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1 LIABILITY CHRONICLE THE LIABILITY NEWSLETTER OF FRANKLIN & PROKOPIK Editor: Stephen J. Marshall Winter 2015 Franklin & Prokopik UPCOMING EVENTS DISTRICT OF COLUMBIA February 26, 2015 Virginia Liability Seminar Fairfax, VA March 19, 2015 Maryland Liability Seminar Hanover, MD April 22, 2015 Maryland Workers Compensation Seminar Hunt Valley, MD May 14, 2015 District of Columbia Workers Compensation Breakfast-N-Learn Linthicum, MD May 20, 2015 Business Law Seminar Turf Valley, MD See website for more details on all of our events. Inside this issue: Maryland Update 2 Delaware Update 3 Florida Update 3 Virginia Update 4 West Virginia Update 4 Why There Will Always Be Lawyers... 6 Attorney Direct Dial 7 EXPERT TESTIMONY ON THE STANDARD OF CARE FOR ISSUES OF SAFETY, SECURITY, AND CRIME PREVENTION REQUIRED BY THE D.C. COURT OF APPEALS IN RECENT SUIT ALLEGING INADEQUATE SECURITY IN VODKA SMASHING NIGHTCLUB ALTERCATION. In Night and Day Management, LLC v. Butler, No 13-CV-944, the District of Columbia Court of Appeals affirmed summary judgment in favor of the defendants on the basis that plaintiffs could not establish the standard of care for nightclub security without expert testimony. This case arose out of a fight at Fur Factory Nightclub, in D.C. Plaintiffs, a group of young men, reserved a table in the VIP section, which did not have security personnel. One of the Plaintiffs, Richard T. Short ( Short ), slipped and knocked over a bottle of vodka belonging to another group in the VIP, who in turn, flashed gang signs at Short and his friends, and tensions escalated. Ultimately, a bottle of vodka was smashed over Short s head, and Plaintiffs were attacked with broken bottles. Security personnel arrived after the fight had ended, and the security cameras in the VIP room were not working. Plaintiffs sued the nightclub and its management company ( Defendants ), alleging, in pertinent part, that the lack of security in the VIP section of the nightclub resulted in the Plaintiffs injuries. Plaintiffs claimed that the nightclub was negligent because security personnel did not intervene in the fight and that had adequate security been provided, the fight would not have ensued. The trial Court entered judgment in favor of the nightclub. The Court of Appeals, in considering whether the trial court properly granted summary judgment, discerned whether the standard of care for nightclub security is within the realm of a lay person s common knowledge and everyday experience, such that plaintiff is not required to adduce expert testimony to establish the applicable standard of care. The Court of Appeals recognized its own precedent in affirming prior trial court rulings requiring that expert testimony was required to establish the standard of care in negligence cases involving issues of safety, security, and crime prevention. The Court noted that Plaintiffs took no discovery as to how many guards were on duty, how they were deployed throughout the club, or why they did not intervene. The Court held in pertinent part, assuming that there were no security guards or working security cameras in VIP room these facts cannot establish what the security arrangements should have been without expert testimony. Further, the Court rejected the Plaintiffs position that the standard of care could be inferred from the nightclub s agreement with its neighborhood commission and also from a statute, D.C. Code , which requires nightclubs to submit a security plan with their liquor license application. Therefore, as Plaintiffs failed to proffer any admissible expert evidence as to appli- Quality Representation, Personal Service Phone: The B & O Building, Two North Charles Street, Suite 600, Baltimore, MD Facsimile: Easton MD Hagerstown MD Herndon VA Martinsburg WV Tampa FL Wilmington DE

2 WINTER 2015 Page 2 cable standard of care, the Court of Appeals determined that summary judgment was properly granted. In effect, the Night and Day decision requires plaintiffs who allege that inadequate security, lack of security personnel, inoperative security cameras or even that the property owner had a duty to intervene in a fight, caused or contributed to an injury, must demonstrate by expert testimony, the applicable standard of care relating to the profession or occupation of security and safety in order for the plaintiff to meet their burden. For more information about this article, contact Carrie V. Bohrer at cbohrer@fandpnet.com or (410) MARYLAND UPDATE SNOW AND ICE CLAIMS As the temperatures and precipitation in the region drops, we thought it may be helpful to provide a general overview of the laws related to snow and ice claims in Maryland. In Maryland, a property owner may be liable for injuries caused by a fall on ice where it negligently permits an accumulation of ice on its sidewalks or exteriors. A Plaintiff who can demonstrate ordinary care may recover for damages caused by a fall on ice covering a sidewalk, of which the property owner had, or should have had, timely notice, and which should have removed the snow, before the accident happened. Generally, liability in these winter months as to snow and ice injuries will depend on whether the property owner is on sufficient notice of the hazardous condition, and had sufficient time to remove ice or snow from their sidewalks or exteriors. Another consideration will be whether a sufficient period of time elapsed since the cessation of the precipitation to permit the owner to remedy the condition. Snow and ice claims need to be evaluated on a case-by-case basis as every claim presents different facts and circumstances. There are circumstances in which a plaintiff may be barred from recovery for a fall as a result of a wintery condition. Generally, one cannot recover from a fall on the street if the accumulation of recent sleet or snow is so extensive that it is deemed impracticable to remove, or if the condition is so extreme that it is determined to be an open and obvious danger. Likewise, if a Plaintiff failed to exercise ordinary care, or is found to have knowingly appreciated the risk of the hazardous condition, recovery may be barred. The Plaintiff s knowledge of a dangerous snow or ice condition does not, in itself, relieve a property owner for failure to perform his duty to exercise reasonable diligence to keep common areas in safe condition. The mere fact that the Plaintiff is aware that snow and ice has accumulated on areas under the owner s control does not, as a matter of law, constitute contributory negligence, if it reasonably appears that the Plaintiff might safely use such areas with the exercise of care. Liability will depend on whether the Plaintiff exercised reasonable care for their own safety at the time of injury. A particular risk to property owners is the phenomena known as black ice. Recent snow and ice cases in Maryland have held that the knowledge acquired from encountering visible snow and ice are imputed to the plaintiff as a matter of law. A more recent case, Poole v. Coakley, 423 Md. 91 (2011), considered a determination, made as a matter of law, concerning knowledge of the risk of danger posed by black ice. In this case, the Court ruled that a plaintiff, as a matter of law, cannot be said to actually know of the risk of slipping on black ice unless the plaintiff has subjective knowledge of the risk. The Court further stated that it may be a matter of common knowledge that ice is slippery but one s ability to identify black ice, when by its nature it is not perceivable or knowable until the moment of experience. If you have any questions about the laws in Maryland, or any of the other venues in which we practice (Virginia, Washington D.C., Delaware, or West Virginia) related to snow and ice claims, please contact our Baltimore office ( ) and we will direct you to the appropriate attorney.

3 WINTER 2015 Page 3 DELAWARE UPDATE DELAWARE COURT LIMITS PIP COVERAGE IN INCIDENT NOT DIRECTLY INVOLVING THE USE OF AN AUTOMOBILE. Friel v. Hartford Ins. Co., 2014 WL (Del. Super. May 6, 2014) In this case, the Plaintiff was employed as a delivery driver for Southern Wine & Spirts ( SWS ) and was injured during a pallet stop at Costco. The Plaintiff used chains and a claw to connect pallets to a forklift. The chains and claw were provided by SWS and the forklift was from Costco. The Plaintiff injured his back when he bent to connect the chains while in the back of the truck. The plaintiff filed a workers compensation claim against SWS and a PIP coverage claim against SWS s automobile insurance carrier, Hartford. Hartford denied liability. In Delaware, PIP coverage is available to occupants and other persons injured in an accident involving a motor vehicle. An occupant of a vehicle is defined as a person who is either engaged in the operation of the vehicle or who is within the reasonable geographic perimeter of the vehicle. A person qualifies as an occupant when they are in, entering, exiting, touching, or within reach of the covered vehicle. To determine if the injury is the result of an accident involving the vehicle, the court must assess if the vehicle was an active accessory in causing the injury and whether there was an act of independent significance that broke the causal link between use of the vehicle and the injuries inflicted. Active accessory is defined as something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury. The court found the Plaintiff to be an occupant, but that his injury did not result from an accident involving a motor vehicle accident. The court explained that the Plaintiff is an occupant according to the reasonable geographic perimeter doctrine as he was standing in the back part of the truck when his injury occurred. However, the vehicle was not an active accessory in causing [the] [P]laintiff s injury. The court placed emphasis on the length of time between when the vehicle had been turned off and the injury and that the chains and claw were from SWS. The takeaway from this case is the court placed great weight on the mechanism of injury, in that it related more to the tools used in removing the pallets from the truck rather than the truck itself. Thus, if the Plaintiff s injury was more closely tied to the vehicle e.g. slipping and falling in the back of the truck the court may have awarded PIP benefits. For more information about this article, contact Robert S. Hunt, Jr. at rhunt@fandpnet.com or (302) FLORIDA UPDATE THE QUEST FOR TRUTH IN DAMAGES IN FLORIDA Florida juries, especially those in South Florida, have earned the reputation for awarding large damage awards to Plaintiffs in personal injury cases. In 2014 alone, south Florida juries have handed down verdicts ranging from $10 to $20 million in four separate wrongful death cases which did not involve tobacco litigation. Large verdicts in personal injury cases were not far behind as juries returned verdicts of $7 million, $9 million and $10 million, respectively, in cases involving a dog attack, a vehicular tire blowout, and a rear end auto accident. While these run-away verdicts are out of the ordinary, the results emphasize the view of the defense bar and many concerned insurers and businesses that jury verdicts are often over-inflated in Florida because of the permissible introduction of deceiving proof of medical damages at trial. Undoubtedly, the largest portion of economic damages in personal injury litigation involves past and future medical expenses. Most medical providers, however, either offer or are required to discount their standard billing rates for the benefit of Medicaid/Care or a private insurance company and personal injury plaintiffs are rarely, if ever, required to pay the health care provider s higher standard billing rate. Florida juries are never told that that the medical expenses presented at trial are actually significantly compromised or reduced or that the Plaintiff does not have the obligation to pay the full amount presented at trial. Instead, by statute, the trial judge reduces the gross verdict by contractual and other write-offs after the verdict. Typically, these post trial set-offs reduce the medical damages by 50-80%. Even more disturbing is the Plaintiff s bar s practice of entering into Letter of Protection (LOP)

4 WINTER 2015 Page 4 agreements with treating physicians, whereby the payment for any medical treatment is deferred until after judgment. This allows Plaintiffs to avoid post-verdict collateral source set-offs because the full amount of the usually over-inflated bill is still outstanding. The jury s misguided perception of the amount of medical damages at issue at trial is significant because it may also have a substantial impact on the amount a jury awards a personal injury plaintiff for past and future pain and suffering. Typically, when significant medical bills are in play, higher amounts for past and future pain and suffering are awarded. This year, the Florida legislature made a concerted effort to address the problem of the admission of deceptive medical damages at trial by introducing bills aimed at promoting Truth in Damages in Florida. Each bill introduced in the 2014 session sought to prohibit the introduction of phantom damages by only allowing the introduction of the amounts actually paid to health care providers, rather than the amount billed; by limiting proof of the cost of future medical damages to only the amount that is usual and customary for similar health care providers in the same geographical region, which may be determined by the customary rates paid by Medicare or a private health insurer; and, by disallowing recovery for medical damages determined by the jury to be medically unnecessary. While both Truth in Damages bills introduced by the Florida House and Senate during the 2014 session failed to make it out of committee, the push for truth in damages will continue to be on the top of the agenda for the defense bar and for business and insurance risk managers who seek fairness in the civil justice system. We will continue to monitor legislative developments as the 2015 legislative session begins. For more information about this article contact Natalie Stroud Fenner at nfenner@fandpnet.com or (813) VIRGINIA UPDATE TABITHA LASLEY, A MINOR, BY JUANITA LASLEY, HER NEXT FRIEND, ET AL. V. DANIEL HYLTON SUPREME COURT OF VIRGINIA OCTOBER 31, 2014 In a case of first impression, the Supreme Court of Virginia held that a parent of an eight (8) year-old girl who was injured while she was operating an all-terrain vehicle (ATV) could not sue the owner of the ATV when the girl s father was present, gave permission for her to use the ATV and supervised her efforts. The Court held if a child s parent is present and supervising, and knows or should know of open and obvious risks associated with an activity, a social host does not breach a duty of reasonable care when he allows a child to participate in an activity with the parent s permission. The Court upheld the trial court s dismissal of the suit against the host. The underlying facts are as follows: In 2008, Daniel Hylton ( Hylton ) hosted a Labor Day cookout for his friends and neighbors at his home in Botetourt County. Gene Mosley visited the cookout with his two (2) daughters (8 year-old Tabitha Lasley Tabitha and 12 year-old Casey Lasley Casey ). Initially, Casey took a turn on the ATV and proceeded with her father s permission. Casey had trouble stopping and ended up striking her father in the process. Then Tabitha wanted a turn and her father told her yes. Equipped with a helmet her father helped her on to the ATV and explained the controls to her. Tabitha took off and promptly lost control and began swerving. The ATV tipped and she was thrown to the ground resulting in her sustaining multiple injuries. Tabitha s mother filed suit on her behalf but the trial court struck the evidence and granted judgment for Hylton. The Supreme Court found that the evidence showed that the danger to Tabitha was open and obvious and that [w]hen a person invites friends or family over, she should be able to expect parents who are present to supervise their own children. An invitation to a social event is not an invitation to relinquish parental responsibility. For more information about this article, contact Jessica Berdichevsky at jberdichevsky@fandpnet.com or (571) WEST VIRGINIA UPDATE DIVORCE AND THE BREACH OF FIDUCIARY DUTY IN WEST VIRGINIA Seldom does the practice of law produce salacious facts regarding the allegations of duty, breach, causation, and damages. A recent case decided by the West Virginia

5 WINTER 2015 Page 5 Supreme Court of Appeals appears to merge such facts that revolved around a divorce between man and wife, and causes of actions that dated back to medieval England. Specifically, the West Virginia Supreme Court of Appeals in State of West Virginia, ex rel., Justin S. Golden, Sr., & New York Life Insurance and Annuity Corporation, and Nylife Securities, LLC. v. The Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, West Virginia; & Mark A. Miller, No , recently dealt with a case wherein the Plaintiff sued the Defendant for criminal conversation, adultery, and breach of a fiduciary duty to a beneficiary, as a result of Plaintiff s allegation that Plaintiff s ex-wife engaged in an adulterous affair with the Defendant that destroyed his marriage, led to his divorce, and damaged him in the amount of $561, Plaintiff and his wife were married in 1994, and have one child. In 2010, Defendant s wife rolled over her 401(k) into an annuity with New York Life, and Defendant was the New York Life employee who assisted her in the transaction. Originally, the Plaintiff was listed as beneficiary on the annuity, and after the couple divorced, the Plaintiff s ex-wife changed the beneficiary to their son. After the purchase of the annuity, Plaintiff s wife and Defendant started having an affair. Subsequently, Plaintiff filed for divorce and the parties divorce was finalized by Order dated November 22, Subsequently, Plaintiff filed suit against the Defendant alleging numerous causes of action arising from the affair of his ex-wife and Defendant. This case arrived at the West Virginia Supreme Court of Appeals upon the filing of a writ of prohibition by the Defendant, who contends that if the case proceeded to trial, his private and personal life will be paraded in front of the jury on claims that the Court has previously ruled can not be maintained. In its analysis, the Court traced the law of alienation of affections back to the common law of England. The Court explained that the claim of criminal conversation was a civil cause of action under the common law to protect a husband s interest in exclusive sexual intercourse with his spouse. This cause of action evolved into a necessary step in the procedure for divorce under the common law. The cause of action of criminal conversation has slowly been abolished by all but a few states. The overriding basis for such abolition is that: (1) a woman is no longer the property of her husband; (2) the tort has no deterrent effect; (3) a cause of action may be brought for vindictive purposes; (4) the potential for abuse is great; (5) the tort is devoid of any defenses; and (6) determining damages is difficult. The Court then examined the common law tort of alienation of affections which has been defined as interference with the marital relation that changes one spouse s attitude toward the other. Likewise, this tort went from relative universal effect in all fifty states to being abolished in all but a few states. The overriding concern in the abolition of the tort of alienation of affections is that: (1) the action does not preserve marital harmony; (2) courts cannot properly police settlements, which are often characterized by the plaintiff-spouse blackmailing the defendant into high priced settlement with the threat of lawsuit that could destroy the defendant s reputation; (3) the difficulty in assessing damages; and (4) the fact that the plaintiff is essentially selling his spouse s affections. In fact, West Virginia statutorily abolished the tort of alienation of affections in 1969 by the enactment of West Virginia Code a. Ironically, the West Virginia Supreme Court has only dealt with the tort of criminal conversation in two cases, one brought in 1937, and the other brought in In its analysis, the Court examined the abolition of alienation of affections in West Virginia Code a and found that the code section states explicitly Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this State for breach of promise to marry or for alienation of affections, unless such civil action was instituted prior to the effective date of this section. Subsequently, the Court then held that criminal conversation and adultery were one and the same, that they were outmoded archaic holdovers, and that they have lapsed into desuetude since West Virginia Code a was enacted. Although this case is hardly on the radar for any major precedential basis, it does establish that persons who enter the divorce process in the State of West Virginia will not have to endure any further civil actions that are based on personal behavior for the mere purpose of gaining leverage in divorce negotiations at the expense of having personal details of one s life paraded in a public forum over money and assets. For more information about this article, contact Gregory E. Kennedy at gkennedy@fandpnet.com or (304)

6 WINTER 2015 Page 6 WHY THERE WILL ALWAYS BE LAWYERS... FREE HAIRCUT A barber gave a haircut to a priest one day. The priest tried to pay for the haircut but the barber refused saying, "I cannot accept money from you, for you are a good man - you do God's work." The next morning the barber found a dozen bibles at the door to his shop. A policeman came to the barber for a haircut, and again the barber refused payment saying, "I cannot accept money from you, for you are a good man - you protect the public." The next morning the barber found a dozen doughnuts at the door to his shop. A lawyer came to the barber for a haircut, and again the barber refused payment saying, "I cannot accept money from you, for you are a good man - you ser ve the justice system." The next morning the barber found a dozen more lawyers waiting for a haircut. WHERE WE VE BEEN... Tamara Goorevitz and Stephen Marshall attended the DRI Annual Meeting in San Francisco, CA October 22-24, Andrew Stephenson attended the 22nd Annual TIDA Industry Seminar at Caesars Palace in Las Vegas, NV October 22-24, Bert Randall spoke at the Maryland Association of Community Services Fall Conference, November 10, 2014 in Cambridge, MD. Colin Bell spoke at the Conference of Freight Counsel winter meeting in Fort Myers, FL January 10-12, WHERE WE RE GOING... Stephen Marshall will attend the DRI Products Liability Conference February 4-6, 2015 in Las Vegas, NV. Colin Bell will be attending the Transportation & Logistics Council Annual Conference in Orlando, FL March 22 25, Colin Bell will be attending the Transportation Lawyers Association annual conference in Phoenix, AZ May 12 15, M a r y l a n d s N o n - E c o n o m i c D a m a g e s C a p T a b l e Date of Accident Cap October 1, 2010 to September 30, 2011 $740,000 October 1, 2011 to September 30, 2012 $755,000 October 1, 2012 to September 30, 2013 $770,000 October 1, 2013 to September 30, 2014 $785,000 October 1, 2014 to September 30, 2015 $800,000 FRANKLIN & PROKOPIK 24-HOUR EMERGENCY RESPONSE Because accidents don't always happen during business hours, Franklin & Prokopik has a 24-hour emergency response system in place for those situations where immediate action is needed to protect your interests. If you would like copies of our emergency response cards, please contact Joan Hartman, our Marketing Director, at jhartman@fandpnet.com or call her at and she will be happy to provide them to you Maryland District of Columbia Delaware Florida Virginia West Virginia Speakers Available! We can provide presentations tailored to your specific needs and can satisfy your annual training requirement. Contact Joan Hartman, our Marketing Director, at to make arrangements.

7 WINTER 2015 Page 7 Attorney Direct Dial Adkins, Jr., Neal G Fitzpatrick, Lynn M McChrystal, Lynne K Story, David M Akpan, Imoh E.* Fowler, Bradley F McGough, Timothy P.* Thompson, Barbara* Archibald, John K Gannett, Matthew J McKenzie, Laura S.* Troese, Antonio S Arnsdorf, Ralph L.* Goorevitz, Tamara B.* Miller, Kara M Walburn, Ryan M Ayd, Jessica J.* Handscomb, John J.* Neighbors, Helen D Ward, Cheryl A Bell, Colin Helsel, Jennifer Ramey Patel, Nirav Zenkewicz, Kristine R Berdichevsky, Jessica J Hoffman, Joshua M.* Prokopik, Michael W Bohrer, Carrie V Cardile, Salvatore J Howell, Brandi R Hunt, Jr., Robert S Rahi, Simran Randall, Jr., Albert B *Admitted to D.C. Bar Chiarizia, Emily M Jackson, Maija B Rhodes, Kimberly P Colvin, Shannon O Kennedy, Gregory E Rosen, Kiran Sharma* Corso, Scarlett M King, Brittany L Royer, Lauren M.* Cramer, A. Lauren Kozlowski, Angela G.* Rufe, John P.* Crawford, William A Lemmert, Sarah S Schantz, Melissa A Dannenberg, Rebecca L.* Lentz, Michael J Shevlin, Krista E Dwyer, Ami C Marshall, Stephen J Skomba, David A Erwin, Zachary L.* Mayfield, Alex M Stephenson, Andrew T Fenner, Natalie S.* McAfee, John P Stone, Sally A FirstInitialLastName@fandpnet.com

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