Pure Comparative Negligence: Under this standard the plaintiff can recover damages even if he or she were more at fault than the defendant.
- Modified Comparative Negligence (Less than 50%): Under this standard the plaintiff's negligence must be less than the defendant's negligence. That is the defendant must be 51% liable for the accident or the plaintiff cannot recover.
- Modified Comparative Negligence (50% or less): Under this standard the plaintiff and defendant can be equally at fault for the accident and the plaintiff can still recover his or her damages. The plaintiff's award is reduced by the percentage he or she is at fault.