Liability of DC Halfway House For Acts of Former Resident

In Smith v. Hope Village, Inc., No. 05-633 (RBW)(D.D.C. Apr. 12, 2007), the district court denied the defendant's motion for summary judgment, in which the defendant had argued in part that, as a matter of law, a halfway house owes no duty to unknown parties with whom it has no relationship for harm caused by an offender previously housed at the halfway house approximately five months prior to the offender's harmful act. 

An inmate named Kelly had been released from prison into the custody of the Hope Village halfway house in December, 2001.  (Although the opinion doesn't say, the pleadings indicate that the date was Dec. 12, 2001).  On March 7, 2002, less than three months later, Kelly was discharged from Hope Village and was placed under the supervision of the DC Court Services and Offender Supervision Agency.  About five months after that, on August 6, 2002, Kelly allegedly broke into a house in Silver Spring where he shot and killed two people -- one of whom was the plaintiff's nine year old daughter.

Kelly had a long rap sheet with numerous felonies, including one involving a loaded gun.

Plaintiff brought a wrongful death and survival action against Hope Village.  The theory of liability was that Hope Village was negligent in its supervision of Kelly, and as a result, the halfway house was responsible for his improper and untimely release into the community.  Plaintiff alleged that Hope Village knew, or should have known, of Kelly's violations of the terms of his conditional release while at Hope Village, yet it never disciplined him.

In its motion for summary judgment, Hope Village argued, among other things, that it does not owe any legally cognizable duty to the plaintiff, or to any parties with whom it has no pre-existing relationship, for injuries resulting from Kelly's criminal conduct five months after he was discharged from the halfway house program.  It also argued that there was no proximate cause due to a lack of foreseeability, and due to remoteness and superseding and intervening negligence.

In a lengthy opinion, Judge Walton rejected all of Hope Village's arguments, finding that Hope Village did owe a duty to people in the local community such as the plaintiff and her daughter, and that the question of foreseeability was for the jury.  Judge Walton also reinstated plaintiff's wrongful death claim, finding that the 3 year statute of limitations under the Maryland Wrongful Death Act applied, not the shorter period of limitations under the D.C. Act.

Nullum Tempus Doctrine Held Inapplicable In Maryland To Action By County for Breach of Contract

In Baltimore County v. RTKL Associates, Inc., No. 77, Sept. Term, 2003 (Md. April 9, 2004), the Court of Appeals has held that a county does not enjoy the benefit of nullum tempus, and that as a plaintiff, its action for breach of contract is governed by the three-year statute of limitations set forth in CJP sec. 5-101. The nullum tempus doctrine refers to the maxim, nullum tempus occurrit regi (time does not run against the King). This doctrine has been carried over in the common law in most States to some extent as a matter of public policy, to preserve the public rights, revenues, and property from injury and loss, by the negligence of public officers. The Court of Appeals reasoned that the nullum tempus doctrine is an aspect of the more general sovereign immunity of the State. Counties and municipalities do not enjoy common law sovereign immunity in contract cases, and therefore the entire underpinning of nullum tempus is absent for them.

The Court of Appeals explicitly stated it was not, in this case, disturbing the governmental/proprietary function test as applied to the nullum tempus doctrine in tort actions brought by a county. However, it certainly is an open question whether the Court will abrogate that rule in the future.

The Court also held that the requirement in CJP sec. 3-2C-02 that a claim filed against a "licensed professional" be supported by a certificate of merit from a qualified expert, applies only to an action against an individual professional, and does not apply to actions against a professional association. While the law permits a corporate practice of architecture and engineering under certain circumstances, only individuals may be licensed. Thus, the certificate of merit requirement is limited to actions against licensed individuals and is not applicable to suits against corporate firms.

Maryland Court of Appeals Cuts Back Limitations Defense Based On Failure To Timely File Certificate of Merit in Medical Malpractice Arbitration

In Navarro-Monzo v. Washington Adventist Hospital, et al., the Maryland Court of Appeals pruned back a defense based on the untimely filing of a Certificate of Merit in a Health Claims Arbitration proceeding.

Essentially, the Court held that the Health Claims Arbitration Board has statutory authority, for good cause shown, to grant extensions of the time to file a Certificate of Merit for any length of time. Therefore, as long as plaintiff's counsel files motions to extend the time for the filing of a Certificate of Merit that are supported by good cause, it is unlikely that this defense will be successful in the future.

The Court of Appeals stated, in pertinent part, as follows:

The several provisions at issue here may be read together with out any difficulty. Recognizing the harshness of the penalty it has exacted for failing to file a certificate within the initial 90-day period, the General Assembly has provided three distinct, but complementary, escape valves. First, it has required that an extension of up to 90 days be granted if the conditions stated in §3-2A-04(b)(1)(ii) are met. Second, in §3-2A -04(b)(5) it has provided that an extension without any fixed statutory limit shall be granted by the Director or panel chairman for good cause shown. And finally, in §3-2A-05(j), it has allowed either of those persons to lengthen the time for filing the certificate, again without any fixed limitation. Especially as the right to grant indeterminate extensions was enacted as part of the bill that imposed the requirement in the first instance, was stated twice in the law, and was not amended in the 1989 enactment, there can be no doubt that it remains fully intact.

Notwithstanding a mandatory extension under §3-2A-04(b)(1)(ii), the Director and the panel chairman retain the authority to grant a further extension, beyond 180 days from filing of the claim, upon a showing of good cause.

D.C. Court of Appeals Applies Statute of Limitations Defense Based On Inquiry Notice in Medical Malpractice Case

In Berkow v. Sibley Memorial Hospital, (D.C. Feb. 5, 2004), the Court considered the application of the discovery rule to the facts of this medical malpractice suit.

The plaintiff’s suit arose from a cancer misdiagnosis. Some of the defendants were added after the commencement of suit by an amended complaint filed more than four years after the plaintiff learned of the misdiagnosis, and those defendants raised a statute of limitations defense.

The issue was whether the 3 year statute of limitations began to run generally on the date that plaintiff learned that his primary physician misdiagnosed the cancer.

The Court held that the plaintiff was on inquiry notice of any wrongdoing of defendants who may have contributed to the injury as of the date he first learned of the misdiagnosis. If plaintiff had acted reasonably, he would have investigated the roles of all the doctors in failing to discover the cancer.

The Court rejected the argument that plaintiff’s case was saved by the discovery role.
Once a plaintiff is on inquiry notice, the benefit of tolling ends.

The Court also rejected application of the “continuing treatment rule.” The continuing treatment rule only tolls the statute of limitation until the doctor ceases to treat the patient in the specific matter at hand. In this case, it did not toll the statute generally as to unrelated health issues, even though one of the doctors continued to treat the plaintiff.

Maryland Court of Special Appeals Applies Statute of Limitations To Legal Malpractice Claim Based On Negligent Settlement

In Supik v. Bodie, Nagle, Dolina, Smith & Hobbs, P.A., No. 1697, Sept. Term, 2002 (Md. App. Oct. 29, 2003), the Court of Special Appeals reversed a Circuit Court ruling that granted summary judgment to the defendant law firm based on the statute of limitations. This opinion illustrates the difficulty of mounting a statute of limitations defense to a legal malpractice claim arising from an allegedly negligent settlement, where the settlement itself took place within the period of limitations.

The plaintiffs alleged that they had settled a toxic tort case against several pest control companies for less than full value. The defendant law firm had represented them in the prior litigation. They filed suit against the defendants for professional negligence, breach of fiduciary duty, negligent misrepresentation, and fraudulent misrepresentation.

The trial court had granted summary judgment because the plaintiffs had said that they felt under "duress" to settle the claim against their homeowners' insurer for $22,000 as of March 7, 1997, more than three years prior to the date they filed suit, March 31, 2000. The plaintiffs had settled with the tort defendants in the prior suit on April 1, 1997.

Essentially, the Court of Special Appeals found that no cause of action had arisen based on the initial settlement with the homeowner's insurer:

A trier of fact could find that no legally cognizable injury existed sooner than April 1, 1997 when the toxic tort case was settled and, hence, that a cause of action did not exist against Bodie, Nagle until that time. Before that time their claim remained viable, their entitlement was not fixed, and damages remained unliquidated. Further negotiation was possible. They continued to possess the right to present their case and their claim for damages to the court. With the execution of the settlement agreement their potential dissolved into a certainty -there could be no greater recovery than that agreed to. Because it appears that there were a number of allegedly negligent acts prior to that date, a jury could find no injury to the Supiks caused by those acts until the settlement actually occurred on April 1, 1997, and that there was no loss or detriment to them, as they could have at any point prior to the settlement decided not to settle.

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Due Process Argument Trumps Statute of Limitations Defense Under Virginia Law

In a recent opinion letter, Judge Keith of the Circuit Court of Fairfax County, Virginia overruled the defendants plea in bar based on the statute of limitations, on the grounds that plaintiffs' right of action had expired before his cause of action accrued, and to enforce the statute of limitations in that situation would deprive plaintiffs of their property without due process of law. McLean Crest, LLC v. Wickwire Gavin, P.C., 2003 Va. Cir. LEXIS 174 (Aug. 12, 2003).

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