Dram Shop Laws in Maryland

Dram Shop laws make an establishment or person that continues to serve alcohol to a visibly intoxicated person legally liable if that intoxicated person injures or kills someone.  This is different from social host liability, which holds that adults who provide alcohol to underage drinkers can be held civilly liable if the underage drinkers later harm someone else while intoxicated.

Currently, 43 states and DC have some form of a dram shop law.  The states without any such law are Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South Dakota and Virginia.  Note that Maryland does have a social host law that was created in 2016.

In recent years, the Maryland legislature tried to create a dram shop law.  This was in response to the August 2008 death of 10-year-old Jazimen Warr.  Michael Eaton, who had been drinking at the Dogfish Head Alehouse in Gaithersburg, Maryland, slammed into the vehicle in which Jazimen was a passenger.  It’s estimated that Eaton was driving between 88 to 98 mph when he struck the Warr vehicle.  Jazimen, who was a passenger in the back seat, was killed.

Jazimen’s family filed suit against a number of defendants, including Dogfish Head Alehouse.  Dogfish Head Alehouse was eventually let out of the lawsuit when its motion for summary judgment was granted.  The trial court was bound by the case law in Maryland, which held that dram shop liability was not a recognized cause of action in Maryland.  The case went on appeal all the way to Maryland’s highest court.  In 2013 the Court of Appeals held in a 4-3 decision, that it would not overturn established case law in Maryland and would not create a dram shop law.

In 2011, Maryland legislator, Kathleen Dumais introduced a bill to create a statutory dram shop law, but the bill did not pass.  There was discussion by Dumais in 2016 that she would re-introduce this same bill, but it’s not clear if she ever did or not.

Proponents of dram shop laws say that these types of laws can limit the number of drunk drivers by creating an incentive for bars and restaurants to cut off patrons that they feel are intoxicated and increase publicity surrounding the over-serving of patrons. Additionally, it allows injured parties and their families to have another source of possible financial recovery by creating possible exposure to the insurance carriers of restaurants and bars that have been sued.

Opponents of these types of laws argue that by removing the personal responsibility component, the financial burden is shifted to bars and restaurants, including the possibility of higher insurance premiums.

Judge Adkins, who wrote a very strong dissent in the opinion in Warr case was the author of the majority opinion that created social host liability.  In many ways, the progression from social host liability to dram shop laws seems to be the next natural step and it unlikely that this issue won’t come up again in Maryland.

Advertisements

Can an Attorney Help Me Get More Money for My Injuries?

If you’ve ever been home sick on a Wednesday morning and spent some time watching the TV, you’ve seen the commercials – “Have you or someone you love been hurt in a car accident?” and the tag line is that “If you don’t get paid, we don’t get paid.”

Remove the cheesy and sometimes slimy nature of some of these commercials and you’ll see the message is that if you have been injured through no fault of your own, you should get a lawyer.  It’s also true that for the vast majority of personal injury cases, attorneys work on a contingency basis, which means they get paid a percentage of what they recover on your behalf.

Retaining an attorney will usually lead to a higher recovery on your personal injury case. There are several reasons for this, but here are a few primary ones:

1.  An attorney can assess the strength of your case and potential value.

2.  Hiring an attorney lets the insurance company know you’re not afraid to take your case to trial.  If you negotiate the claim yourself, the insurance adjuster knows you likely don’t want to go to trial.

3.  Hiring an attorney allows the attorney to become involved in communicating with the insurance adjuster earlier on in the process.  This can help you avoid any potential missteps in what you say to the insurance company or what personal information you authorize the insurance company to obtain about you.

4.  An attorney can advise you on ensuring that your medical records and treatment notes are properly documented to assist you in maximizing your recovery.

Consulting with an attorney for a personal injury case is almost always free with no risk to you. Trust your gut – if you feel uncomfortable with the attorney you’ve consulted with, speak to another attorney or firm.  Do your research and find attorneys that get consistently good reviews online (i.e., Yelp, Google and Facebook).

What The First Amendment May Not Protect

First Amendment Rights are a hot topic right now.  Discussion ranges from the right of NFL players to kneel during the National Anthem to what a person says or does on their personal social media accounts.

The First Amendment is actually fairly narrow in scope.  It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  It limits what the government can do to your freedom of speech, expression, etc.  What it doesn’t do is provide a lot of protection in the private sector.

Recently, Hayley Geftman-Gold a CBS vice president and senior counsel, was fired for posting comments on social media stating that the victims of the Las Vegas shooting didn’t deserve her sympathy because they were probably Republicans.  Just yesterday, ESPN announced the suspension of ESPN anchor Jemele Hill for her second violation of the company’s social media policy.  Jemele Hill took exception to Dallas Cowboys owner Jerry Jones stating that he would bench any player who disrespected the American flag and voiced her displeasure on Twitter.  She previously posted tweets referring to President Trump as a white supremacist and prompted the White House to call for her to be fired.

So, the question is can an employer discipline and even fire an employee for what he or says or posts online after work hours or on their private social media account?  The answer of course is that it depends. Some states (a minority of states) prohibit employers from disciplining an employees for what he or she does on their personal time, as long as they are not engaging in illegal activities.  So, in these states, an employee is likely be protected from discipline for what they post online.

It may also depend on the device you use to access social media.  Often times, anything you view or post through a company-owned device is available to the employer. That includes smartphones, tablets, computers, etc.

One reality to bear in mind though is that the majority of employment is at-will.  This means that an employee can be fired for just about any reason.  The Employer does not have to show just cause.  So, if you get online and start posting comments that your employer takes exception to, you can likely be disciplined.  Your political beliefs are not protected in the workplace.

 

Judge Reduces Jury Award for Dog Shot by Police

Michael Reeves was awarded $1,260,000.00 by a jury in Anne Arundel County after his dog was shot by a police officer.  The jury awarded Reeves $1,250,000.00 in economic and non-economic damages (click here for the difference between the two types of damages) for gross negligence on the part of the police and $10,000.00 in economic damages for the death of the dog.

Judge Mark Crooks in Anne Arundel County reduced the judgment to $207,500.00.  Under the Local Government Tort Claims Act, the maximum recovery for negligence is $200,000.00. Furthermore, under Maryland law, the maximum economic damages you can recover for the injury of a pet is $7,500.00.

Reeves testified that he paid $3,000.00 for his Chesapeake Bay Retriever and Anne Arundel County argued that a verdict of $1,260,000.00 for the death of a $3,000.00 dog was “unconscionable.”

This case is one of the first in Maryland to make headlines since the 2010 case involving Roger and Sandra Jenkins.  In the Jenkins case, police officers shot a chocolate lab owned by the Jenkins family.  They were awarded more than $200,000.00 for the shooting of their dog and the police department appealed, citing to Maryland’s law that damages to a pet are capped at $7,500.00.   Interestingly, the Court of Special Appeals (Maryland’s second highest appeals court) held in Jenkins that the $7,500.00 limitation only applied to the economic damages (out of pocket expenses) that a plaintiff could receive for the value of their pet, but did not limit other types of compensation they could receive, like non-economic damages for their emotional distress.

I’ve Been in a Car Accident – Now What?

Getting into a car accident can be very stressful, especially if it wasn’t your fault.  One of the things we get asked the most is what to do after you’ve been in a car accident.  Here is a quick list of some of the things to do and remember.  This list contains some pointers, but by no means should be considered an exhaustive list that covers all situations and scenarios that can surround a car accident:

  1. CALL 911:  If anyone is injured, immediately called 911 and ask for an ambulance, as well as the police.
  2.  EXCHANGE INFORMATION: Make sure you exchange information with the other driver, including your names, phone numbers, addresses, make and model of the vehicles, including license plate numbers, and insurance information from any drivers involved.  An easy way to store some of this information is to take pictures of driver’s licenses, license plates and insurance cards.  If there are passengers in any vehicles or witnesses that identify themselves, try to obtain their information as well.
  3. TAKE PICTURES:  Take pictures of any damage to vehicles involved in the accident, the accident scene, or anything that may have contributed to the accident (i.e., road construction, objects in the road, icy patches, etc.).
  4. BE CAREFUL WHAT YOU SAY:  It’s completely appropriate to check on drivers and passengers in the other car(s) and see if they need medical attention or help. However, never admit fault for the accident, not even to the police.  Even if you think you were at fault, it may not be immediately clear who was actually at fault or contributed to the accident.  DO NOT allow the other driver’s insurance company to take a recorded statement from you.  If you have any suspicions that the other driver(s) may try to blame you for the accident, you do not have to speak with their insurance company at all.
  5. CALL YOUR INSURANCE COMPANY: Contact your insurance company as soon as it’s practical.  While you should answer any questions about the accident truthfully, be mindful of what you say, especially if the insurance company is taking a recorded statement.
  6. IF YOU’RE INJURED, SEE YOUR DOCTOR:  Delaying your medical treatment can impact your medical diagnosis and recovery time as well as have an effect on how your case is evaluated for settlement by the other driver’s insurance company.
  7. DON’T SETTLE TOO QUICKLY:  Some insurance companies will offer you a quick payment in exchange for a settlement of your case and a release of all claims.  In the state of Maryland, as a general rule, you have 3 years from the date of the car accident to file a lawsuit, so before settling your case, it’s important to make sure all of your injuries have been diagnosed and if possible, treated.  Once you settle your case, you cannot come back for more money.
  8. IF IN DOUBT, CONTACT A LAWYER: If you’re unsure of your options, including what costs and expenses you can recover and what your case is worth, contact an attorney.  Consultations for these types of cases are almost always free.

Salary History is Becoming History

Some states and cities are banning questions about salary history as part of an effort to ensure pay equity for women.  However, some companies argue that this is another example of government meddling with private businesses.

The primary argument in favor of finding out a candidate’s salary history is to help determine if a candidate’s salary needs are above the employer’s range.  This  helps to avoid wasting the candidate’s time and as well as the employer’s  time.   However, the response to that argument is that this issue can be avoided by simply including a salary range in a job posting or telling a job candidate early in the process what the salary range is.

Currently, Philadelphia, New York City and Massachusetts, have passed legislation barring employers from asking candidates about their salary history.  These laws are scheduled to take effect in New York later this year and in Massachusetts in July 2018.  However, Philadelphia is holding off on enforcing the new law pending a ruling by a federal judge on a petition filed by the Chamber of Commerce for Greater Philadelphia to block the new law.  A federal court already issued a temporary stay on the law, which was supposed to become effective on May 23, 2017.

There are at least eight other states that are considering similar legislation:  Illinois, Maine, Maryland, New Jersey, New York, Pennsylvania, Rhode Island and Vermont.

 

Maryland Can Now Suspend Your License Even if You Weren’t Driving

Maryland’s highest court has held that the MVA can suspend your license for refusing a breath test, even if you weren’t driving OR even attempting to drive your vehicle.

The Court’s opinion stated that your driver’s license may be suspended if you refuse a breath test if the police “reasonably” believed that you were driving or attempting to drive.  The high court overturned lower court rulings that held it had to be proven that you were driving or attempting to drive.  Now, an officer just has to “reasonably believe.”  It will be interesting to see how this interpretation of the statute manifests.

Our advice, if you’ve been drinking, don’t get behind the wheel of your car.  Even if it’s to warm up while waiting for a cab or Uber, or if it’s to sleep it off.  If you have to get in your car to wait or sleep it off, get in the back seat.

 

 

Defamation cases against Marilyn Mosby set to proceed

The drama surrounding Marilyn Mosby continues.  A federal judge in Baltimore has ruled that Mosby is not immune from suit by five of the Baltimore Police Department officers who were charged in connection with Freddie Gray’s death.  He has further denied Mosby’s request to stay the case while she appeals his rulings on her immunity.

In fact, Judge Marvin J. Garbis left no doubt as to what he thought about Mosby’s appeal.  He wrote, “the Court does not, by any mean, consider Mosby’s appeal to be meritorious.”  Judge Garbis declined to extend immunity to Mosby after a hearing in October.  He did dismiss claims of false arrest, false imprisonment, abuse of process, conspiracy and constitutional violations.

Is Saying “No” Enough in Maryland?

The Maryland legislature is debating a bill that removes the requirement that rape victims show they tried to physically resist their assailants.

Maryland’s Court of Appeals (the highest court in Maryland) has ruled that evidence of physical resistance is necessary to show a victim’s lack of consent in rape cases. The appellate decisions have been relied upon in jury instructions given in rape cases. According to Baltimore County State’s Attorney Scott Shellenberger, these rulings and the jury instructions that have spun off from them, essentially make physical resistance an element of rape.

Shellenberger told the Maryland Senate’s Judicial Proceedings Committee (“Committee”) that while physical resistance can be very strong evidence of lack of consent, it is not the only reliable evidence of rape.  He pointed out that a victim might choose to not resist their attacker, and that the lack of resistance was not consent.

Senator Robert A. “Bobby” Zirkin, (D-Baltimore County) and the chair of the Committee, asked whether there was really a need for the statute.  He cited rulings by courts in Maryland that indicated physical resistance is not needed to show lack of consent.

Senator Delores G. Kelley (D-Baltimore County) the bill’s chief sponsor, stated that this statute would place the focus on the alleged rapist’s actions rather than on the victim’s.

The text of SB 217 can be found here.

How to Ensure You Have the Right Insurance Coverage on Your Car

car-auto-insurance

We’ve all seen the commercials.  Allstate has Mayhem, State Farm has Jake, GEICO has the gecko, and the list goes on.  We all pay for car insurance because the law requires that we do.  We all know our car insurance can go up if we get a speeding ticket or are at fault for an accident.  But, do you know what the various types of coverage mean?

Liability Insurance – The State of Maryland requires that all passenger vehicles carry liability insurance.  Maryland has minimum coverage amounts that each vehicle must carry.  What does liability insurance cover?

Liability insurance covers damage you cause with your vehicle to another person.  This includes property damage and bodily injury.  Property damage is pretty self-explanatory.  If you hit another car with your car, this part of your coverage covers the cost to repair the damaged vehicle, up to your policy limits.  So, if you rear end a Honda Accord, you’re probably fully covered.  If you rear end a vintage Ferrari, your limits may not be adequate.

Bodily injury covers payment of medical bills, lost wages, pain and suffering, and a host of other potential areas related to injuries sustained by a person in a car accident, up to your policy limits.

Another area of coverage that ties into liability insurance is your uninsured/underinsured motorist coverage.

Collision Insurance – If your car is damaged or destroyed in an accident, collision insurance coverage will typically pay to fix or replace it, up to certain limits (e.g., the value of your vehicle).  This coverage generally comes into play if you’re at fault for an accident and damage your own vehicle.  If you have a lien on your vehicle, you’re usually required to have collision coverage.  However, if you don’t have a lien on your vehicle, Maryland does allow you to opt of this coverage.

Collision coverage comes with a deductible. This means you have to pay a certain amount of the damage out of your pocket.  Any amount after that is typically covered up to the actual cash value of your car.  For example, if you have a $250.00 deductible, and the cost to repair your vehicle is $1,000.00, you will pay the first $250.00 and your insurance company will pay the remaining $750.00.  Generally, the higher your deductible, the lower your premium.    When making the decision to carry collision coverage, you should evaluate how much your car is worth.  If your car is worth a couple of thousand dollars, maybe it’s worth the gamble of not carrying it.  If your car is worth several thousand dollars, you may want to think about carrying collision coverage.

Comprehensive Insurance – This coverage pays for damage to your car caused by an event other than a collision, such as fire, theft, vandalism, if you hit an animal, or if you sustain flood damage.  Like collision, if there is a lien on the vehicle, you likely have to have this coverage.  The decision to carry this coverage, similar to collision, should be based on the value of your vehicle.

Your insurance agent can discuss these types of coverage with you in more detail and help you make a decision regarding the right types of coverage for you.

Having the right amount of coverage is very important if you’re involved in a car accident and you’re at fault.  It can mean the difference in seeing your insurance rates go up a little bit or having to liquidate assets in order to pay a settlement or judgment.  We’ll discuss policy limits and uninsured/underinsured motorist coverage in more detail in our next blog entry.