MARYLAND TORTS DISTINCTIONS PROFESSOR MICHAEL PAPPAS UNIVERSITY OF MARYLAND SCHOOL OF LAW

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1 MARYLAND TORTS DISTINCTIONS PROFESSOR MICHAEL PAPPAS UNIVERSITY OF MARYLAND SCHOOL OF LAW CHAPTER 1: INTENTIONAL TORTS AND NEGLIGENCE A. Intentinal Trts Invlving Persnal Injury 1. Battery Intent In MD, actr must intend nt nly a physical cntact but als a cntact Damages Plaintiff may recver nminal damages even thugh n actual damage ccurred. In MD, punitive damages are allwed nly when plaintiff prves. 2. Intentinal Inflictin f Emtinal Distress In MD, a manifestatin f is required fr all claims f emtinal distress. 3. False Imprisnment MD Shpkeeper's Privilege A shpkeeper incurs n liability if detentin was based n r a that patrn has stlen merchandise. A merchant can then recver the item and a civil penalty equal t the item s price. B. Defenses t Intentinal Trts Invlving Persnal Injury 1. Cnsent Infrmed cnsent A medical malpractice claim based n lack f infrmed cnsent must allege, rather than an intentinal trt like assault r battery. 2. Self Defense a. Duty t retreat A persn must retreat befre using deadly frce unless she is in her wn r its.

2 A defendant will nt be liable fr injury r death f smene wh enters his dwelling r place f business if: He frce r deadly frce is necessary; and The amunt and nature f the frce was. C. Negligence 1. Duty a. Freseeable plaintiffs MD fllws the Cardz (majrity) view. Duty f care is wed t plaintiffs wh are within the zne f as a result f defendant s negligent cnduct. Rescuers,, and are barred frm recvering fr injuries suffered while respnding t negligent acts (firefighter's rule). b. Affirmative duty t act MD Gd Samaritan Law Prtects licensed medical practitiners, emergency wrkers trained by the American Red Crss, emergency squads whse members have immunity, and crpratins whse fire departments have immunity Requirements care must be prvided: Fr ; and At the f the emergency, in t a medical facility, r by cmmunicatin with emergency persnnel. 2. Standard f Care a. Custm Physicians All physicians, nt just specialists, are held t a standard f care Infrmed cnsent standard fcus is whether physician has withheld infrmatin that was t patient s assessment f risks and benefits (minrity psitin) b. Negligence per se Vilatin f a statutry duty is nt necessarily negligence per se it is merely. c. Special classes f defendants autmbile drivers Drivers we the duty f care t all passengers, including guests (n guest statute) Themis Bar Review, LLC MD Trts Distinctins

3 d. Special classes f defendants pssessrs f land apprach fllwed standards f care wed by land pssessrs (e.g., wners, ccupiers) t land entrants based n status as invitees/licensees/trespassers Invitee and care t keep premises safe fr invitee Trespasser N duty t trespasser (even knwn trespasser) except t abstain frm r wantn miscnduct r Licensee Bare licensee a persn wh is n land with pssessr s permissin fr licensee s wn purpse is wed same duties as trespassers Licensee by invitatin scial guests are wed care t make premises safe r a warning f knwn dangerus cnditins that cannt reasnably be discvered Attractive nuisance dctrine fllwed 3. Breach f Duty a. Medical malpractice Dctrine f res ipsa lquitr applicable t medical malpractice in MD because expert testimny required 4. Causatin a. Actual cause (cause in fact) Multiple and/r indeterminate trtfeasrs Was defendant s trtius cnduct a factr in causing plaintiff s harm (substantial factr test) Lss f chance f recvery Plaintiff whse chances were less than t begin with cannt recver fr lss f chance f recvery b. Prximate cause (legal cause) Maryland s Bulevard Rule driver f autmbile wh is required by sign r therwise must stp and yield t favred driver MD Trts Distinctins 2016 Themis Bar Review, LLC 3

4 Failure t d s will result in determinatin f 5. Damages a. Persnal injury caps damages in unintentinal persnal injury and wrngful death lawsuits ($815,000, frm Octber 1, 2015 t September 30, 2016, increases by $15,000 each yearly perid) malpractice lawsuits ($770,000 fr 2016, increases by $15,000 each year) Juries are nt infrmed f these caps, and if they grant an award abve the cap, the curt will reduce the award t the cap. These caps d nt apply in intentinal trts r t ecnmic r punitive damages. b. Cllateral Surce Rule Fllwed but, in medical malpractice actin, the curt may cnsider payments received by plaintiff frm third parties in determining whether the jury award is. 6. Special Rules f Liability a. Negligent Inflictin f Emtinal Distress recgnitin as a separate trt in MD b. Wrngful Death Actins and Survival Actins Wrngful death actins recgnized A child f parents wh are nt married, but whse has been acknwledged by the father is cnsidered a child fr this actin. A step-child is nt cnsidered a child fr this actin Survival actins any cause f actin at law r equity, except actins c. "Wrngful Life" and "Wrngful Birth" Claims "Wrngful pregnancy" and "wrngful birth" claims recgnized Parents may be awarded expenses until the child reaches the age f 18. "Wrngful life" claim brught by child recgnized Themis Bar Review, LLC MD Trts Distinctins

5 CHAPTER 2: NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, DEFAMATION, INVASION OF PRIVACY, AND BUSINESS TORTS C. Negligence (cntinued) 7. Vicarius Liability a. Liability f emplyer fr emplyee s trts (respndeat superir) An emplyer is vicariusly liable fr intentinal trt cmmitted by emplyee when emplyee is acting within the. b. Autmbile Owners Negligent entrustment Liability extends t any persn wh has right t vehicle at time f harm Family purpse dctrine Nt recgnized in MD, but there is a that the driver was given permissin t use the car c. Parents and their children Parental liability fr minr children s trts Parents are vicariusly liable fr their children s trts up t $10,000 d. Liability fr anther s alchl cnsumptin liability n server fr anther's alchl cnsumptin (N Dram Shp Act) 8. Immunities frm Trt Liability a. Liability f gvernment and its fficers State gvernment Waiver f immunity, but ability t sue is limited A claim is subject t a limit f $ per claimant, per incident Punitive damages are Municipalities (lcal gvernments) Waiver f immunity, but ability t sue is limited A claim is subject t a limit f $ per claimant, $ per ccurrence Punitive damages are MD Trts Distinctins 2016 Themis Bar Review, LLC 5

6 Gvernmental versus prprietary functin Actin by a gvernmental entity is gvernmental rather than prprietary when Sanctined by legislature Slely fr public benefit and welfare, and Has n element f private interest b. Intra-family immunity Parent-child immunity Abrgated Fr trts When child has suffered, inhuman, r utrageus cnduct at parent's hands An child may sue fr claims that arise after the child reaches majrity. c. Charitable immunity Recgnized as an defense 9. Sharing Liability amng Multiple Defendants a. Cntributin The amunt that each defendant must cntribute t damages is determined n a basis. 10. Defenses t Negligence a. Cntributry negligence Recgnized as a cmplete t recvery in MD Plaintiff's negligence may be mitigated by prf that the defendant had the chance t avid the accident r injury. Cmparative fault nt recgnized in MD b. Assumptin f risk Exculpatry clauses in cntracts (waiver) enfrceable unless it exempts: harms r negligence; unequal bargaining pwer; r Transactins affecting the interest. Bth and assumptin f risk are recgnized as a bar t a plaintiff s recvery in MD Themis Bar Review, LLC MD Trts Distinctins

7 Requirements defendant must establish that plaintiff: Was f the risk; the nature f the risk; and cnfrnted the risk, as judged by an bjective standard. Applies even t minr plaintiffs, but standard is based n child s age, intelligence, and experience D. Strict Liability 1. Abnrmally Dangerus Activities a. Restatement (Secnd) f Trts 520 factrs Existence f degree f sme harm t persn, land r chattels f anther that resulting harm will be great t eliminate risk with exercise f reasnable care Extent t which activity is a matter f cmmn usage Inapprpriateness f activity t the where it is carried n Extent t which its t cmmunity is utweighed by its dangerus attributes 2. Animals a. Dmestic animals generally dgs Persnal injury r death caused by dg Evidence f persnal injury r death creates a that the wner knew r shuld have knwn that the dg had vicius r dangerus prpensities. Injury, death, r lss t persn r prperty that results while the dg is running at large Owner liable unless persn wh was injured was: Cmmitting r attempting t cmmit a r ther criminal ffense n wner s prperty; Cmmitting r attempting t cmmit a criminal ffense against any ; r, trmenting, abusing, r prvking the dg. Landlrd's liability liable nly if landlrd: the animal had dangerus prpensities; Had it psed a threat t humans; and Had f premises r the t eliminate the danger. MD Trts Distinctins 2016 Themis Bar Review, LLC 7

8 E. Prducts Liability 1. Negligence a. Breach Opprtunity t inspect A retailer wh is merely a between the manufacturer and custmer rdinarily has duty t inspect r test the prduct, unless the retailer knew r had reasn t knw f a defect. 2. Strict Prduct Liability a. Defective prduct Design defects tw standards The risk-utility test applies when a prduct. The cnsumer expectatin test applies in. b. Defendants MD Sealed cntainer defense A seller ther than manufacturer may assert this defense when: The prduct was acquired and then sld/leased in a cntainer in unaltered frm; Seller had knwledge f defect; Seller culd nt have thrugh reasnable care defect while prduct was in seller s pssessin; Seller did nt r designate the specificatins fr prduct; and Seller did nt, assemble, r mishandle prduct while prduct was in seller s pssessin. The sealed cntainer defense nt available if plaintiff cannt bring actin against the. c. Defenses Cntributry negligence defense t strict liability actin F. Defamatin, Invasin f Privacy, and Business Trts 1. Defamatin a. Prima facie case Defamatry cmmunicatin, which is Defendant was at in cmmunicating the statement Themis Bar Review, LLC MD Trts Distinctins

9 Plaintiff suffered b. Fault plaintiff must establish At least defendant's Punitive damages are limited t situatins when plaintiff establishes that defendant had knwledge the defamatry statement was false. c. Libel and slander distinguished Libel (permanent frm f statement) must be prved fr bth libel per qud and libel per se Exam Tip 1: The nly distinctin between libel per qud and libel per se in Maryland is that libel per qud requires prf f extrinsic facts, and libel per se des nt. Slander (impermanent frm f statement) must be prved, even fr slander per se Cnstitutinal limitatins n damages 2. Invasin f Privacy Punitive damages available nly if knwledge f falsity is prven a. Misapprpriatin f right t publicity recgnized as a trt Includes apprpriatin f anther s r, but must have value b. Intrusin upn seclusin recgnized as a trt Editr's Nte 1: Prfessr Pappas misspke. Maryland des recgnize the trt f intrusin upn seclusin. c. Placing plaintiff in false light recgnized as a trt Defendant must publish facts which place plaintiff in false light Facts must be t the extent they put plaintiff in a bad light 3. Intentinal Misrepresentatin (als called Fraud r Deceit ) a. Damages measurements In MD, a plaintiff may chse between and MD Trts Distinctins 2016 Themis Bar Review, LLC 9

10 4. Intentinal Interference with Business Relatins a. Intentinal interference with cntract Justificatin defense defendant's mtives must be Wrngful discharge can be maintained by an emplyee-at-will if his emplyer has terminated the emplyee t a clear public plicy b. Interference with prspective ecnmic advantage Variety f factrs used t determine whether defendant's cnduct is imprper [END OF HANDOUT] Themis Bar Review, LLC MD Trts Distinctins