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Blogs by Matthew J. Focht
Two recent rulings from Maryland’s highest court have clarified the legal sufficiency of the data underlying expert causation testimony in lead paint cases.
On its web site, the Maryland Motor Vehicle Administration (MVA) provides a very brief summary of what to do if you, as a driver, are involved in an automobile accident. While the three tips given on the MVA website have some merit, there is much more that can and should be done after an automobile accident involving physical injury. Previously, we have discussed on the JGL Blog whether you should move your vehicle from the scene of an accident and whether you should talk with the other driver’s insurance company after an accident. Here are some additional tips that will help you present the strongest possible auto accident injury claim:
Maryland and the District of Columbia, along with Virginia, North Carolina, and Alabama, continue to adhere to the minority rule of tort causation known as “contributory negligence.” “Contributory negligence, if proved, is a complete defense that bars a plaintiff’s recovery in a negligence action.” Warsham v. Muscatello, Inc., 985 A.2d 156, 167 n. 10 (Md. App. 2009). Contributory negligence has been defined traditionally as the failure on the part of the plaintiff to observe ordinary care for [his or her] own safety. Kasten Construction Co. v. Evans, 273 A.2d 90, 92 (Md. 1971); Menish v. Polinger Co., 356 A.2d 233, 236 (Md. 1976). At its heart, contributory negligence is “the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do under the circumstances.” Potts v. Armour & Co., 39 A.2d 552, 556 (Md. 1944). “Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident; otherwise, the negligence is not contributory.” Batten v. Michel, 292 A.2d 707, 711-12 (Md. App. 1972). In other words, if the plaintiff contributes even slightly (even by so little as 1%) to the happening of his or her injury, he or she is absolutely barred from recovery.
“The burden of proving contributory negligence is on the defendant.” Reiser v. Abramson, 286 A.2d 91, 93 (Md. 1972). It is important to stress that “[i]t is not every action on the part of a litigant which an opponent by way of ‘second guessing’ or hindsight may successfully label as contributory negligence.” Rogers v. Frush, 262 A.2d 549, 552 (1970). “[I]n measuring contributory negligence, the standard of care to be used as the criterion is that of an ordinarily prudent person under the same or similar circumstances, not that of a very cautious person.” Menish, 356 A.2d at 236.
Autonomous Vehicles Are Here…What Does this Mean for Purposes of Automobile Insurance Coverage and Liability for Accidents?
The era of autonomous (aka “driverless”) vehicles has arrived and with it will come unprecedented changes in tort and insurance law.
In a recent case out of the Superior Court of Connecticut, Judicial District of Fairfield, a personal injury plaintiff argued that the fact that he “is an undocumented immigrant, resident or worker, does not bar him from recovering lost earnings, whether past or future; nor is it relevant to establishing an appropriate amount of damages.” In ruling on a motion in limine on the issue, the Court found that:
the defendant may use the terms [“undocumented worker,” “undocumented alien,” and “illegal alien”] when referring to the plaintiff in the event the plaintiff pursues an award for back pay or future lost wages, [subject to certain limitations], and may use these terms to describe witnesses who testify in the plaintiff’s behalf regarding the subject of the plaintiff’s rate of wages, hourly work week and methods of the payment of any such wages[.] If such undocumented workers testify only to the facts surrounding the issue of liability and injuries, their undocumented status may not be the subject of any inquiry by the defendant. If the plaintiff determines he will not be seeking lost wages, both past and future, his undocumented status is not relevant and may not be the subject of inquiry by the defendant.
The Court in Guamamtario went on to hold that the defense would be not be barred from introducing any “evidence, argument, suggestion or inquiry regarding the plaintiff’s immigrant or residency status and that the plaintiff may be deported or may have a desire or intentions, if any to return to Equador. However, should the defendant present no evidence the plaintiff’s deportation is imminent or probable, or that the plaintiff intends to return to Equador, the defendant is barred from presenting argument, suggestion or inquiry regarding possible deportation or the possibility that the plaintiff could return to Equador.”
Snapchat, the popular social networking application, is unique in that the messages sent over the app “self-destruct” seconds after being opened. Snapchat also provides its users with a series of “filters,” one of which superimposes the speed at which a user was travelling over a photograph or video. In other words, if you take a selfie as a passenger in a car travelling 35 miles per hour, and the “miles per hour” filter is engaged, the app will use the camera to recognize how fast your vehicle is travelling and “35 miles per hour” will be superimposed over your picture. This filter was pushed to users in a 2013 product update. Snapchat users can win virtual “trophies” by sending photographs using filters. As one lawyer described it, “Snapchat has embedded [incentives] into its interface. It’s become more of a game.”
In the early evening of Nov. 18, at the beginning of rush hour, a Freightliner truck tractor carrying containers full of hazmat suits overturned on Interstate 81. Because of the nature of the cargo, first responders to the scene had to take extra precautions to ensure there were no risks of contamination to themselves or the community. While some radioactivity was detected, experts agreed that the amount of possible exposure was too small to cause a serious threat and – after nearly four hours of diverting traffic – reopened the highway.
According to the Insurance Research Council, approximately 1 in 8 drivers in the United States are uninsured, meaning that these drivers are on the road without even the minimum auto insurance required by law. If you are injured in an accident with a negligent uninsured motorist, it is likely that you will be unable to recover the full value of your claim. This is because the overwhelming majority of drivers lack the financial resources to resolve even a small claim out of pocket.
A question clients often ask is whether they should talk to the opposing driver’s insurance company after they have been injured in a car accident.
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