Breaking ties with a client

by Trey Ross, Esq.breaking ties with client photo

Lawyer:

I’ve been working on behalf of a client for about three weeks. However, the client has become extraordinarily demanding and impatient. Needless to say, I’m not enjoying our interactions these days.

I think its best that the client and I part ways before matters get any worse. Am I allowed to break ties with a client before the legal issue is resolved?

Brief Answer:

Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. However, Md. Rule 1.16 and Md. Rule 2-132 govern the withdrawal of a lawyer from a case.

Guidelines for when withdrawal is mandatory and when withdrawal is optional are governed by Md. Rule 1.16. Also, the rule for determining when a lawyer may withdraw from an active proceeding is covered by Rule 2-132.

 

  1. Times when a lawyer’s withdrawal is mandatory

According to Maryland  Rules of Professional Conduct (“Rule”) 1.16(a), a lawyer must cease representation of a client if “(1) the representation will result in violation of the Maryland Lawyers’ Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged.”[1]

An example of a violation of Rule 1.16(a)(1) occurred in Atty. Griev. Comm’n of Md. v. O’Leary.[2] In O’Leary, a young female attorney represented a man in a divorce and child custody action.[3] During the course of the proceedings, the attorney began a romantic relationship with her client and allowed the man to move into her home.[4] Subsequently, the attorney continued to represent the client and negotiate his child support obligations while simultaneously paying the client’s child support.

These actions were a clear violation of Rule 1.7(a) which provides: “…a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited…by a personal interest of the lawyer.[5]

Also, an example of a violation of Rule 1.16(a)(2) occurred in Atty. Griev. Comm’n v. Patton.[6] In Patton, an attorney suffered from an addiction to a narcotic known as oxycodone.[7] Despite his addiction, the attorney continued to enter agreements to represent clients in various criminal law matters.[8] However, the attorney failed to attend his clients’ court proceedings, and also failed to respond to judges, clients, and opposing counsel.[9] As a result, the court held that the attorney violated Rule 1.16(a)(2) by neglecting to withdraw from representing his clients.[10]

Since withdrawal is mandatory under the above mentioned circumstances, failure to withdraw can lead to sanctions such as suspension or disbarment.

Note: If you are a lawyer suffering from a drug addiction, you don’t have to face your problems alone. The MSBA’s Lawyer Assistance Program was created to help you with your treatment and recovery. Contact Lisa Caplan, Program Counselor, by phone at 443-703-3042 or by email at lcaplan@msba.org.

You may also benefit from visiting the organization’s website. To do so, go to http://www.msba.org, click on “departments” then click on “Lawyer Assistance Program.”

 

  1. Times when a lawyer’s withdrawal is optional

Although the situations above highlight times when a lawyer must withdraw his representation, the rules also mention a number of instances when withdrawal is optional:

According to Rule 1.16(b), in instance other than those involving tribunals, withdrawal is optional if:

“(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.”[11]

The rules listed above are pretty self-explanatory. As a result, there have not been many cases or ethics opinions published on the topic.

Still, a careful reading of the published cases and the comments that follow the rule highlight two ethical concerns that should be used when examining actions under Rule 1.16. First, a critical consideration is whether the lawyer’s withdrawal will have an adverse impact on the client’s interest.[12] Second – and even more important – is whether the client has misused the lawyer’s services in the past.[13] If so, the lawyer may withdraw regardless of the effect the withdrawal has on the client’s interest.[14]

Thus, a lawyer has the right to inform the client of his intent to cease representation, so long as the attorney was not appointed by a tribunal,[15] and the attorney is not currently representing the client during an active proceeding.[16]

See Section C below for the process of withdrawing during active court proceedings.

 

  1. Withdrawal during court proceedings

In addition to the general rule regarding withdrawal discussed above, Rule 2-132 governs withdrawal during court proceedings.[17] As indicated in a state ethics opinion, in general,  Rule 2-132 “permits an attorney to strike his appearance (i) when the client has another attorney of record, or (ii) by motion accompanied by the client’s written consent or the moving attorney’s certificate that notice of intent to withdraw from representation has been mailed to the client at least five days prior the filing of the motion.”[18]

Still, the Court may deny the motion if withdrawal of the attorney’s appearance would cause undue delay, prejudice, or injustice.[19]

As long as the attorney provides the client with ample notice of his intent to withdraw, the court has tended to permit the attorney to end his representation of the client. For example, in Serio v. Baystate Props., the court approved an attorney’s withdrawal on the day of trial since the attorney had given the client notice of her intent to withdraw eight weeks prior to the day of trial.[20] Likewise, in Das v. Das, the court upheld an attorney’s right to withdraw since the attorney notified the client of her intent to withdraw approximately nine weeks prior to a pendente lite child support hearing.[21]

So, an important consideration to the court’s determination of whether withdrawal during a proceeding will cause undue delay, prejudice, or injustice is whether the client was given sufficient notice of the need to find a new attorney prior to a hearing or trial.

 

Summary:

Rule 1.16 sets guidelines for determining when withdrawal is mandatory and when it is optional. In addition, Rule 2-132 provides the appropriate means of withdrawing during a legal proceeding. A lawyer interested in withdrawing should consider each of these rules and their accompanying comments before acting.

[1] Maryland Rules of Professional Conduct 1.16(a) (2013).

[2] 69 A.3d 1121 (Md. 2013).

[3] Id.

[4] Id.

[5] Maryland Rules of Professional Conduct 1.7(a) (2013).

[6] 69 A.3d 11 (Md. 2013)

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Maryland Rules of Professional Conduct 1.16(b) (2013).

[12] Id. at cmt. 6 (providing that a lawyer who has been discharged by a client with diminished capacity, should still make a “special effort to help the client consider the consequences and may take reasonably necessary protective action…”); Attorney Grievance Comm’n v. Dietz, 629 A.2d 678 (Md. 1993) (reiterating that an important consideration when determining if a lawyer may withdraw is whether it can be accomplished without material adverse effect on the interests of the client).

[13] Maryland Rules of Professional Conduct 1.16 cmt. 7 (providing that “withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client”).

[14] Id.

[15] Maryland Rules of Professional Conduct 1.16(c) (2013) (providing that “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation”).

[16] Md. R. 2-132 (Michie, LEXIS through 2013) (providing the procedure for withdrawing representation during an active proceeding).

[17] Id.; Md. State Bar Ass’n Comm. on Ethics, Op. 1994-8 (1994) (providing that “the legal aspects of withdrawal of an attorney’s appearance in a proceeding in this State is governed by the Maryland Rules of Procedure, and specifically Rule 2-132”).

[18] Id.

[19] Id.

[20] 60 A.3d 475 (Md. Ct. Spec. App. 2013) (providing that the trial court did  not abuse its discretion when it allowed an attorney to withdraw representation since the attorney notified the client that she was ending her private practice to work for the federal government eight weeks prior to the trial).

[21] 754 A.2d 441 (Md. Ct. Spec. App. 2000).

Consultation Fees in Maryland

by Trey Ross, M.Ed., Esq.agreement

Lawyer: I’ve heard of attorneys charging a nonrefundable consultation fee or an engagement fee. I would like to know if it’s all right for my firm to request such fees. Can we do that?

Brief answer: In almost every case, a Maryland lawyer will be in violation of the Maryland Lawyer’s Rules of Professional Conduct if he charges a nonrefundable fee. Still, for lawyers who do, you should be well-versed in the limited exceptions (discussed below) in which Maryland courts have sided with attorneys on this topic.

  1. Consultation fees in general

A consultation fee is usually a nonrefundable fee paid to the attorney by the client – or the potential client – in exchange for the lawyer’s time at their initial meeting. Because the written agreement between the parties indicates that the fee is nonrefundable, attorneys often place the funds in their personal accounts rather than the state mandated client escrow account.

Lawyers who charge a nonrefundable fee and those who place such payments in anything other than the client trust account[1] will likely face reprimand or disbarment if challenged by the Attorney Grievance Commission.[2]

To start, lawyers are prohibited from charging unreasonable fees.[3] Ordinarily, at the point of consultation, the lawyer has not completed any legal work which should require a fee. Therefore, consultation fees are almost always unreasonable since they are unearned.[4]

In addition, nonrefundable consultation fees are contrary to public policy. A nonrefundable fee agreement “undermines the client’s understanding of her rights and may discourage a client from seeking refunds to which the client may be entitled.”[5] Also, non-refundable fees “may discourage the client from discharging her lawyer for fear the client will not be able to recover advance fees for which the lawyer has yet to perform any work.”[6]

  1. The Engagement Fee: A consultation fee exception

Some lawyers have tried to obtain nonrefundable-upfront-fees by calling the fee an “engagement fee.”[7] An engagement fee is a nonrefundable fee that is paid upfront and does not have to be deposited in a client escrow account since it automatically becomes the property of the attorney.[8]

Maryland’s highest court has provided that an attorney can require an engagement fee when he or she “performs a service or provides a benefit to the client in exchange for the fee.”[9] However, an engagement fee can be requested in a small number of situations; simply calling a fee an engagement fee will not suffice.[10]

One instance where Maryland has recognized that an engagement fee can exist is when “the attorney is deprived [of] the right of rendering services for the other party” by meeting with the potential client.[11] For example, as discussed in Stinson, “in certain counties [in Maryland] one spouse will attempt to prevent his/her mate from obtaining representation [in divorce proceedings] by arranging initial conferences and thereafter discharging skilled family practitioners. For this reason, those specialists demand what appear to be high–if not exhorbitant [sic]–initial consultation fees.”[12]

So, if meeting with a potential client forces the attorney to turn away work that he or she would have otherwise accepted, the attorney can charge an engagement fee.[13]

Other instances in which Maryland has implied – via dicta – that an attorney could be justified in charging an engagement fee occur when the fee is paid “in consideration of [an attorney’s] expertise and skill in [a particular area of law],” paid for an attorney’s act of “prioritizing [the client’s] case over other work,” paid because the attorney “would need to hire additional help to take on the case,” or paid so that the attorney “could keep up with” a particular field of law.[14]

Note: It is odd how the court suggests that an attorney can charge a nonrefundable fee for offering his “expertise” yet an attorney would be in violation of the rules if he holds himself out as an expert.[15] Likewise, the other examples mentioned in the paragraph above seem to fall under general duties of practitioners, so one would think that lawyers cannot charge a special fee for such actions.[16]

Summary:

Nonrefundable consultation fees are generally unreasonable and are arguably a violation of public policy. In most instances, a nonrefundable fee will be a violation of the Maryland Lawyer’s Rules of Professional Conduct, and can lead to disbarment or other sanctions. Thus, a lawyer would be wise to avoid using them altogether.

Although the court has provided an engagement fee exception, the risks associated with improperly charging a nonrefundable fee far outweighs the short-term windfall the lawyer may receive from the client.

[1] Md Lawyers’ Rules of Prof’l Conduct R. 1.15(a) (West, Westlaw through 2/1/2013) (requiring all client funds to be placed in a client trust account until earned by the attorney).

[2] Nonrefundable Fees? Maryland Courts (8/26/2013 1:50 AM), http://www.mdcourts.gov/attygrievance/docs/

articles/barjournalart4.pdf (providing “[a]n attorney who states that her advanced fee is non-refundable is…misleading her client”).

[3] Md Lawyers’ Rules of Prof’l Conduct R. 1.5(a) (West, Westlaw through 2/1/2013).

[4] E.g., Attorney Grievance Comm’n of Md. v. Stinson, 50 A.3d 1222 (Md. 2009) (providing that an attorney was in violation of the Maryland rules for refusing to a refund a client for a “nonrefundable” upfront fee).

[5] Nonrefundable Fees? Maryland Courts (8/26/2013 1:50 AM), http://www.mdcourts.gov/attygrievance/docs/

articles/barjournalart4.pdf (citing In re Sather, 3 P.3d 403 (Colo. 2000)).

[6] Id.

[7] Stinson, 50 A.3d 1222.

[8] Attorney Greivance Comm’n of Md. v. Kreamer, 946 A.2d 500, 542 n.16 (Md. 2008) (citing In re Gray’s Run Technologies, Inc., 217 B.R. 48, 53(Bankr. M.D. Pa. 1997) and providing that engagement fees are “earned upon receipt”); Md. State Bar Ass’n Ethics Op. 92-41 (1992)(providing that “[i]f the retainer is ‘an engagement fee’ and if it is reasonable under the dictates of Rule 1.5(a), the fee can be placed in the firm’s general account).

[9] Stinson, 50 A.3d at 1243 (quoting In re Sather, 3 P.3d 403, 411 (Colo. 2000)).

[10] Id. at 1222.

[11] Md. State Bar Ass’n Ethics Op. 92-41.

[12] Stinson, 50 A.3d at 1232-1233 (citing a lower court’s discussion of Melvin Hirshman, Aspects of Attorneys’ Fees: Engagement Fee, Non-Refundable Retainer, Limitations on the Ability of Counsel to set a Fee, Maryland Bar Journal, Apr. 17, 1984, at 13).

[13] Id. at 1244.

[14] Id.

[15] Md Lawyers’ Rules of Prof’l Conduct R. 7.4 (West, Westlaw through 2/1/2013) (providing “[a] lawyer shall not hold himself or herself out publicly as a specialist”).

[16] E.g., Md Lawyers’ Rules of Prof’l Conduct R. 1.3 (West, Westlaw through 2/1/2013) (providing “[a] lawyer shall act with reasonable diligence and promptness in representing a client”); Md Lawyers’ Rules of Prof’l Conduct R. 1.1 (West, Westlaw through 2/1/2013) (providing “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”).

Premises Liability: Regular people differ from businesses

by Trey Ross, M.Ed., Esq.Holiday party

Homeowner: I’m hosting a Christmas party at my home this year. Because of the way my house is designed, guests have to climb a set of stairs once they enter the front door. A few of my guests are in their early 70s, so I suspect they may have trouble with the stairs.

I’ll also be serving alcohol and there will be teenagers at the party as well.

I know businesses can be sued when a person is hurt on a company’s property. What should I do to protect myself from liability during my holiday party?

Brief Answer: Unlike businesses, a homeowner hosting a party only has to warn his guests of known dangers that are not obvious.

Premises Liability: Regular people differ from businesses

Businesses and regular people have different relationships with those invited onto their respective properties; thus, Maryland recognizes that they also have different duties.[1] While businesses have a duty to make reasonable efforts to investigate potential hazards and to make their properties safe for their invitees,[2] homeowners who invite social guests onto their property have much smaller burden.[3]

Maryland follows the rule outlined in the Restatement (Second) of Torts which provides that a person who hosts others at his home is only liable for physical harm to his guests when:

(1) the host knows about or should know about a hazard,

(2) the hazard presents an unreasonable risk of harm to guests,

(3) the host should expect that guests will not discover or realize the hazard,

(4) the host fails to warn the guests of the hazard or makes it safe, AND

(5) the injured guest did not know about or have reason to know about the hazard.[4]

Each of the elements above must be satisfied if an injured guest is to hold his host liable. Further, “[t]he host has no duty to warn of dangers or defects of which he had no knowledge or means of knowledge, nor does he have a duty to give a warning of a condition which should be obvious to the guest.”[5]

For example, in Paquin, the defendants allowed the plaintiffs, Mr. and Mrs. William Paquin, to spend a weekend at their home while the plaintiffs were in town visiting.[6] The bedroom provided to the plaintiffs contained a small “scatter” rug on each side of the plaintiffs’ bed, and the floor was made of polished hardwood.[7] As Mrs. Paquin prepared for bed, she stepped on the scatter rug and the rug slipped across the hardwood floor. As a result, Ms. Paquin fell and was injured.[8]

Mr. and Mrs. Paquin sued the defendants believing that the hosts were liable for the injury Mrs. Paquin sustained while on their property. However, the Court held that the defendants were not liable since the hazard posed by a rug lying on a polished hardwood floor was obvious and it was not inherently dangerous.[9]

A second example of how homeowners have a lesser duty to their guests was examined by the Fourth Circuit (i.e., federal court) a few years ago in the case of Kirchoff v. Abbey.[10] In Kirchoff, the plaintiff, Mark Kirchoff, attended a party where underage people were drinking unsupervised.[11] While at the party, the plaintiff was attacked by a group of party goers and was struck in head by an empty vodka bottle.[12] The plaintiff suffered permanent injuries as a result of the attack, and he brought a suit against the owner of the property and the host of the party.[13]

The court held that the plaintiff was not entitled to recover from the property owner since there was no evidence that the defendant knew or should have known about the underage drinking.[14] Likewise, the court held that the plaintiff was not allowed to hold the host liable since, among other things, the plaintiff “was a social guest who could discover the risks posed by the underage drinking party.”[15]

Summary:

Individuals who host holiday parties should warn their guests of any nonobvious hazard on the property. Potentially dangerous conditions that are obvious (e.g., stairs and intoxicated guests) are not things homeowners should be overly concerned with since the law expects houseguests to protect themselves from observable hazards. Regular people who invite others into their homes for purely social engagements are not going to be held to the same standard as businesses who invite people to their properties for commercial reasons.

[1]  Paquin v. McGinnis, 246 Md. 569, 573 (1967) (providing that “[a] business visitor or invitee who enters the private premises at the express or implied invitation of the occupier has a relationship with the invitor much different from that of a social guest and a host”).

[2] Id. (providing that a business owner “is under an affirmative duty to protect…not only against dangers of which he knows, but also against those which with reasonable care he might discover”).

[3] Id. at 574 (providing that “[i]t would be too much to ask a host to provide greater care for a guest, who benefits from his host’s gratuitous hospitality, than the host provides for his own family”);  Voelker v. Delmarva Power & Light Co., 727 F. Supp. 991, 998-999 (D. Md. 1989) (providing that “a social guest is considered a licensee by invitation. Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265 (1972). A licensee by invitation takes the property as the owner and the members of the owner’s family use them”).

[4] Paquin, 246 Md. at 572.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Paquin, 246 Md. at 574 (providing that “[t]he use of hardwood, polished, waxed floors, furnished with rugs, in homes is a matter of common knowledge; and this type of floor and furnishing is not inherently dangerous or a hazard to the safety of a social guest”).

[10] 2011 U.S. Dist. LEXIS 114838, 13-14 (D. Md. Oct. 5, 2011).

[11] Id. at 4.

[12] Id. at 4-5.

[13] Id. at 5.

[14] Id. at 13-14 (providing that since “no reasonable jury could find that Windridge [the property owner] had actual or constructive notice of the underage drinking parties Windridge could not have foreseen the harm that would result from allowing such parties to continue occurring and so had no duty to shut them down”).

[15] Id. at 20.

Individualized Education Programs (IEPs), FAPE, and student placement: Questions answered

by Trey Ross, M.Ed., Esq.Student-IEP

Parent: “My child is failing and his teachers are ignoring his IEP. I’d like to have my child taken out of public school and placed in a private school that can better serve him. I’ve heard that I can get the school district to pay for his private school education; is that true?”

Brief answer: Possibly. If a public school fails to provide your child with a free appropriate public education by neglecting to implement “substantial and significant provisions” outlined in his IEP, private school placement at the district’s expense may be an option if doing so is appropriate.

  1. What is an IEP?

Under the Individuals with Disabilities Act (“IDEA”), States receiving federal aid must develop an individualized education program (“IEP”) for each child with a disability to ensure that it offers a free appropriate public education (“FAPE”) to all children.[1] The IEP must be in effect at the start of each school year,[2] it will need to consider the “academic, developmental, and functional needs of the child.”[3]

  1. Is a failure to implement an IEP a denial of a FAPE?

Typically, to determine if a child has been denied a FAPE, the court will decide (1) whether the school violated the procedural requirements of the IDEA, and (2) whether the IEP is “reasonably calculated to enable the child to receive educational benefits.”[4] The latter requirement generally protects a school from liability if its actions further the child’s education even if the education received is not the finest.[5]

However, when a school unilaterally chooses not to implement significant provisions of a child’s IEP (i.e. when it violates the procedural requirements of the IDEA),[6] the court has held that a FAPE is denied regardless of whether the child was resilient enough to receive some educational benefit.[7]

Thus, a FAPE requires that instruction be catered to the child’s IEP.[8] However, a failure to implement all the provisions of the IEP is not a denial of FAPE[9] since a FAPE is denied only if the school fails to implement “substantial and significant provisions” of the IEP.[10]

For example, in Manalansan, a first-grader with physical impairments that limited his ability to maintain balance while walking received an IEP which specified that he was to be aided when traveling through the school building. The school was also to provide the child with adult aides to assist him in a number of ways. However, the aides often came to school late, left early, and were frequently absent. As a result, the child was seriously injured when he was knocked to the ground by a group of children as he was going to his locker.

The court held that the presence of an aide was a substantial and material provision in the child’s IEP since the IEP mentioned that services could not be rendered without the help of an aide.[11] In essence, the school said that an aide was necessary to provide a FAPE, and the court determined that failure to provide an aide constituted a denial of a FAPE even if the child managed to learn without the aide.[12]

Moreover, if a public school denies a FAPE, the court may decide that the parent is entitled to enroll the child in a private school at the public’s expense.[13] See Section C below.

 

  1. Private school placement: Compensatory Education

A court may only award a parent with compensation for a private school education if (1) the public school is unable to meet significant provisions of the child’s IEP and thus incapable of providing a FAPE,[14] and (2) a private school can meet the provisions of the child’s IEP thereby making placement in a private school appropriate.[15]

For example, in School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts (“Burlington”), the US Supreme Court held that reimbursement of private school expenses was the appropriate remedy for the public school’s failure to provide a FAPE.[16] In Burlington, a child qualified for special education services but a specialist stated the child required education in a “highly specialized setting for children with learning handicaps . . . such as [the state-approved private school].”[17] Since the child’s public school was unable to meet his specific learning needs and the private school could, the child was enrolled in the private school at the public’s expense.

Summary:

Failure to follow the all of the requirements of an IEP will not necessarily give you a right to have your child placed in private school at the public school’s expense. To qualify for such an arrangement, the public school must fail to provide your child with a FAPE by neglecting to implement significant provisions outlined in the IEP. Also, there must be a private school capable of providing your child with the requirements outlined in the IEP or else placement in a private institution will not be appropriate.

[1] 20 U.S.C. §1412(a)(4) (GPO 2011) (providing that,  among other things, “[a] State is eligible for assistance…if the State submits a plan that provides assurances…[that it] has in effect policies and procedures to ensure that the State…[has an IEP for each child with a disability]”); Forest Grove Sch. Dist. v. T. A., 129 S.Ct. 2484 (2009).

[2] Id. § 1414(d)(2).

[3] Id. at 1414(d)(3)(a)(iv); Forest Grove Sch. Dist., 129 S.Ct. at 2503 (providing “[a]n IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services”).

[4] Manalansan v. Bd. of Educ., 2001 U.S. Dist. LEXIS 12608, 41 (D. Md. 2001).

[5] MM v. Sch. Dist., 303 F.3d 523, 526 (4th Cir. 2002) (providing that “[t]he IDEA does not, however, require a school district to provide a disabled child with the best possible education”).

[6] Manalansan, 2001 U.S. Dist. LEXIS 12608 at 45 (providing “[t]he school, however, does not have the discretion to decline to implement the services listed in the IEP or decide unilaterally, without initiating an IEP meeting to institute a change, that a service listed in the IEP need not be provided”).

[7] Id. at at 41 (providing that “[t]he Fourth Circuit has held that ‘failures to meet the Act’s procedural requirements are adequate grounds by themselves’ for finding a denial of FAPE, apparently without an inquiry into whether educational benefit was conferred on the student despite of the procedural violation” quoting Hall v. Vance Cnty Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)).

[8] J. P. v. Cnty Sch. Bd., 516 F.3d 254, 257 (4th Cir. 2008) (providing that “[a] FAPE ‘consists of educational instruction specially designed to meet the unique needs of the handicapped child. . .supported by such services as are necessary to permit the child to benefit from the instruction’” quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)).

[9] Manalansan, 2001 U.S. Dist. LEXIS 12608 (providing “to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit” quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000)).

[10] Id.

[11] Id.

[12] Id.

[13] § 1415(i)(2)(C)(iii) (providing that a parent may bring a civil action and the court may provide relief as it deems appropriate).

[14] Forest Grove Sch. Dist.. 129 S.Ct. at 2488 (providing that “when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the district to reimburse the parents for the cost of the private education”).

[15] Id. at 129 S.Ct. at 2504  n.9 (U.S. 2009) (providing “courts may grant reimbursement under § 1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate”).

[16] 471 U.S. 359, 361 (1985).

[17] Id. at 362.

Tailgating

by Trey Ross, M.Ed., Esq.

Plaintiff: The car wreck was her fault.driving-in-tunnelA tailgating driver rear-ended me, and I’ve had to undergo back surgery as a result of the collision. How can I ensure that I obtain what’s needed to cover my medical expenses and lost wages?

 

Brief Answer:

To prove that the tailgating driver is financially responsible for your injuries, you will need to show that her actions were negligent (i.e., careless) by meeting all of the elements of a negligence suit.

 

Requirements of a negligence suit

 

Maryland requires the plaintiff to show four things when suing for negligence. Those four elements are duty, breach, causation, and injury.[1]

 

  1. Duty and breach

 

To hold someone liable for negligence, one will have to show that the other person had a responsibility (i.e., a duty) to obey a certain standard of care in order to protect people like you – the injured driver – from harm.[2] The phrase, “standard of care,” may be confusing but think of it this way: you will need to show that the other driver had a responsibility to behave in a way that would have ordinarily prevented the harm you suffered.

 

Here, the injured driver believes that the lady who hit him from behind was trailing him too close, and thus caused the wreck. In Maryland, it is illegal to trail a person “too close.”[3] The Maryland transportation statute provides that “[t]he driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the other vehicle and of the traffic on and the condition of the highway.”[4]

 

Thus, the trailing driver – the defendant – had a duty that was defined by a state statute. When a duty is required by a statute, violation of the statute can be used as evidence of negligence.[5] One way to prevail requires that you – the plaintiff – show that the defendant:

  1. violated the tailgating statute (i.e., there was a breach of a duty),
  2. the plaintiff is a member of the specific class of people the statute was meant to protect, and
  3. the breach “proximately caused” the plaintiff’s injuries.[6]

 

Note: Proximate cause will be discussed under item “c” below.

 

  1. Violation of the tailgating statute (i.e., there was a breach of a duty)

 

Although there is a statute, is it not always clear as to whether there was a breach of the statutory duty to trail at a reasonable distance. Maryland’s highest court has held that whether a person was trailing at a safe distance depends on the facts and circumstances of each case.[7] When there is a possibility that reasonable people might differ on the issue of whether a driver was trailing at a reasonable distance, the question becomes one that a jury will have to decide.[8]

 

So, to prove that there was a breach, the plaintiff will need to produce evidence that the trailing driver was traveling too close. For example, if you – the plaintiff – looked in your rearview mirror prior to the wreck and saw that the trailing driver was five feet away from your car as you were driving 70 mph down the highway, your “testimony” can be used as evidence. Yes, testimony is evidence. Likewise, if you recall that the collision occurred less than two seconds after you stepped on your brake – having slowed down from 70 mph to 60 mph – this could also be used to calculate the approximate distance the other driver was trailing, and offered as evidence.

 

In addition, evidence can include a host of other material. Testimony of other witnesses, expert testimony, pictures of the accident, statements made by the defendant, and even the driving history of the defendant could possibly be admissible as evidence that the defendant more than likely breached her duty to travel at a safe distance.

 

  1. Actual loss or damage resulting to the plaintiff from the defendant’s conduct

 

This part is pretty straight forward. The plaintiff will need to provide evidence that he’s suffered some type of injury. For example, the medical bills the plaintiff incurred could be used to satisfy this requirement.

 

 

  1. The breach proximately caused the plaintiff’s injuries

 

To be the proximate cause,(1) the defendant’s actions must have been the “cause in fact” of the plaintiff’s harm, AND (2) the “legally cognizable cause” of the harm suffered.[9]

 

  • Cause in Fact

 

Causation-in-fact concerns whether the defendant actually caused the harm.[10] Maryland courts use two tests to determine whether a defendant’s actions were the cause in fact of a plaintiff’s injury: the “but for” test and the “substantial factor” test.

 

The but for test is used when a single act of negligence allegedly caused the plaintiff’s harm. Under the but for test, “-fact is found when the injury would not have occurred absent or ‘but for’ the defendant’s negligent act.”[11] For example, suppose a defendant negligently runs a red light and collides with a driver (“Good Driver”) who was lawfully crossing the intersection. It could be said that the collision with Good Driver would not have occurred but for the defendant running the red light.

 

The substantial factor test is used when two or more independent acts of negligence supposedly caused the injury. Maryland courts provide that “causation-in-fact may be found if it is ‘more likely than not’ that the defendant’s conduct was a substantial factor in producing the plaintiff’s injuries.”[12]

 

  • Legally cognizable cause

 

In addition to being the cause in fact, courts require that the defendant’s negligent act be the legally cognizable cause. Taken at face value, the words “legally cognizable cause” make little sense. However, if you examine the court’s explanation of the phrase, you will find that it simply means that the harm caused must have been foreseeable.[13] Thus, if the harm caused by the negligent act was highly extraordinary, the court will not attribute liability to the defendant.

 

Summary:

 

If you, the plaintiff who was rear-ended, can provide credible evidence – even if it is only testimonial evidence – that the trailing driver was following too close, you can use Maryland’s tailgating statute to show that there was a duty and that it was breached. The plaintiff will also need to provide evidence of his injuries, and show that the trailing driver’s negligence was the proximate cause of his injuries. To satisfy the proximate cause requirement, the plaintiff will need to show the following:

  1. His injuries would not have occurred but for the defendant carelessly trailing him too closely, and
  2. His injuries were a foreseeable result of the defendant’s negligent conduct

 

NOTE: There are two topics that where discussed here but will be discussed in future publications.

  1. Maryland law prohibits recovery to a plaintiff whose own acts of negligence contributed to his injuries unless the defendant had the last clear chance to avoid the harm to the plaintiff. Thus, contributory negligence will likely be a defense that the defendant will raise as a means of escaping liability for his careless actions.

 

So, in next month’s publication, we will discuss the contributory negligence defense and how a plaintiff may be able to obtain justice by countering that defense. 

 

  1. Also, the doctrine of res ipsa loquitor (“RIL”) does not apply in this case since rear-end collisions involving two moving vehicles may or may not involve negligence.[14] We’ll discuss RIL in future publications as well.

 

 

 

[1] E.g., Schultz v. Bank of Am., 990 A.2d 1078, 1086 (Md. 2010) (citing the four elements of negligence).

[2] E.g., Doe v. Pharmacia & Upjohn Co., 879 A.2d 1088, 1092 (2005) (providing that the threshold question is whether there was a duty owed).

[3] MD Code Ann., Transp., § 21-310 (LexisNexis 2013).

[4] Id.

[5] Brooks v. Lewin Realty, 835 A.2d 616, 620-621 (Md. 2003).

[6] Id. at 621.

[7] Sieland v. Gallo, 71 A.2d 45 (Md. 1950) (providing “[a]s to how closely one automobile should follow another depends upon the circumstances of each case, namely, the speed of such vehicles, the amount of traffic, and the condition of the highway”).

[8] Brehm v. Lorenz, 112 A.2d 475 (Md. 1955).

[9] Pittway Corp. v. Collins, 973 A.2d 771, 786-792 (Md. 2009).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Brehm v. Lorenz, 112 A.2d 475, 508-509 (Md. 1955).

My child was attacked by a bully. What can I do?

by Trey Ross, M.Ed., Esq.

No Bullying Pic

Topic: My child was attacked by a bully. What can I do?

Brief Answer:

Bullying can have harmful effects on child’s mental health. Thus, depending on the severity of the child’s suffering, the parent may need to consider counseling for a victim of bullying.[1]

As for legal remedies, there are a number of ways a parent can assert a child’s rights against a bully. Two legal solutions include (A) seeking a judgment of restitution for the physical harm caused to the child and/or (B) obtaining payment for physical harm caused to the child through a civil lawsuit.

 

  1. Seeking a judgment of restitution for physical harm caused to a child

Simply put, restitution is the repayment of expenses the victim had to pay as a result of being wronged. As I will discuss below, a judgment of restitution is a remedy provided though the state’s criminal procedure process. Such a judgment is relatively simple to obtain, and it will involve law enforcement, prosecutors, and/or judicial officials.[2] It is also important to note that the judge presiding over the criminal matter can choose not to award restitution even if he acknowledges that the victim is deserving of restitution from the wrongdoer.[3]

However, as I will discuss in section B below, the victim will still be able to bring a civil suit against the wrongdoer.[4]

 

  1. How much can a victim be awarded in restitution?

In Maryland, a court can order up to $10,000 in restitution in cases involving bad acts committed by children under the age of 18.[5] The $10,000 cap is the limit per child for expenses that resulted from a single incident, and the court can order the child or the child’s parent (or both) to pay restitution to the victim.[6]

 

However, if the victim requires more than $10,000, the victim can sue the wrongdoer for any additional amounts required.[7]

  1. What injuries can trigger a judgment for restitution? What evidence is necessary?

The victim who has been injured can be awarded a judgment of restitution for any of the following:

(i) medical, dental, hospital, counseling, funeral, or burial expenses or losses;

(ii) direct out-of-pocket loss;

(iii) loss of earnings; or

(iv) expenses incurred with rehabilitation

 

Note: This is not a complete list of those who can seek restitution since the law also provides protection for victims of things like property damage.

 

To prove the amount owed to the victim, “a written statement or bill for medical, dental, hospital, counseling, funeral, or burial expenses…”[8] can be submitted but other forms of proof can also be accepted if the court determines that they are “reliable, admissible, and established by a preponderance of the evidence.”[9]

 

Thus, the victim should keep a copy of all receipts and records related to the expenses incurred so that they can be presented to the court.

 

Note: While the “preponderance of the evidence” phrase seems intimidating, it simply means that the evidence is more likely true than not true.

 

  • How does a victim go about seeking restitution?

The state has made it relatively simple and inexpensive for a victim to seek a judgment of restitution. For example, the victim does not have to pay a private attorney to seek this judgment since it can be handled by the local State’s Attorney’s office (i.e., a local prosecutor)[10] who will not require a fee.

 

However, the victim should be aware that restitution is a part of a criminal sentence.[11] So, as a part of obtaining restitution, the victim will have to make a State’s Attorney, law enforcement officer, or judicial official aware that a crime has been committed. After notifying the appropriate officials, the victim will be advised of his legal rights which include the right to restitution.[12]

 

  1. Is restitution guaranteed to the injured victim?

While seeking restitution is a relatively simple process, obtaining restitution through the criminal prosecution of the defendant may be impossible.[13] Maryland law provides that the court does not have to grant a judgment for restitution if (1) the defendant (or the person obligated to pay the victim) does not have the ability to pay, or (2) there are extenuating circumstances that make a judgment of restitution inappropriate.

Again, the victim may still be able to sue the defendant for the harm caused.[14] See Section B below.

  1. Obtaining payment for damages through a civil lawsuit

A child who has been injured as a result of bullying may be entitled to sue. Bullying may come in the form of several types of bad acts classified as “intentional torts.” For example, assault and battery are both “actionable” torts – that is, a victim has a right to sue the person that committed the assault and/or battery.

While some may assume that suing a child would be useless since most kids do not have income or assets, the child-bully is not the only person who could be held financially responsible. For example, the law allows the victim (or his representative) to sue both the child-bully and the bully’s parent if the parent directed, encouraged, or approved of the child’s act by accepting benefits from such act.

Note: Notice how this differs from the restitution law discussed above. When seeking restitution through criminal proceedings, the statute does not say that the victim has to prove that the parent of the child-bully approved of the bully’s acts, etc.

Also, unlike a judgment for restitution which is limited to $10,000, the amount of economic damages (e.g., medical bills) that the victim can sue for is not limited. In addition to repayment of expenses, the wrongdoer may also be responsible for punitive damages.

Punitive damages are a special type of payment that the court may require the wrongdoer to pay as a form of punishment for the bad act.

  1. What is assault?

An assault does not necessarily require physical contact. The key to an assault claim relates to a victim being placed in fear of physical contact. If someone’s actions would have placed an ordinary, reasonable person in fear of being harmed by the physical contact, then the victim has a basis for filing a suit for assault.[15]

Maryland’s highest court has held that an assault is “any unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact.”[16] Further, the tort of assault protects a person’s right to be free of the fear of a possible harmful or offensive contact by another person. This is a long held principal in Maryland and is based on the recognized right to be free from fear of violence since such fear is likely to result in breaches of the peace.[17]

Thus, the tort of assault occurs when a person (1) illegally attempts to cause harm to another person or illegally attempts to touch a person in an offensive way, or (2) attempts to place a person in fear that he or she will be harmed or offended by an illegal contact.[18]

So, an example of an assault could arise when a bully swings his fist at a victim – intending to strike the victim – but misses and thus fails to hit the victim. If the court finds that an ordinary and reasonable person would have been placed in fear by the action, the victim could bring an assault claim (i.e., sue the bully for intentionally placing him in fear of being struck).

The swinging of a fist is just one way a bully could assault a victim. Depending on the circumstances, an assault may be caused by other acts of aggression like “bucking” at the victim or by verbal threats (e.g., the words “I’m about to black your eye!” could constitute an assault in some instances.)

An assault can become a battery.[19] See the discussion of battery below.

Note: Maryland’s criminal law recognizes various degrees of assault which were not discussed here.

  1. What is battery?

If a bully has intentionally touched your child without consent, you may be able to sue for battery. Maryland’s highest court provides that:

“A battery is the intentional touching of a person without that person’s consent. Touching includes the intentional putting into motion of anything which touches another person, or which touches something that is connected with, or in contact with, another person. In order to be a battery, the touching must be harmful or offensive. A touching is harmful if it causes physical pain, injury or illness. A touching is offensive if it offends the other person’s reasonable sense of personal dignity.”[20]

So, as would be expected, a punch, a kick, or bit could all constitute a battery for which a bully could be held financially responsible. In addition, an offensive touching such as a shove – or any other physical contact intended to show disrespectful – could also constitute an actionable battery.

Note: The word actionable is another way of saying that a person can “bring an action” (i.e., sue).

 

 

[1] Rittakerttu Kaltiala-Heino et al., Bullying at school—an indicator of adolescents at risk for mental disorders, in Journal of Adolescence, 23, 661 (2000).

[2] Chaney v. Maryland, 918 A.2d 506, 511 (Md. 2007).

[3] Md. Code Ann., Crim. Proc. § 11-605 (LexisNexis 2013).

[4] Id. § 11-603.

[5] Id. § 11-604.

[6] Id.

[7] Id. § 11-603.

[8] Crim. Proc. § 11-615; See also McDaniel v. State, 45 A.3d 916, 920 (2012).

[9] Juliano v. Maryland, 890 A.2d 847 (Md. Ct. Spec. App. 2006).

[10] Chaney, 918 A.2d at 512 (providing that victims “may request restitution directly or may ask the prosecutor to request it on their behalf”).

[11] Id.

[12] Id.

[13] Crim. Proc.  § 11-605.

[14] Crim. Proc. §11-603.

[15] Spencer v. Maryland, 30 A.3d 891 (Md. 2011) (discussing assault in the context of a criminal case); See also Watson v. Peoples Sec. Life Ins. Co., 588 A.2d 760 (Md. 1991) (providing that an “assault `has substantially (if not exactly) the same meaning in our law of torts as in our criminal law'”).

[16] Watson, 588 A.2d 760.

[17] Id.

[18] Lemon v. Early, 1996 Md. App. LEXIS 189, at *48-49 (Md. Ct. Spec. App. Dec. 24, 1996).

[19] Watson, 588 A.2d 760 (providing that a battery is the consummation of an assault).

[20] Mole v. Jutton, 846 A.2d 1035, 1049 (Md. 2004).

Things you should know about racial profiling

by Trey Ross, M.Ed., Esq.policeman

Plaintiff: “The police racially profiled me, harassed me, and then charged me with disorderly conduct and resisting arrest after a traffic stop. I feel humiliated. I’ve heard of people suing policemen and police departments for abusing their power. Can I take them to court over this?”

 

Brief Answer: You may have several options available. To start, the Supreme Court has stated that racial profiling by police officers can be challenged as violation of the Constitution’s Equal Protection Clause. Also, police officers who deny you your constitutional rights can be sued for violating 42 U.S.C. § 1983. In some instances, officers can be given immunity from personal liability but there are situations where officers will be denied immunity and held personally responsible. In addition to liability for violating §1983, tort theories such as malicious prosecution, false arrest, and false imprisonment may also be available.

 

  1. Racial Profiling: An Equal Protection Issue

The US Department of Justice has defined racial profiling as “any police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity.”[1] The term “racial profiling” has become a common way of describing the violation of a constitutional right that has been present since the adoption of the 14th Amendment – that is, no state shall deny to any person within its jurisdiction the equal protection of the laws.[2]

The 14th Amendment’s Equal Protection Clause was created after the US Civil War and it essentially provides that “all persons similarly situated should be treated alike.”[3] One of the original purposes for the law was to prevent southern states from denying rights to America’s newly freed people of African ancestry.

In addition to promoting equal rights, the Equal Protection Clause also prohibits selective enforcement of valid state laws.[4] For example, African-American motorists have successfully challenged traffic stops and searches by law enforcement officers who targeted and harassed black drivers.[5]

The Fourth Circuit’s Court of Appeals has outlined the standard for bringing an equal protection claim (e.g., racial profiling) against law enforcement officers. In US v. Hammond, the court held that to establish that one “is the victim of racially motivated law enforcement, ‘[t]he claimant must demonstrate that the [enforcement policy] had a discriminatory effect and that it was motivated by a discriminatory purpose. . . . To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.’”[6]

To illustrate, in Maryland State Conference of NAACP Branches v. Maryland State Police, the court was presented with statistical evidence that Maryland state troopers targeted nonwhite motorists,[7] and the court also reviewed accounts of the events as told by the plaintiffs. After examining the information, the court found that there was reason to believe that the officers had violated the Equal Protection Clause on a number of occasions.[8]

In most instances where the court decides a person’s constitutional rights have been violated by a government actor, the plaintiff has a right to seek relief for the harm caused. See section B below.

  1. Civil Liability under 42 U.S.C. § 1983

The federal civil rights statute 42 U.S.C. § 1983 provides the following:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.[9]

Therefore, a person—such as a police officer—can be sued in his individual capacity (i.e., he would have to pay for the harm he caused out of his own pocket) for willfully violating the equal protection clause[10] or a government agency can be held liable for the unconstitutional offenses of its law enforcement officers.[11]

To establish a prima facie case (i.e., a case that will not automatically be dismissed as meritless), under § 1983, a plaintiff must assert: (1) the action occurred “under color of law” and (2) the action is a deprivation of a constitutional right or a federal statutory right.[12]

The first element of the test is relatively easy to spot since any state action (e.g., a policeman acting in his official capacity) is an action under color of law.[13] Also, in the context of racial profiling, the second element can easily be satisfied since “[t]he Fourteenth Amendment right not to be stopped on the basis of race was clearly established in 2009.”[14]

  1. Other theories of tort liability

In addition to an equal protection claim and a § 1983 violation, a plaintiff who believes that he has been a victim of racial profiling may also be entitled to hold a police officer liable under tort theories such as malicious prosecution, false arrest, and false imprisonment.

A claim of malicious prosecution is a suit for an injury caused by a criminal prosecution that has been instituted maliciously and without probable cause (i.e, a reasonable belief that the defendant had committed the crime).[15] To bring such a suit, the plaintiff who has been a victim of racial profiling must prove that a criminal proceeding was (1) instituted or continued by the defendant against the plaintiff, (2) without probable cause, (3) with malice, or with a motive other than to bring the offender to justice, and (4) a termination of the criminal proceedings in favor of the plaintiff.”[16]

Also, in the context of racial profiling, claims for both false arrest and false imprisonment[17] are based on an abuse of power by an arresting officer.  The elements of a false arrest and/or a false imprisonment claim are “(1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification.”[18]

Note: Whether the officer had probable cause is often not a defense to a false imprisonment claim.[19]

Summary:

True racial profiling is a violation of the Equal Protection Clause of the 14th Amendment. All people are entitled to equal protection from government actors who attempt to enforce laws in a discriminatory manner. Not only are victims entitled to assert their right to be free of racially-based harassment by law enforcement officers, individuals can also hold officers and agencies liable via tort claims.

[1] Deborah Ramirez et al, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices

and Lessons Learned, 3 (2000), https://www.ncjrs.gov/pdffiles1/bja/184768.pdf

[2] U.S. Const. amend. XIV. § 1.; Whren v. US, 517 U.S. 806, 812-813 (1996) (providing that “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment).

[3] City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

[4] Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004) (providing that an equal protection claim based on selective enforcement of valid laws requires that a plaintiff can show that the defendants’ rational basis for selectively enforcing the law is a pretext for a malicious motive).

[5] E.g., Md. State Conference of NAACP Branches v. Md. State Police, 454 F.Supp.2d 339, 346-347 (2006) (providing that facts supported finding an officer’s stop of an African-American man had a discriminatory effect and intent since the black driver was stopped for no other reason than to be subjected to a search for weapons and drugs).

[6] No. 08-5162. (4th Cir., Nov. 25,2009).

[7] 454 F.Supp.2d at 343 (providing a statement by a Lt. Col. Harvey of the Maryland State Police Department declaring that “[a]fter having the opportunity to review statistics gathered from January 1, 1995 through June 1, 1995 pertaining to these searches, the numbers reveal that Troopers are continuing to target nonwhite subjects”).

[8] Md. State Conference of NAACP Branches, 454 F.Supp.2d at 346-356.

[9] 42 U.S.C. § 1983 (2009); See Monroe v. Pape, 365 U.S. 167 (1961).

[10] See Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011) (providing that an officer is not entitled to a qualified immunity defense if the plaintiff demonstrates “both that the defendant violated a constitutional right and that the right was clearly established”), cert. denied, 133 S. Ct. 211 (2012).

[11] Lohdi v. Fairfax Cnty./Bd. Of SUPERVISORS, No. 1:12-cv-1108 (JCC/JFA) (E.D. Va. December 21, 2012) (providing that a government agency can be liable for acts of its employees if the plaintiff pleads and proves an individual violated §1983 as a result of a (1) government policy or custom of deliberate indifference to the deprivation of constitutional rights; and (2) this policy or custom caused the plaintiff’s injury).

[12] Parratt v. Taylor, 451 U.S. 527, 535 (1981).

[13] West v. Atkins, 487 U.S. 42, 49–50 (1988) (providing that “generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law”); Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).

[14] Martin v. Conner, 882 F.Supp.2d 820 (2012) (referring to Md. State Conference of NAACP Branches, 454 F.Supp.2d 339).

[15] Delk v. Killen, 93 A. 2d 545 (1953).

[16] Harron v. Strader, 761 A.2d 56, 59 (2000).

[17] Id. (providing that the elements of both false imprisonment and false arrest are identical).

[18] Id.

[19] Id. (providing “[t]he Court has consistently held that probable cause is not a defense in an action for false imprisonment based upon a police officer’s warrantless arrest for the commission of a non-felony offense, or upon an arrest by a private person”).

Contributory Negligence and “The Last Clear Chance” standard in Maryland

by Trey Ross, M.Ed., Esq.

Plaintiff:

“My mother passed away last month. She was in a nursing home and one of their new employees failed to provide her with the right dosage of her medication. Before her death, my mother suspected that the new guy was not giving her the right amount of meds. However, the employee appeared very cocky, so my elderly mother didn’t feel comfortable questioning him.

My mother eventually died from complications that could have been avoided much longer had she been given the correct amount of medication.

I’ve been told that, in Maryland, a person who has contributed to her own harm has no right to file a complaint. Is this true?”

Brief Answer:

No exactly. While the doctrine of “contributory negligence” can prevent a person from recovering for her injury, Maryland also recognizes “the last clear chance” doctrine. By establishing that the defendant had the last clear chance to avoid the harm to the victim, the victim can still hold the defendant responsible for her injury regardless of whether the victim was negligent.

Note: Since the plaintiff is solely interested in the law regarding contributory negligence, the response below will not look at other potential defenses the defendant may raise (e.g., assumption of the risk). Likewise, the response below will not examine whether or not the victim’s failure to question her dosage was an act of negligence. So, if you find that you are in a similar situation as the plaintiff here, please consult an attorney before making any final decisions regarding your case.

  1. What is Contributory Negligence?

As always, to establish that a defendant is liable for negligence, the plaintiff will need to show that the defendant had a duty, the duty was breached, an injury occurred, and that the defendant’s breach was the proximate cause of the injury.[1] However, if a plaintiff acts in a way that an ordinary person would not have acted (i.e., the plaintiff was negligent) and is injured, then the plaintiff is generally thought to be the proximate cause of her own injury; thus, the defendant should not be held liable.[2]  

For example, in Coleman v. Soccer Association of Columbia, an accomplished soccer player suffered severe injuries after the crossbar of a soccer goal fell onto his face.[3] The injury occurred after James Kyle Coleman – the soccer player who was injured – jumped up and grabbed the goal’s crossbar to hang from it.[4] As a result, the crossbar fell onto Mr. Coleman.   

At trial, the jury had to decide who was liable for the injuries to Mr. Coleman. Since there was evidence that the soccer goal was not properly secured to the ground, the jury found that the Soccer Association of Columbia (“Soccer Association”) was negligent in its failure to secure the goal.[5] In addition, the jury found that the Soccer Association’s negligence caused the plaintiff’s injuries.[6] However, the jury also found that the plaintiff, Mr. Coleman, was negligent in his act of hanging from the goal.[7]

Since the jury found that the plaintiff contributed to his own injury, the court held that the plaintiff was unable to recover.[8]

While the last clear chance doctrine can be a defense to a contributory negligence claim, it probably would not have been helpful to Mr. Coleman for the reasons discussed in section B below.

  • What is the last clear chance doctrine, and how does it work?

Since the contributory negligence standard can sometimes lead to harsh outcomes, the Court has adopted several exceptions to the rule.[9] One exception is the last clear chance doctrine which allows a negligent plaintiff to prevail if he can establish two things: (1) the defendant was negligent; and (2) “something new or sequential” occurred that gave the defendant a chance to prevent his act of negligence from leading to the plaintiff’s harm.[10]

For example, in Ritter v. Portera, a 17-year-old girl negligently chose to ride on the hood of a car driven by the defendant.[11] After the defendant sped away in his car, the plaintiff fell off the vehicle and was injured as the vehicle dragged her for approximately 20 feet. The Maryland Court of Special Appeals found that, although the plaintiff contributed to her own harm, the defendant had the last clear chance to avoid the injury since he drove the car after having knowledge that plaintiff had carelessly placed herself in danger.[12]

So, although it is generally understood that this doctrine requires that the court examine three separate acts of negligence (i.e., the defendant’s original negligent act, the plaintiff’s contributory negligence, and the defendant’s final negligent act), as illustrated in Ritter, two acts will suffice.[13] What is critical is that the defendant is aware that the plaintiff has placed herself in danger, and the defendant has time to correct his action before causing harm to the plaintiff.[14]

Unfortunately, if the plaintiff’s negligent act is concurrent with the defendant’s negligent conduct, the last clear chance doctrine will not apply.[15]

Note: While the last clear chance doctrine often arises in cases involving automobile accidents, it can also apply in medical malpractice suits.[16]

Summary:

In Maryland, a person who contributes to her own harm will often be solely liable for her harm even if another person’s negligence helped to bring about the injury. However, Maryland has a number of exceptions to this rule; one of which is the last clear chance doctrine. Still, an at-fault plaintiff will only be able to assert the last clear chance doctrine if the defendant had notice of the plaintiff’s peril early enough correct his actions and prevent injury to the plaintiff.


[1] E.g., Schultz v. Bank of Am., 990 A.2d 1078, 1086 (Md. 2010) (citing the four elements of negligence).

[2] Poole v. Coakley & Williams Construction, Inc., 31 A.3d 212, 224 (Md. 2011).

[3] No. 9 (Md. July 9, 2013).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Coleman, No. 9 (providing that exceptions to contributory negligence doctrine evolved to allow at-fault plaintiffs to recover such as in cases where the claimant is under five-years-old, and when the claim is based on strict liability or intentional conduct by a defendant).

[10] Id. (providing “the doctrine of last clear chance developed…to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes “something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence” (quoting Sanner v. Guard, 203 A.2d 885, 888 (Md. 1964))).

[11] 59 Md. App. 65 (1984).

[12] Id.

[13] Id. (providing that a defendant was liable under the last clear chance doctrine for a single act of negligence).

[14] Id. (providing that “the [last clear chance] doctrine is not applicable unless the defendant discovered the plaintiff’s peril in time, [and] by the exercise of ordinary care…[the defendant could] have avoided the accident” (quoting  Kolish v. Wash., B. & A.R. Co., 131 A. 822 (1926)); Meldrum v. Kellam Distrib. Co., 211 Md. 504, 511-512 (1957) (providing “[n]otwithstanding previous negligence of the plaintiff, if, at the time when the injury was committed, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie”).

[15]  Meldrum, 211 Md. at 512-513.

[16] Simmons v. Urquhart, 101 Md. App. 85, n. 13 (1994) (identifying the application of the last clear chance doctrine as appropriate in the context of medical malpractice) (citing Sharon Murphy, Contributory Negligence in Medical Malpractice: Are the Standards Changing to Reflect Society’s Growing Health Care Consumerism?, 17 U. Dayton L. Rev. 151, 155 (1991)).