MARYLAND TRANSPORTATION RESOURCES
- 1.1 Statutes of Limitation
- 1.2 Negligent Entrustment, Hiring, Retention and Supervision
- 1.3 Course and Scope of Employment
- 1.4 Contributory Negligence
- 1.5 Contribution or Implied Indemnity from Third Parties
- 1.6 Exclusivity of Workers Compensation
- 1.7 Seat Belt and Helmet Use
- 1.8 Spoliation
- 2.1 Caps
- 2.2 Joint and Several Liability
- 2.3 Standard of Proof Required for Compensatory Damages
- 2.4 Collateral Source
- 2.5 Hedonic Damages
- 2.6 Life Care Plans
- 2.7 Wrongful Death Standing and Damages
- 2.8 Punitive Damages
- 2.9 Offers of Judgment
- 2.10 Biomechanics
- 2.11 Policy Limits Disclosure
- 2.12 May claimant recover general damages if they do not have their own auto-insurance? (“No pay to play”)
Statutes of Limitation
Three (3) Year Statute of Limitations. Md. Code Ann., Cts. & Jud. Proc. Art. § 5-101.
Three (3) Year Statute of Limitations. Md. Code Ann., Cts. & Jud. Proc. Art. § 5-101.
Three years from the date of denial of coverage, or the exhaustion of the tortfeasor’s coverage occurs. Pfeifer v. Phoenix Ins. Co., 189 Md. App. 675 (2010).
Breach of Contract
Three (3) Year Statute of Limitations. Md. Code Ann., Cts. & Jud. Proc. Art. § 5-101.
Minor Statute of Limitations
Three (3) years past eighteenth birthday for personal injury. Md. Code Ann., Cts. & Jud. Proc. Art. § 5-201
Negligent Entrustment, Hiring, Retention and Supervision
- Maryland recognizes the tort of Negligent Entrustment. To succeed on this claim, a plaintiff must prove that a vehicle owner knew or should have known that the use of the entrusted car by the entrustee would likely involve unreasonable risk of physical harm to himself or others due to the entrustee’s youth, inexperience or otherwise. Morrell v. Williams, 279 Md. 497 (1976).
- Negligent entrustment requires scienter and does not apply where the entruster was misinformed of the entrustee’s driving record or valid driver’s license. Morrell v. Williams, 279 Md. 497 (1976); U-Haul Co. v. Rutherford, 10 Md. App. 373 (1970). It has been applied where the owner of the vehicle knew of the driver’s poor traffic record (Curley v. General Valet Service, Inc., 270 Md. 248 (1973)); knew of the driver’s intemperate drinking (Snowhite v. State ex rel. Tennant, 243 Md. 291 (1966)) or knew of the driver’s reckless driving and accident record (Rounds v. Phillips, 166 Md. 151, 170 A. 532 (1933)).
Negligent Hiring, Training, Supervision & Retention
Maryland recognizes the torts of Negligent Hiring, Training, Supervision and Retention. To succeed on a claim of Negligent Hiring, Plaintiff must prove that: (1) her injury was caused by the tortious conduct of an employee, (2) that the employer knew or should have known that this employee was capable of inflicting harm or some type of harm, (3) that the employer failed to use proper care in selecting, supervising, training, or retaining that employee, and (4) that the employer’s breach of these duties was the proximate cause of the Plaintiff’s injuries. Asphalt Concrete Servs. v. Perry, 221 Md. App. 235 (2015) (citing Latty v. St. Joseph’s Soc. of the Sacred Heart, Inc., 198 Md. App. 254 (2011)).
The crux of a claim of negligent hiring, retention and/or training is that one of the defendant’s specific employees was unfit for his position, improperly supervised or trained, and that his unfitness caused the Plaintiff’s harm. See Economides v. Gay, 155 F. Supp.2d 485 (D Md. 2001). There must be a showing that the employer failed to use reasonable care in making inquiries about the potential employee or in supervising or training the employee.” Id. (quoting Gay v. United States, 739 F. Supp. 275 (D. Md. 1990).
Course and Scope of Employment
Standard of Review
- Generally, an employee’s tortious acts were in the scope of his employment if they were in furtherance of the employer’s business and were authorized by the employer. Fid. First Home Mortg. Co. v. Williams, 208 Md. App. 180 (2012).
- This must be proved by a preponderance of the evidence. Prince George’s County v. Morales, 230 Md. App. 699 (2016).
- Generally speaking, an employee’s tort is deemed to occur within the course of employment when: (1) the conduct in question must be of the same general nature as that authorized, or incidental to the conduct authorized. See Rusnack v. Giant Food, Inc., 26 Md. App. 250, 262 (1975).
- In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following factors are to be considered:
- Maryland courts have attempted to crystallize these factors by distinguishing between “detours” and frolics,” with the former being treated as within the scope of employment and the latter being considered a complete abandonment of it. Karangelen v. Snyder, 40 Md. App. 393, 396 (1978).
“(a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of departure from the normal method of accomplishing an authorized result; and (j) whether or not the act is seriously criminal." Id. See also Great Atlantic & Pacific Tea Co. v. Noppenberger, 171 Md. 378, 390 (1937).
“A variety of factors have been cited as bearing on the determination of whether a particular deviation amounts to a detour or a frolic, including the time and place of the deviation, its extent with relation to the prescribed route, whether its motivation is in part to serve the master, and whether it is the usual sort of deviation for servants on such a job." Id. (citing Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L.R.A. 161 (1893) ("When the servant's deviation from the strict course of his employment or duty is slight and not unusual, the court may determine as a matter of law that he is still executing the master's business, and if the deviation is very marked and unusual it may determine the contrary.").
Maryland is a Contributory Negligence State
- Maryland still recognizes the common law principle of contributory negligence. Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 685 (2013).
- “Contributory negligence is that degree of reasonable and ordinary care that a plaintiff fails to undertake in the face of an appreciable risk which cooperates with the defendant’s negligence in bringing about the plaintiff’s harm.” Board of County Comm’rs v. Bell Atlantic-Maryland, 346 Md. 160, 180 (1997)
- Maryland recognizes the affirmative defense of contributory negligence. The defendant must prove contributory negligence by a preponderance of the evidence in order to bar Plaintiff’s recovery. Id.
The Last Clear Chance Doctrine
Maryland recognizes the “last clear chance doctrine.” Pursuant to the jury instruction, a Plaintiff who is contributorily negligent may still recover if he/she was in a situation of helpless peril and the Defendant had an opportunity of which he or she was aware to avoid the injury yet failed to avoid it. Kassama v. Magat, 368 Md. 113 (2002).
The Sudden Emergency Doctrine
Maryland recognizes the sudden emergency doctrine – another affirmative defense. Armstrong v. Johnson Motor Lines, Inc., 12 Md. App. 491 (1971). A jury instruction on this doctrine is appropriate only when there is evidence that the person invoking the rule took any action in response to the emergency. Willis v. Ford, 211 Md. App. 708, 722-23 (2013). “A driver of a motor vehicle faced with a sudden and real emergency not created by the driver’s own conduct must exercise reasonable care for his or her own safety and for the safety of others. The reasonableness of the driver’s actions must be measured by the acts of other drivers of ordinary skill and judgment faced with a similar sudden and real emergency. The driver is not required to use the same coolness or accuracy of judgment required of a person not facing a sudden and real emergency.” (Maryland Civil Pattern Jury Instruction 18:7 Acts in Emergencies).
Contribution or Implied Indemnity from Third Parties
Maryland is a joint and several liability state. Each tortfeasor is responsible for 100% of judgment amount; however, each can seek contribution against a co-tortfeasor. MD Cts & Jud Pro Code § 3-1402 (2013).
- Maryland recognizes the principle of implied indemnity. Pulte Home Corp. v. Parex, Inc., 403 Md. 367, 382 (2008).
- For a Plaintiff to successfully claim implied indemnification, he must show that:
- A special relationship between the parties existed, usually contractual in nature, or from a course of conduct. Id.
- Yet a mere contractual relationship alone is not enough. There must be “unique special factors demonstrating that the parties intended that the would-be indemnitor bear the ultimate responsibility…or when there is a generally recognized special relationship between the parties.” Pulte Home Corp. v. Parex, Inc., 403 Md. 367, 382 (1982).
- A “generally recognized special relationship between the parties has not been elucidated yet through case law. However the Pulte court suggested the following relationship would qualify: where an employer is vicariously liable for the tort of a servant or independent contractor; where an innocent partner is held liable for the acts of another partner; or the owner of an automobile for the conduct of the driver. Id.
Accrual for Contribution and Implied Indemnity
A joint tort-feasor is not entitled to a money judgment for contribution until the joint tort-feasor pays or is ordered to pay the injured person. Tadjer v. Montgomery County, 61 Md. App. 492, 487 A.2d 658 (1985); See also MD Cts & Jud Pro Code § 3-1402(b) (2013).
Exclusivity of Workers Compensation
Workers’ Compensation and Tort Claims
If a Plaintiff’s injury arose out of an in the course of his employment, he is still generally able to seek damages in both workers’ compensation and tort. This typically arises in car accidents where the Plaintiff was an employee on the job and injured by someone else’s negligence. The liability of an employer/insurer under workers’ compensation law, however, is generally exclusive. There are exceptions. Md. Code Ann., Labor & Empl. Art. § 9-509.
Seat Belt and Helmet Use
Seat Belt Defense
Although Maryland is a contributory negligence jurisdiction, the seatbelt defense is specifically prohibited – in fact, it may not even be mentioned in a trial. Md. Code Ann., Transportation Art. § 22-412.3(h).
Although Maryland is a contributory negligence jurisdiction, a Defendant may not argue that the failure to wear a protective helmet constituted contributory negligence. Md. Code Ann., Transportation Art. § 21-1306(e)
Maryland Recognizes two types of Spoliation.
- The Maryland Civil Jury Instructions provide that a jury may or must draw an unfavorable inference for the destruction of or failure to preserve evidence based on the party’s intent. If the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If the destruction or failure to preserve the evidence was negligent, the jury may, but is not required to, infer that the evidence, if preserved, would have been unfavorable to that party. See MPJI-Cv 1:16
- An intentional or unexplained destruction of evidence gives rise to an inference that the evidence would have been unfavorable to his cause, but does not in itself amount to substantive proof of a fact essential to the opponent’s cause. Anderson v. Litzenberg, 115 Md. App. 549 (1997).
- A party requesting a jury instruction for spoliation must first demonstrate that the evidence actually existed. Solesky v. Tracey, 198 Md. App. 292 (2011)
- There is no separate cause of action for spoliation. Goin v. Shoppers Food Warehouse Corp., 166 Md. App. 611, cert. denied, 392 Md. 725 (2006).
General Damage Capsa) The non-economic damages (i.e. pain and suffering) cap for Maryland depends on the year that the cause of action accrued. For an accident occurring on or after 10/1/2017, the current cap is $845,000. Md. Code Ann., Cts. & Jud. Proc. Art. § 11-108. There is a different cap for wrongful death claims.
Joint and Several Liability
Maryland is a pure joint and several liability state. Md. Code Ann., Cts. & Jud. Proc. Art. § 3-1401. Each tortfeasor can seek contribution against a co-tortfeasor. Md. Code Ann., Cts. & Jud. Proc. Art. § 3-1402. If there is a partial settlement of a claim, the judgment against the non-settling tortfeasor(s) is reduced by the amount of the settlement. Md. Code Ann., Cts. & Jud. Proc. Art. § 3-1404.
Standard of Proof Required for Compensatory Damages
To prove compensatory damages, which include economic and non-economic damages, there must be proof of pecuniary loss.
Maryland’s Collateral Source Rule
The collateral source rule generally prohibits evidence of the amount of medical expenses that have been or will be paid by health insurance. Under this rule, evidence of disability and retirement benefits are also barred. This is generally only applicable in tort cases and does not act as an absolute bar to the admissibility of evidence showing third party payments. Eastern Shore Title Co. v. Ochse, 453 Md. 303, 341 (2017)
- Hedonic damages refer to damages for compensation for the loss of enjoyment or value of life. It is sometimes referred to as the lost intangible value of life. Those who advocate hedonics believe that life is inherently worth more than just the amount of money an individual can earn. Therefore, court awards for lost pay and for pain and suffering are inadequate to make the plaintiff whole.
- There are no Maryland cases awarding hedonic damages.
Life Care Plans
Life care plans are admissible in Maryland. However, like any other expert opinion, life care plans cannot be based upon speculation or unknown variables. See Kent Village Assocs. Joint Venture v. Smith, 104 Md. App. 507, 524 (1995) (Moreover, an expert witness may express an opinion that is based, in part, on hearsay if the hearsay is of a kind that is customarily relied on by experts in that particular calling.).
Wrongful Death Standing and Damages
- There are two categories of wrongful death claims in Maryland: survival actions and wrongful death actions. Benjamin v. Union Carbide Corp., 162 Md. App. 173, 178 (2005).
- Survival action are brought on behalf of the estate, in order to compensate the estate for losses it was forced to pay (medical expenses, burial, etc.) related to the death. It is also meant to compensate the estate for any losses suffered directly by the deceased. Id. See also Acands, Inc. v. Asner, 104 Md. App. 608, 657 A.2d 379 (1995).
- A wrongful death action, in contrast, is brought by the relatives of the victim and seeking recovery for their loss by virtue of the victim’s death. Id. This action arises only from the actual death of the victim, whereas survival actions arise from the tortious infliction of injury upon the victim. See also Wittel v. Baker, 10 Md. App. 531, 272 A.2d 57 (1970), cert. denied, 261 Md. 721261 Md. 725261 Md. 730 (1971).
- Any wrongful death action must be brought within three years after the death of the injured person. Knauer v. Johns-Manville Corp., 638 F. Supp. 1369 (D. Md. 1986).
- In survival actions, damages are measured in terms of the harm to the victim. This includes funeral and burial expenses, medical bills, property damage costs, and damages for the deceased person’s pain and suffering.
- In wrongful death actions, damages are measured in terms of harm to others from the loss of the victim. These include lost wages and other compensation, in addition to the loss of the deceased’s care and companionship.
- Primary beneficiaries include the surviving spouse, parents, and children of the deceased person. If a primary beneficiary is alive, he or she may file a wrongful death claim, a survival claim, or both. If a primary beneficiary brings either of these claims, any damages awarded in the claim are awarded solely to the primary beneficiaries. Md. Courts and Judicial Proceedings Code Ann. § 3-904. See also Md. Rule 15-1001.
- Secondary beneficiaries include the surviving siblings, cousins, nieces and nephews, and other relatives. If there are no primary beneficiaries or no primary beneficiary is willing to bring either type of claim to court, a secondary beneficiary may file on behalf of both the primary and secondary beneficiaries. Md. Courts an Judicial Proceedings Code Ann. § 3-904.
- Typically, the primary beneficiaries will file a wrongful death claim seeking damages for their own losses, while either a primary or secondary beneficiary will file a survival action seeking damages on behalf of the estate.
- Maryland "caps," or limits" non-economic damages in wrongful death claims at $2,000,000 in accordance with Md. Courts and Judicial Proceedings Code Ann. § 11-108. Non-economic damages are those that cannot be measured in terms of bills or receipts: losses like pain and suffering and loss of companionship. Id.
Punitive Damages are Recoverable in Maryland
- Under Maryland law, punitive damages are permitted in automobile negligence cases at the discretion of the court if actual malice is shown (i.e. an act characterized by "evil motive, intent to injure, ill will or fraud.") Komornik v. Sparks, 331 Md. 720 (1993).
- Punitive damages requires a finding of clear and convincing evidence. Owens-Illinois v. Zenobia, 325 Md. 420 (1992).
Statutory Cap on Punitive Damages
There is no cap on punitive damages in Maryland.
Punitive Damages are Insurable
Under Maryland law, a party may purchase liability insurance coverage for exemplary damages even if the damages are assessed as a result of criminal conduct. First Nat’l Bank v. Fid. & Deposit Co., 283 Md. 228 (1978); Med. Mut. Liab. Ins. Soc. v. Miller, 52 Md. App. 602 (1982).
Offers of Judgment
Maryland does not have offers of judgment.
- The Maryland Court of Appeals has not yet addressed the range of topics a biomechanical engineer is qualified to opine on.
- In Leake v. Johnson, 204 Md. App. 387 (2012), an expert in biomechanical engineering with a specialty in the forces necessary to create neck and spine injury in vehicular accidents, testified to the types of injuries sustained by the plaintiff and that those injuries were the result of various vehicular forces. He further testified as to the force necessary to cause the type, nature, and extent of the plaintiff’s injuries. Id.
Policy Limits Disclosure
Under Maryland law, a party involved in a motor vehicle accident is entitled to documentation of the applicable policy limits from an insurer after providing written notice of a claim and the date of the accident, name and address of the tortfeasor, the accident report and insurer’s claim number. If a death is involved, the written notice to the insurer shall also include a copy of the death certificate, letters of administration, and identification of beneficiaries. Md. Code Ann., Cts. & Jud. Proc. Art. § 10-1102.
May claimant recover general damages if they do not have their own auto-insurance? (“No pay to play”)
Yes. In Maryland, a claimant may recover general damages, even if they do not have auto-insurance.