In order to keep you abreast of the recent developments in the law, we are reporting the substance of several current decisions of major import in the jurisdictions of Maryland, the District of Columbia, and Virginia

This material is being provided for your general information only, and is not a substitute for obtaining legal advice. The information provided is not given as legal advice nor in the course of an attorney-client relationship. You should always consult an attorney for advice about the specific circumstances of your case.

Recent Developments

in the Law

Jeffrey R. Schmieler, Esquire
Saunders & Schmieler, P.C.
8737 Colesville Road
Suite L-200
Silver Spring, Maryland 20910
(301) 588-7717
www.sslawfirm.com

© Saunders & Schmieler, P.C. 2002

MARYLAND COURT
OF APPEALS

Dismissal of Certiorari After Petition was Granted -- Jacobson v. Sol Levinson & Brothers, Inc809 A.2d 691 (October 15, 2002). Respondent, Sol Levinson & Bros. Inc. filed a motion for trial de novo in the district court. The Petitioner, Barry Jacobson, asserted that the appeal should be heard by the circuit court de novo. The district court denied the motion with respect to trial de novo in the district court, and ordered that an appeal de novo should be heard in the circuit court. The circuit court conducted the trial and ruled in favor of Sol Levinson.

The Court of Appeals, granted Jacobson's petition for writ of certiorari, but dismissed it as having been improvidently granted. According to the dissent, there was no basis for the dismissal. Once certiorari has been granted to consider an undisputed "cert" worthy issue, there must be a compelling reason not to address the case. The dissent believed that the petition should have been improvidently granted. A petition is appropriately improvidently granted "when certiorari has been granted to address a particular issue, there being no other 'cert' worthy issue, and briefing and argument have disclosed that the issue for which certiorari was granted is not, in fact, presented by the case, need not, or cannot, be reached on the merits." The dissent wrote that when the Court grants certiorari to review an issue that is admittedly "cert" worthy, something more is required of the Court than a desire to avoid making a decision.

Leasing Agents Not Liable for Lead Paint -- Dyer v. Otis Warren Real Estate Co. -- 810 A.2d 938 (November 8, 2002). A mother brought an action against a real estate broker on behalf of her daughter under the Consumer Protection Act and Lead Poisoning Prevention Act for injuries the daughter sustained as a result of living in a property leased out by the broker. The trial court found that neither law placed a duty on the leasing agent, whose sole responsibility was to provide a tenant for the landlord. The leasing agent would only be considered an owner if they held or controlled at least part of the property in question. Both the Maryland Court of Special Appeals and the Maryland Court of Appeals agreed.

In interpreting Maryland's Lead Poisoning Prevention Act, the Court of Appeals found that a leasing agent or real estate broker, who neither owned, held or controlled rental property was not an owner. The statute, read in its entirety, was not at all ambiguous as to its scope or reach. The court ruled that mere entitlement to a commission did not mean that the leasing agent maintained control over the property. There were no facts indicating that the leasing agent had the capability to comply with reporting requirements of the law. Furthermore, delivering certain documents to the tenant did not constitute controlling the interest to any property. Therefore, the decision of the lower court was affirmed.

MARYLAND COURT
OF SPECIAL APPEALS

-- Owens-Illinois Inc. v. John Gianotti 2002 WL 31422922 (October 30, 2002). A worker and his wife brought an action against asbestos manufacturers. Plaintiffs claimed damages for the husband's development of mesothelioma that resulted from asbestos exposure and, additionally, loss of consortium. The manufacturer filed a third-party complaint against the manufacturer of an asbestos-insulated boiler. The Circuit Court in Baltimore City entered judgment upon a jury verdict against the manufacturer, but reduced judgment by pro rata releases of adjudicated joint tortfeasors and a default judgment against the boiler manufacturer. The asbestos manufacturer appealed, and the husband and wife cross-appealed.

The Court of Special Appeals made several findings: the statutory cap on noneconomic damages did not apply and counsel's improper use of the word "cap" during closing argument did not require mistrial. The court also found that the trial judge properly interpreted the release signed by worker and wife.

In a matter of first impression, the court examined whether the common law rule prohibiting recovery for loss of consortium for an injury that occurred prior to marriage applied to the cancer that the husband developed. The court ruled that the worker and his wife could maintain a joint loss of consortium claim even though the husband had last been exposed to asbestos before he married his wife. In its decision, the court found that the common law should not be applied in a case where the illness could not have reasonably been detected at the time of marriage. Therefore, the lower court decision was affirmed.

Injuries to 87-year-old Not Necessarily Permanent -- Greater Metropolitan Orthopaedics v. Sue Ward -- 810 A.2d 534 (November 6, 2002). The personal representative of a deceased's patient's estate brought a medical malpractice action against the physician's association and hospital. The patient led an active and self-sufficient lifestyle before the suffering from a broken hip that necessitated surgery. He developed low blood pressure from bleeding after the surgery, suffered a stroke and other complications, and eventually died. At trial, the defendants preserved their objection to a video-tape of a day in the patient's after-surgery life, and also to the admissibility of the representative's opinion that the defendant's failure to properly treat the patient resulted in his stroke and later death. The plaintiff argued that her expert's testimony proved causation. The Circuit Court for Prince George's County entered judgment on a jury verdict for the plaintiff.

On appeal, the court noted that certain medical causation opinions were appropriately made only by experts. The court ruled that the alleged incontinence, and difficulties in seeing, speech, and swallowing after the stroke required such expert testimony. The representative's opinion on those issues did not qualify as expert testimony and were not sufficient to establish causation. The expert opined that there was a reasonable degree of medical certainty that the patient's injuries could have been prevented if the providers had intervened sooner, but did not opine as to whether the injuries were permanent. Therefore, there was insufficient evidence for the jury to award damages for permanent injuries.

The Court of Appeals also held that the trial court abused its discretion as a matter of law when it failed to exercise any discretion in ruling on defendant's motion for a new trial.

Merchant Liability for False Imprisonment -- Herrington v. Red Run Corp. --811 A.2d 894 (December 3, 2002). Plaintiffs were shopping at a local market and when they finished, entered a checkout line to pay for their groceries. The customers paid the cashier, but as they were leaving a security officer approached them and accused them of theft. The customers denied stealing anything; however, the security officer escorted them to an office in the back of the store for further investigation. The store manager had observed the customers' transaction at the checkout register via a computer system and believed that defendants might have tried to steal some items. Plaintiffs filed a complaint against the grocery store alleging false imprisonment. The Circuit Court for Baltimore City entered summary judgment for the defendants.

The customers appealed the decision, arguing that there was a genuine dispute as to material facts because they continuously professed to have done nothing wrong. The Court of Special Appeals held that the fact that the customers denied having stolen merchandise was irrelevant to the issue before the court. Rather, the pertinent material issue of fact disputed was not whether the merchandise was appropriated and in the possession of the customers when detained, but whether there was any complicity on the part of the customers in being undercharged by the cashier. Therefore, the store had probable cause to detain the customers, irrespective of the fact that they denied involvement.

Landlord Duty of Care to Nightclub Patron -- Smith v. Dodge Plaza, -- 811 A.2d 881 (December 3, 2002). Plaintiff was stabbed by a patron at a nightclub operated by a tenant who was leasing the property from defendant. The plaintiff alleged that the landlord was on notice of a dangerous condition on the premises, based on prior violent acts that had taken place there, and therefore breached its duty to protect patrons from assaults. The Circuit Court for Prince George's County, Maryland, granted summary judgment to the landlord and the patron subsequently appealed.

The appellate court found no evidence that the landlord had actual notice of any incident of criminal violence at the nightclub, and further held that two instances of violence against patrons were legally insufficient to have put the landlord on constructive notice of any danger. Assuming arguendo a jury issue as to constructive notice, the court stated that a landlord had no special duty to protect its tenants against crimes by third parties on its premises. Under the Matthews balancing approach, the appellate court struck the balance against imposing a duty on the landlord to have "controlled" the premises by evicting the tenant. A statement in the patron's security expert's affidavit, that it was customary for a landlord to insure that its tenants provide adequate security, was entirely conclusory and did not defeat summary judgment. Finally, even if the landlord owed a duty to patrons, it was not negligent for not having police officers on standby on the night of the stabbing.

Asbestos Liability -- Garlock v. Gallagher --2003 WL 132536 (January 17, 2003). The surviving spouses of a Baltimore pipe fitter and warehouse worker brought tort actions against various manufacturers of asbestos containing products, claiming that the men died as a result of their exposure to asbestos during their working lives. The actions were consolidated and the manufacturers filed cross claims for contribution. After a jury trial, the Circuit Court for Baltimore City entered judgment in favor of the surviving spouses.

Just before jury deliberations, one of the companies (Crane) agreed to dismiss its cross-claims against the other two companies--Garlock and Anchor. The trial court ruled that this dismissal was a nullity, but the Court of Special Appeals disagreed and allowed the dismissal, which gave them a slightly higher liability. The court also ruled that the jury's decision was supported by evidence and that it was not in the interest of the Court of Special Appeals to question findings of fact.

The Court of Special Appeals also examined the inaccuracy of the original jury verdict, yet found that it had been sufficiently corrected and that the error did not warrant a reversal of judgment. In addition, while cross-defendants had different interests than the primary defendants, the trial judge did not consider the interests specifically adverse enough to allow additional peremptory strikes. The court found that since all defendants essentially distributed the same product, the judge had a reasonable basis for his decision. Also, the defendants were not absolved of liability for their failure to know that its products were dangerous since "state of the art" technology existed that should have given them notice that a danger existed at the time the employees worked with them.

Finally, the trial court properly excluded portions of the videotaped deposition testimony of a defendant doctor whose opinion was used to determine whether the statutory cap would work to limit non-economic damages for a particular plaintiff. The court ruled that the $ 350,000 cap on non-economic damages did not apply, as both husbands' last exposure to asbestos had been well before July 1, 1986.

U.S. DISTRICT COURT FOR
THE DISTRICT OF
MARYLAND

Compensatory Damages Available in American Disabilities Act Employment Action-- Rhoads v. FDIC -- Not Reported (November 12, 2002). Plaintiff suffered from asthma and related migraine headaches -- conditions exacerbated by exposure to cigarette smoke. After an extended period of working from home, she refused to return to her former employer's workplace on her doctor's orders and was terminated. Plaintiff argued that despite a building wide smoking ban, the workplace was not sufficiently smoke-free to accommodate her condition.

The agency argued that, as a matter of law, plaintiff could not recover compensatory damages, punitive damages, or prejudgment interest and, therefore, she was not entitled to a jury trial. The United States District Court for the District of Maryland agreed only in part. While there was a split among the district courts about whether, in the employment context, compensatory damages were available to plaintiffs claiming a violation of the anti-retaliation provision of the American Disabilities Act, the United States Court of Appeals for the Fourth Circuit had noted that the remedies available in such cases were set forth in 42 U.S.C.S. § 12117. That statute specifically made the remedies available under Title VII of the Civil Rights Act of 1964 applicable to actions under the ADA. Since compensatory damages were available under Title VII, they were also available in ADA lawsuits. Punitive damages, however, were not available against the agency when it acted as a receiver for a bank. The court deferred ruling on the availability of prejudgment interest until such time, if at all, as that resolution became necessary. Finally, as the agency had conceded that, because plaintiff could receive compensatory damages, she had a right to a jury trial.

DISTRICT OF COLUMBIA
SUPERIOR COURT

Employment Law-- Termination Crawford v. BET Holdings II -- Not Reported (July 11, 2002). Plaintiff, Vice President and Chief Executive Officer of BET, sued the company for wrongful termination and civil conspiracy. Plaintiff alleged that his employment was terminated after he raised concerns about certain corporate conduct that was fraudulent and violated state and federal tax laws. In their motion to dismiss, the defendants claimed that as an at-will employee, plaintiff was subject to termination at any time and for any reason. They also made several arguments revolving around the plaintiff's failure to point to specific public policies that would qualify his claim for the exception to the at-will rule.

The court ruled that the complaint was specific enough with regards to statutory grounds for the public policy exception the plaintiff sought to invoke. The policy plaintiff relied on as anchored in the statute is premised on honest corporate accounting and business integrity.

The plaintiff also alleged that a conspiracy existed among all the defendants to participate in unlawful acts and that the plaintiff was wrongfully discharged in furtherance of that conspiracy. In responding to defendant's argument that the claim should be dismissed because it involved an internal dispute, the court ruled that the allegation could fall into an exception to the intra-corporate conspiracy doctrine. While this was a factual determination to be determined at trial, the allegations were sufficient to withstand the motion to dismiss.

Lastly, the court determined that the complaint made allegations specific enough to describe the defendant's alleged fraudulent conduct. For these reasons, the District of Columbia Superior Court therefore denied the defendant's motion to dismiss.

DISTRICT OF COLUMBIA
COURT OF APPEALS

Setoff Not Granted to Building Contractor in Breach of Contract Suit -- Hildreth Consulting v Knight -- 801 A.2d 967 (June 27, 2002). A contractor, the defendant, hired a supplier to provide concrete planks for construction of a parking garage. The contractor and supplier entered a written agreement providing that the contractor would pay 90 percent of the contract price when the planks were delivered and the balance one month later, and included a provision requiring that the contractor pay interest on unpaid balances. After the agreement was signed, the parties exchanged telephone calls and faxes in which they discussed delivery terms and payment. When the planks were delivered, the contractor noticed signs of "spalling" and "honeycombing" and, although it used the planks to construct the garage, it withheld full payment to recoup expenses it incurred to remedy problems caused by the condition of the planks. The supplier subsequently sued to recover the remaining balance on the contracts.

The trial court ruled for the plaintiffs for the balance remaining for the manufacturing of the planks, as well as the full amount for transportation, because they had fully performed under the contract. He also granted monthly interest of 1.5% pursuant to D.C. Code §15-108 on the amount remaining under the contract. The defendants appealed and counterclaimed, arguing that the trial judge erred in not granting a set-off and in awarding damages for interest.

The appellate court held that the trial court did not err in its finding that the contractor did not prove that the additional costs it incurred were caused by defects in the planks. They also agreed with the trial court in finding that the supplier retained the right to collect interest on unpaid balances because communications which the parties had after entering the written agreement modified but did not replace the agreement.

Hearsay Evidence--Dying Declarations Require Actual Knowledge of Impending Death - Bell v. United States -- 801 A.2d 117 (June 27, 2002). Defendants shot a victim in a drive-by shooting, which was followed by a high-speed police chase and additional shots fired at an officer. At the trial level, the judge admitted evidence of out-of-court statements made by the victim to a police officer while he was in the hospital. The statements specifically identified the defendants as the shooters. The victim's doctors gave the victim less than one percent chance to recover, but did not specifically alert the victim of his probable impending death. The statements were admitted as dying declarations, an exception to the hearsay rule.

On appeal, the District of Columbia Court of Appeals held that the trial judge erred in admitting this evidence since the identifications were allowed on a presumption of impending death, yet lacked factual support in the record. According to the court, a declarant must be specifically aware that he is dying. To infer that the victim knew he had little chance to live was incorrect since he was not able to physically view the extent of his injuries and no one told him about his slim chances of survival. Subsequently, the convictions of the defendants were overturned based on the incorrect legal standard applied at trial.

Additionally, the failure to disclose an investigating officer's disciplinary proceeding, connected to her investigation of defendants' vehicle, was not so serious that there would have been a reasonable probability that the suppressed evidence would have produced a different verdict. Nor was there a reasonable likelihood that disclosure would have had a significant effect on the outcome of the trial or produced a different result, requiring its disclosure under the Jencks Act. Furthermore, the withheld fact of the disciplinary proceeding, combined with the government's bad faith in withholding it, comprise, without more, a "statement" subject to Jencks Act sanctions.

Insurance Company's Duty to Defend -- Airline Pilots Assoc. v. Twin Cities Fire Insurance Co.-- 803 A.2d 1001 (July 25, 2002). The insured, a labor organization, was sued by a member for breaching its duty to represent him and for conspiring with his employer to permit his discharge and for intentional infliction of emotional distress. The defendant refused to represent the insured in the suit against his employer, who was granted summary judgment.

On appeal, the court held that the gist of the complaint concerned only inadequate representation, not any type of "humiliation" that was covered under the insurance policy. The insurer only had a duty to defend against covered claims that were actually pled and, although language existed in the ad damnum clause seeking damages for humiliation, it was not sufficient to give rise to an obligation to defend the insured. The policy only covered unintentional conduct and the plaintiff pled intentional infliction of emotional distress. The court noted that the law did not require the trial court to scour the complaint to find causes of action not specifically pled. Additionally, when interpreting the complaint under California law, the alleged facts did not support severe emotional distress, a necessary element of negligent infliction of emotional distress which would have been covered by the policy.

Torts--Spoliation of Evidence -- Herbin v. Hoeffel -- 806 A.2d 186 (August 29, 2002). A client of a public defender filed a complaint against his attorney for spoliation of evidence. The client claimed that the attorney destroyed documents that he needed in a subsequent criminal case against him in another state. He also alleged that the attorney had breached her duty of confidence by providing confidential information to the prosecuting attorneys in the other state. The lower court granted summary judgment for the attorney and dismissed the second complaint for failure to state a claim.

The appellate court found that the client had not shown evidence of a proximate relationship between the unavailability of the allegedly destroyed documents and an impairment of the insanity defense he planned to raise in his other criminal trial. Without such evidence, the client could not establish a necessary element of the tort of spoliation. The court also ruled that the client's federal claims were precluded by res judicata, but not his state law claims.

Regarding the allegations that the attorney breached client confidences and that she did so to assist in the client's prosecution, the court ruled that if such claims were true, the action would constitute serious misconduct on the part of an attorney. Given the high value placed on an attorney's duty of loyalty and to preserve client confidences, the court was unwilling to state that the conduct alleged, if true, was not extreme and outrageous. As a result summary judgment was not proper where the attorney may have breached confidentiality.

The appellate court affirmed the lower court's decision on the spoliation claim. However, the court reversed and remanded the dismissal of the client's complaint in Claim II for failure to state a claim insofar as it alleged intentional infliction of emotional distress that resulted from the attorney's alleged purposeful disclosure to prosecutors of information about her client that she was ethically bound to keep confidential.

Defamation -- Heard v. Johnson - 810 A.2d 871 (November 21, 2002). The congregation of a church voted to remove its pastor, but the pastor refused to resign and he sued the church's trustees. While that lawsuit was pending, a group in the church produced a manual documenting their grievances against the pastor, and the pastor claimed that the manual was defamatory. In response to the pastor's claims, the trustees filed a D.C. Super. Ct. R. Civ. P. 12(b) motion to dismiss, alleging that the trial court lacked subject matter jurisdiction because their actions were protected by the First Amendment. However, the trial court refused to dismiss the pastor's claims alleging defamation, invasion of privacy, and intentional infliction of emotional distress.

The DC Court of Appeals held that it did, in fact, have jurisdiction to hear the trustees' appeal and that although the pastor's lawsuit named each trustee individually, it was an action against the church, and the trustees could assert First Amendment immunity. Additionally, the court held that the manual had to be considered as a whole, and because the pastor failed to plead specific facts which showed that the trustees were not immune from suit, the trial court erred by denying the trustees' motion to dismiss the lawsuit.

Landlord/Tenant--Misallocation of the Burden of Proof -- Killingham v. D.C. Rental Housing Commission -- 810 A.2d 925 (November 27, 2002). After the resolution of a landlord and tenant dispute by the District of Columbia Rental Housing Commission, the tenant petitioned for a review arguing that the Commission wrongfully rejected her retaliation claim and ordered an inadequate rent refund. The tenant argued that the hearing examiner misallocated the burden of proof. The appellate court held that the Commission properly ruled on the appeal.

The court recognized that the hearing examiner improperly believed that the tenant was required to prove retaliation by clear and convincing evidence, where the burden should have been imposed upon the landlord. However, although the examiner misallocated the burden of proof in rejecting the retaliation claim, the examiner's painstaking review of the evidence and findings of fact made the error harmless. There was no error in the Commission's resolution of the case, computation of the rent refund, or thorough treatment of the tenant's motion for reconsideration.

The court rejected the tenant's argument that only a remand to the examiner for new findings of fact or conclusions of law could remedy the error. There was no reasonable likelihood that a remand for reconsideration in light of the proper standard would lead the examiner to a different result and therefore, the decision of the Commission was upheld.

In his concurring opinion, Associate Judge Schwelb noted that although he agreed with the outcome of the case, the misallocation of the burden of proof would ordinarily be grounds for a remand. However, since the hearing examiner would have likely reached the same conclusion had the burden not been shifted, the judge recognized that a remand of this particular case would be futile.

Wrongful Eviction and Award of Nominal Damages -- Henson v. Prue -- 810 A.2d 912 (November 27, 2002). Plaintiff sued his landlord for wrongful eviction when the owner changed the locks on his house after the tenant, having been given 90 days to vacate the premises, refused to leave. The court held that the owner wrongfully evicted the boarder. However, based on the trial court's finding that the plaintiff's testimony lacked credibility, the court awarded him zero damages. The appellate court affirmed the finding of a wrongful eviction by the owner and held that some damages, including separation from his clothes and other belongings, appeared to have been undisputed. However, the plaintiff acknowledged that the owner asked him to gather his property, but claimed that he had no place to store it and that his property would be on the street. The court found that an impartial trier of fact could reasonably find that any inconvenience suffered by the boarder was largely of his own making and, thus, award nominal damages. However, they refused to remand the case for such an award. According to the court, a remand would be a waste of resources and would serve no useful purpose.

UNITED STATES COURT OF
APPEALS, DISTRICT OF
COLUMBIA

Negligence--Presumption of Vicarious Liability Not Overcome -- Athridge v Rivas - 314 F.3d 474 (December 17, 2002). A 17-year old boy hired by his cousin to mow her lawn while she and her husband were on vacation took the keys to a car found inside the house. While on a joy-ride, the boy struck and seriously injured his friend. The plaintiffs sued the owners of the vehicle on a theory of vicarious liability--that the owners expressly or impliedly consented to the boy's use of the car.

The District Court granted summary judgment for the defendants, holding that they had overcome the statutory presumption of consent. However, the US Court of Appeals reversed, remanding the case to a jury since the defendants' evidence of non-consent was contradicted by the plaintiffs' evidence of implied consent. Because a genuine issue of material fact existed, the District Court erred in granting summary judgment in the matter.

Under the District of Columbia's Motor Vehicle Safety Responsibility Act ("MVSRA"), proof of ownership of a car is prima facie evidence that the driver operated the car with the owner's permission. This creates a rebuttable presumption that the owner consented to the use of the car, a powerful presumption that can only be overcome by "uncontradicted and conclusive evidence" of non consent. The defendant has the heavy burden of establishing non consent. See Gaither v. Myers, 404 F.2d 216, 218 (D.C. Cir.1968) (holding that the presumption of consent "will support a jury verdict and judgment for the plaintiff unless the defendant demonstrates nonconsent by 'uncontradicted' and 'conclusive' evidence.") In Athridge, the owners and the driver both asserted that no consent was given. While the evidence supported the defendants' claim that the boy drove the vehicle without the owner's consent, it was neither "uncontradicted" nor "conclusive," since the plaintiffs offered counter evidence that the owners may have given the boy consent to use the car.

While neither set of facts constituted conclusive evidence of implied consent or the lack thereof, they did raise a "genuine issue of material fact" regarding consent. The Court of Appeals ruled that, therefore, the District Court should have allowed a jury to weigh the evidence to determine whether or not the defendants' evidence was sufficient to overcome the statutory presumption of consent. The case was subsequently remanded for further proceedings to determine this factual issue.

For full text of the above opinions, click on www.courts.state.md.us, www.dcca.state.dc.us, www.uscourts.gov, or e-mail schmielerj@sslawfirm.com