Articles Posted in Unsafe Premises

In Maryland, plaintiffs in personal injury cases need to prove four things to be successful:  the defendant had a duty of care; the defendant breached that duty through an act or an omission; the defendant’s breach was the proximate cause of the plaintiff’s injuries; and real damages were sustained. These cases, also called tort cases, are separate from contract cases, in which a party can sue another party for breaching a contract. Sometimes, however, a Maryland resident is injured because of the negligent actions of another person, with whom they contracted. This area of law can become difficult to figure out.

For example, take the facts of a recent appellate case. According to the court’s written opinion, the plaintiffs, a couple, entered into a construction contract in 2009 with the defendant contractor to build a new house. Shortly after the house was finished, the plaintiffs discovered leaks in the doors, which allowed rainwater to get into the house. The contractors fixed the leaks as they were discovered but did not look for mold. Four years later, the plaintiffs and their four children, living in the house, experienced medical symptoms and brought in an inspector, who discovered mold in the basement below where the leaks had occurred. In addition, the doors were still leaking. The contractor tried but failed to fix these leaks and remediate the mold, applying anti-microbial solution and attempting to clean mold where it was found, but it did not look for additional mold. Later, mold was discovered in the drywall of the house, and the contractor again attempted to deal with it, although the mold continued to grow. Finally, the plaintiffs and their children abandoned the home due to the mold and the resulting medical symptoms and sued the contractor in tort for the injuries that they sustained.

Maryland law allows plaintiffs to bring tort claims against defendants with which they contracted, as long as the damages sustained are not purely economic and based upon contractual duties. For example, the plaintiffs could not bring a tort claim against the defendant contractor for failing to build the fence properly and ask for damages in the amount that it would cost to fix the fence. That case would have to be handled through a contract claim because the damages are purely economic and only come from the contract in which the defendant agreed to fix the fence. In contrast, the plaintiffs here would be able to bring suit because they suffered real medical injuries and symptoms from the mold, and the defendants were negligent in failing to find and clean the mold.

A Maryland landlord cannot ensure the safety of its residents, but it does have a duty to take reasonable security measures. In a recent case before a state appellate court, the court considered the extent of a condominium’s responsibility to protect its residents.

The Facts

According to the court’s opinion, the plaintiff was a new resident at a condo in downtown Atlanta. The declarations for the condominium stated that it was not responsible for providing security to residents. However, the plaintiff claimed the association provided what he considered to be security measures, such as security gates, and that these features contributed to him deciding to purchase the property.

Evidently, a security gate outside the property required a key fob for access, which he was told would be provided by the defendant property management company. More than two weeks after closing on the property, he was given a fob, but he could not get the fob to open the vehicle-access gate. The plaintiff contacted the company on multiple occasions. As he was attempting to resolve the issue with the key fob, about a month after he moved in, he was the victim of a violent attack on the sidewalk outside of his condominium complex. He had arrived home around 2:00 a.m. with his girlfriend, and after not being able to enter through the gate, and decided to park on the street. He got out of his car, and was stabbed three times in an attempted robbery.

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Earlier last month, a Maryland jury awarded a man over $21 million after he was severely injured and permanently paralyzed in a workplace accident at a Pepco plant in Montgomery County. According to a report by the Washington Post, the man was working high up in the air on some scaffolding when he was struck by a transformer. The force of the collision sent the man eight feet into the air.Upon landing, the man snapped his spine, paralyzing him from the neck down. In addition to his paralysis, the man also received burns over 10% of his body because the transformer—which the worker had been told was discharged – was still powered on. The man sued Pepco for negligence.

The trial was not focused around whether Pepco was negligent. In fact, Pepco admitted its negligence. The only trial issue for the jury to determine was the amount of damages that would be appropriate for Pepco to pay out.

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A series of lawsuits brought by hospital technicians accuses the hospital where they worked of failing to maintain adequate shielding around its CT scan machine. The plaintiffs, in five individual lawsuits, allege that radiation exposure caused a variety of injuries and will require them to undergo cancer screenings for the rest of their lives. Two of the plaintiffs operated the CT scanner while pregnant and have brought claims on behalf of their children. The lawsuit names the company that operates the hospital, along with the engineering and architecture firms that built the addition housing the CT scanner, as defendants.

A computed tomography (CT) scanning machine rotates around a patient, using x-ray beams to create a cross-section image of the patient’s body. The process typically takes only a few minutes, so a patient’s exposure to dangerous radiation is minimal. Technicians who operate the scanners, however, could face prolonged exposure and associated health risks. Lead shielding in the walls surrounding a scanner is a standard method of protecting technicians from radiation. The technicians set up the scanner with the patient, then leave the room while the scanner is in operation.

Methodist Medical Center, located in Oak Ridge, Tennessee, opened a new emergency department building in 2006. This building included a facility for CT scanning. The plaintiffs claim that the room housing the CT scanner did not have sufficient lead shielding, resulting in dangerous levels of exposure to radiation over a seven-year period. All five plaintiffs claim that they are suffering from health problems related to radiation exposure, including thyroid problems, sleep issues, and headaches. They allege that they all face a significantly higher risk of cancer, and require regular cancer screening. Two of the plaintiffs worked while pregnant, and both have asserted claims for their children’s injuries. One of the children allegedly suffers from severe radiation-related health problems.

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A jury awarded more than $5 million to a man who suffered severe injuries when the ceiling of a rented storage unit collapsed on top of him, trapping him inside. The plaintiff in Wolkoff v. Sunshine Storage, Inc., et al, No. CACE09014543 (Fla. 17th Cir.), claimed that the defendants failed to construct the building correctly or to maintain it in good repair. The initial defendant, which owned and managed the building, claimed that the plaintiff was partly at fault for his injuries, as well as third-party defendants like the building contractor and the engineer. The jury apportioned fault among the parties, finding the plaintiff to be ten percent at fault. Unlike Maryland, which still follows the contributory negligence doctrine, this only meant a ten percent reduction of the damage award.

The plaintiff, a retired contractor living in Boca Raton, Florida, rented a storage unit in Deerfield Beach. He switched the lease to a larger unit, and on January 3, 2009, he was moving the contents out of the smaller unit and into the larger one. While he was standing in the smaller unit, the metal roof collapsed, trapping the then-66 year-old under about 3,000 pounds of debris.

The plaintiff was an avid bodybuilder, but the accident put an end to that. His injuries included a fractured pelvis, ruptured urethra, and nerve damage in both of his legs. He sought treatment at Johns Hopkins in Baltimore, Maryland to repair his pelvis and his urethra. Because of the damage to his pelvis, he had to use a colostomy bag for about three years. He lost his sight in one eye and became partially blind in the other. He developed multiple infections in his legs and feet, and is now vulnerable to additional infection. After extensive rehabilitation, he still requires the use of a walker or wheelchair. Many of these conditions are irreversible.

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A lawsuit alleges that sheriff’s deputies negligently placed a locksmith in an unreasonably dangerous situation by bringing him along on an eviction without warning him of specific known risks, resulting in his death. Engert, et al v. Stanislaus County, et al, No. 1:13-cv-00126, 2nd am. complaint (E.D. Ca., Oct. 23, 2013). The individual subject to eviction was reportedly known to be both heavily armed and violent, but the sheriff’s deputies allegedly did not warn the locksmith of the danger, nor did they provide any safeguards for him. The locksmith’s widow sued the county and various county officials for violations of her late husband’s civil and constitutional rights, negligence, and wrongful death.

Two deputies of the Stanislaus County Sheriff’s Department, Robert Paris and Michael Glinskas, were assigned on April 12, 2012 to perform an eviction at an apartment in Modesto, California. According to the plaintiff’s most recent amended complaint, the apartment’s occupant, James Ferrario, was known to the sheriff’s department as a “dangerous, mentally unstable individual, with weapons in his home,” and with a history of threats and assaults. The deputies brought a locksmith, Glendon Engert, along to open the apartment door.

The deputies allegedly did not warn Engert of the possible threat posed by Ferrario. Engert’s position in front of a doorway, with a possibly armed individual inside, is reportedly known as a “vertical coffin.” Ferrario opened fire from inside the apartment with armor-piercing bullets, killing Engert and Paris. After an eleven-hour standoff, Ferrario committed suicide. A search of his apartment yielded twenty-two firearms, including an M16 and an SKS rifle, and about five hundred rounds of ammunition.

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A father’s long legal battle over the 2001 death of his daughter in a car accident may have come to an end in November, when a jury ruled that the state of Maryland was not negligent in its maintenance of the Thomas J. Hatem Memorial Bridge, where the accident occurred. The lawsuit, Tollenger v. State of Maryland, et al, alleged that various state transportation agencies negligently failed to place a dividing barrier on the bridge to separate the four lanes of traffic. The state had successfully argued that the Maryland Tort Claims Act (MTCA) contained an implied exception shielding the state from liability for discretionary planning, but the Maryland Court of Special Appeals reversed that judgment in 2011 and remanded the case for trial. The November verdict was on the sole issue of whether the state was legally responsible for the death of the plaintiff’s daughter and other individuals.

The accident occurred during a rainstorm on August 10, 2001, when 12 year-old Ashley Tollenger was riding in a pickup truck driven by her stepfather, 52 year-old Kenneth Connor. The truck reportedly hit a patch of water on the bridge, which extends over the Susquehanna River, and began to hydroplane. The truck veered across the center line and into oncoming traffic, where a Jeep Cherokee collided with it. Ashley Tollenger was pronounced dead at the scene, and Connor was pronounced dead soon after at a nearby hospital.

Garrett Tollenger, Ashley’s father, filed suit in Harford County Circuit Court against the Maryland Transportation Authority, the State Highway Administration, the Maryland Department of Transportation, and other state defendants in August 2004. The lawsuit alleged that the state knew of potential hazards associated with the absence of a center barrier on the bridge, and that it was negligent in failing to place such a barrier. The plaintiff’s witnesses included other individuals who were injured in accidents on the bridge, and a former Harford County executive who had written to the state requesting construction of a barrier on the bridge.

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A Baltimore girl’s $2 million jury verdict for toxic exposure to lead paint suffered a setback last month, when the Fourth Circuit Court of Appeals ruled that the insurance company for the realty company that owned the house where she lived would only be obligated to pay forty percent of the total judgment. She still stands to receive a substantial sum of money, but the court’s ruling cuts the amount she may realistically expect to collect.

Lakia Roberts lived at a house in Baltimore from 1991 to 1998. When she was only twenty months old in 1992, doctors diagnosed her with lead poisoning. She continued to exhibit elevated levels of lead in her blood until 1995. Lead poisoning can have serious health effects on children, including learning disabilities and kidney damage, according to the National Institutes of Health. Roberts and her mother filed a state lawsuit against Attsgood Realty Company in 2005, claiming that the company’s negligent management of the property where they lived caused her lead poisoning.

As we previously reported in this Maryland Accident Law Blog, a jury awarded Robert $2 million in 2009, consisting of $500,000 in actual damages and $1.5 million in non-economic damages. Due to a Maryland law that caps non-economic damages at $350,000, her total judgment was reduced to $850,000.

Attsgood had sought defense and indemnification from its liability insurer, Pennsylvania National Mutual Casualty Insurance Company, commonly known as Penn National. The company had issued an insurance policy to Attsgood with one year of coverage beginning on January 13, 1992, later extended by another year. Attsgood did not have liability coverage on the property before this date. Attsgood sold the property on November 1, 1993. The policy with Penn National stated that it would pay damages for bodily injury and property damage occurring during the term of the policy.

After the jury verdict in 2009, Penn National sought a declaratory judgment in federal court holding that it was only obligated to pay at most $340,000, that being forty percent of the judgment against Attsgood. It argued that, since Roberts’ claim was for ongoing damages occurring from her birth on January 17, 1991 until August 1995, when the lead in her blood reached normal levels, it should only be obligated pay pay for the damages that occurred after its coverage began on January 13, 1992 and before Attsgood sold the property in November 1993. Roberts argued that Penn National should be obligated to pay the full amount of the judgment.

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A tragic malfunction in an elevator in Midtown Manhattan has left one woman dead and a city in shock. On the morning of December 14, 2011, 41 year-old Suzanne Hart was entering the elevator on the way to her job at an advertising firm at 285 Madison Avenue. While she had one foot in the elevator, it suddenly lurched upward, dragging her with it. The elevator stopped between the first and second floors, with her trapped between the elevator and the wall. Two other passengers in the elevator were unhurt but trapped there for an hour. Rescuers pronounced Hart dead at the scene, but could not remove her body for several more hours.

No definitive explanation for what happened has appeared yet. Some sort of electrical malfunction may be the most likely culprit, but the incident has had a profound impact on a city dependent on elevators. According to the New York Times, New York City has over 60,000 elevators. There were fifty-three accidents involving elevators last year, but only three were fatal. Hart’s death turned a mundane, everyday activity into something terrifying. Other daily activities, such as driving a car, have known risks and well-publicized dangers, but an elevator ride seems to hold a particular resonance for many people.

The city’s Department of Buildings is conducting an investigation of the incident. The building has remained closed since the day of the accident, but is expected to reopen in January 2012. A spokesperson for the Department said that the accident had raised “structural concerns” for the entire building, an indicator of the force of the elevator’s movement. Transel Elevator, Inc., which services elevators all over the city and acknowledges doing electrical maintenance work on that particular elevator several hours before the accident, is a focus of the investigation. The biggest mystery for investigators, according to CBS News, is why all of the elevator’s safeguards seem to have failed at once. Elevators have safety mechanisms that should prevent them from moving while the doors are open. These mechanisms have several backups, but none of them worked that morning.

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Maryland’s Court of Appeals issued a ruling in late October that strikes down a state law shielding rental property owners from liability to their tenants for lead paint exposure if those owners could show they took precautions to protect children from such exposure. The unanimous ruling held that the statute violated the Maryland Constitution by denying victims of lead paint poisoning their day in court. The court left the regulatory portions of the law in place.

Maryland enacted the law in question, the Reduction of Lead Risk in Housing Act, in 1994 as a compromise after lengthy negotiations between public health advocates and property owners. Lead paint poisoning had once been a huge problem for children in Maryland, particularly in Baltimore, but advocates of the law claim the rate of lead poisoning has decreased by 98 percent since the law passed. The law requires owners of rental properties built prior to 1950 to register with the Maryland Department of the Environment and to take steps to remediate lead content in their properties, such as by removing known lead-painted surfaces and removing lead dust. The Department of the Environment states that around 73,000 rental units are registered, nearly all built before 1950. Baltimore banned lead inside homes in 1950, and the rest of the state followed in 1978.

The troublesome portion of the law involves the liability of rental property owners to their tenants when exposure does occur. If a property owner has complied with the regulatory provisions of the law, their liability is limited to $17,000, which might cover the costs of relocating to a lead-free residence but does not compensate for injuries that can last a lifetime. Exposure to lead-based paint can cause severe injuries, including brain damage.

The lawsuit, Jackson v. Dackman Co., et al, sought damages for brain damage allegedly suffered by ZiTashia Jackson when she ingested lead-based paint while residing at two different addresses in Baltimore, both owned by the Dackman Company. According to the complaint, the lease did not note chipping or flaking paint or other similar hazards, but both were rampant in both apartments. The tenants allegedly complained to the landlord, but no repairs occurred. Since the property owners had registered with the state and undertaken remediation efforts, its liability was limited by the statute, cutting off the plaintiffs’ claims for negligence and deceptive trade practices. The defendants obtained summary judgment, the plaintiffs appealed, and the case made its way to the Court of Appeals.

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