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May 2004
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July 2004

Hands Free Device Now Required for Cell Phone Use While Driving in D.C.

It is now the law in the District of Columbia that you have to use a hands free device to use a cell phone while driving. Here is the bill.

Later: It is also interesting that the same bill requires police officers who investigate motor vehicle accidents to (1) affirmatively report whether or not a cell phone was in use by any of the drivers at the time of the accident, and (2) record insurance coverage details for each involved driver (carrier, policy period, policy number, insurance agent). It will be interesting to see how this additional information affects litigation.

Copies of all such police reports are to be provide to the DMV, which is supposed to analyze the information and make a yearly report.

Maryland Court of Special Appeals Affirms Summary Judgment In Favor of Landowner in Asbestos Case

In Wajer v. Baltimore Gas and Electric Co., No. 697, Sept. Term, 2003 (Maryland Court of Special Appeals, June 4, 2004), the court affirmed the trial court's award of summary judgment to BG&E, which had been sued by a mesothelioma plaintiff on various theories of landowner liability.

The plaintiffs sought damages for loss of consortium and injuries associated with Mr. Wajer's mesothelioma and asbestosis. Plaintiffs sued BG&E under theories of negligence, strict liability, and premises liability, based on BG&E's status as the property owner where Mr. Wajer allegedly sustained his injuries. Plaintiffs alleged that while Mr. Wajer was working on BG&E's property, he was exposed to asbestos inhalation and subsequently developed non-malignant pleural changes, asbestosis, and mesothelioma. Mr. Wajer did not directly handle asbestos products, but contended that his exposure occurred while working in proximity to other contractors who were installing asbestos insulation or products.

BG&E moved for summary judgment, arguing that it was a premises owner and that it did not owe a duty to plaintiffs because Mr. Wajer was the employee of an independent contractor when the alleged injuries occurred. The trial court granted summary judgment, and the plaintiffs appealed.

On appeal, the Court of Special Appeals affirmed, after considering the applicability of sections 414 and 343 of the Restatement (Second) of Torts. Regarding section 414, the Court noted that to satisfy the requirements of the retention of control doctrine under 414, the plaintiffs had to show that the defendant had the right to control the details of the asbestos installers' movements during their performance of their contracts, and that the right to control existed in respect to the very thing from which the injury arose. The Court reasoned that while BG&E had general safety rules, that was not enough control, as BG&E could not dictate in detail which procedures or methods the contracts had to use. Rather, the operative detail concerning what and how products were to be applied during construction remained in the control of the independent contractors.

Regarding section 343, the safe workplace doctrine, that requires the premises owner to notify the employees of the contractor of any latent or concealed dangers, provided he knows of the condition or should know of it. The owner must furnish a safe place to work for the employees of an independent contractor as though they were his or her own employees. Here, not only did BG&E not have control of the work, the asbestos products were not "latent conditions" that pre-existed the independent contractors' taking control of the premises; rather, they were brought onto BG&E's premises by the contractors and any hazards therefrom arose after and as a result of the independent contract, and did not fall under section 343.

Roller Coaster Litigation in Maryland Results in Reversal of $2.5 Million Verdict

In Tierco v. Williams, the Maryland Court of Appeals reversed a $2.5 million jury verdict arising out of allegations of assault and battery, false imprisonment, and negligent supervision against an amusement park. The plaintiffs were a family that was forcibly removed from a roller coaster ride, after they refused to remove their four year old daughter from the roller coaster car. The daughter was under the height limit for the ride. However, the plaintiffs refused to obey the ride attendants' instructions, on the grounds that they had seen white children smaller than their daughter be allowed to go on the ride. After a 10-15 minute standoff in which the entire ride remained halted, the family agreed to get off. After that, there was an altercation with the amusement park's security officers, and everyone in the family except the four year old ended up in handcuffs. Then the entire family received letters barring them from the amusement park for life. None of the plaintiffs suffered any injuries more serious than minor cuts and bruises.

The case went to a jury trial in Prince George's County, Maryland, and the jury awarded a total of $1,000,000 in compensatory damages, and $1,500,000 in punitive damages. Although the complaint contained no mention of racial discrimination, race became the major focus of the trial.

The Court of Appeals of Maryland reversed and remanded for a new trial, holding that the jury’s verdict in favor of plaintiffs/Respondents is reversed because of a significant probability that the verdict was influenced by improper and irrelevant insinuations by their attorneys and certain of their witnesses of racial discrimination by alleged employees of the corporate defendant.

The Court also held that a motion for judgment notwithstanding the verdict is timely filed if filed within 10 days after the judgment to which it is addressed, even if at the time, a final judgment on all claims against all parties had not yet been entered.

Ironically, at trial the plaintiffs did not even contest that the four year old was too small to go on that ride:

It is clear that Six Flags had an objective basis to prevent Shaniqua from riding the ride. At one point during trial, Respondents’ counsel made it clear that Respondents did not dispute the decision of the Six Flags employees to keep her from riding. Indeed, an argument to the contrary would have been nonsensical because . . . [the four year old] would have been put in danger of injury had the Six Flags employees allowed her to ride.

It is also ironic that the Court of Appeals reversed even though the defense failed to raise any objections to the racial remarks at trial:

We come to this conclusion even though Tierco does not appear to have objected to Respondents’ race-based arguments and “evidence” during trial. “[O]rdinarily a party will not be permitted to raise on appeal an error to which he has not interposed a seasonable objection at trial.” . . . Only in rare and extreme cases should we elect to address on appeal an issue that was not preserved properly at trial.