Hours of Service Regulations: They’re on the Move Again

The Federal Motor Carrier Safety Administration (“FMCSA”) has issued new rules intending to give drivers more flexibility with hours of service in their workdays while also improving safety for all motorists. According to a recent analysis from the American Transportation Research Institute, these new regulations will allow drivers to take “strategic periods of rest.” Four major changes to the Hours of Service (“HOS”) regulations went into effect on September 29, 2020:

  1. The short-haul exception is expanded to 150 air-miles and allows a 14-hour work shift to take place as part of the exception.
  2. The driving window during adverse driving conditions is expanded by up to an additional two hours.
  3. Drivers are required to take a break of at least 30 consecutive minutes after eight cumulative hours of driving time (instead of on-duty time). This new rule allows an on-duty/not-driving period to qualify as the required break.
  4. The sleeper berth exception is modified to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least seven hours of that period in the sleeper berth combined with a minimum off-duty period of at least two hours spent inside or outside the berth, provided the two periods total at least 10 hours (the former rule required drivers to divide a 10-hour off-duty period in a sleeper berth into eight hours of rest and two hours of non-driving time). When used together as specified, neither qualifying period counts against the 14-hour driving window.

The FMCSA published an Advanced Notice of Proposed Rulemaking in April 2019 and hosted five listening sessions nationwide. Between written public responses and statements gathered at the listening sessions, the FMCSA received more than 8,000 comments regarding the proposed HOS revisions. One overriding theme throughout the comments was a request that drivers be given more control over how they use their time.

One provision included in the August 2019 proposal that was not included in the final rule was a provision that would have paused a driver’s 14-hour driving window and allowed one off-duty break of at least 30 minutes but no more than three hours. The overall industry feedback was that the sleeper berth revision provided adequate flexibility, although most commenters suggested a 5-5 or 6-4 split rather than the final 7-3 split. Many drivers expressed that they thought a 30-minute break was too long, while others did not mind a required break but did not want to be told when to take the break, so allowing an on-duty, not driving period was supported by most drivers.

The FMCSA has added an “Educational Tool for Hours of Service” (“ETHOS”) to its website that allows drivers to create a sample record of duty log to make sure that they comply with the new regulations (ETHOS does not cover the 60/70 hour regulation). The FMCSA states that ETHOS is solely meant for educational purposes and that the data is not being recorded so that drivers can clear up any confusion arising from the new HOS changes without worrying about the sample logs being used for any other purpose.

D.C. Department of Employment Services Issues 2021 Stakeholder’s Letter Regarding Changes to Administrative Hearings Division (AHD) Procedures due to SARS-COVID-19 Restrictions

On February 25, 2021, the Director of the District of Columbia’s Department of Employment Services, Dr. Unique Morris-Hughes, issued a 2021 Stakeholder’s Letter announcing changes to the Administrative Hearings Division’s (AHD) policies and procedures due to the novel coronavirus epidemic.  The AHD conducts formal administrative hearings under the D.C. Workers’ Compensation Act of 1979, as amended, D.C. Code § 32-1501 et seq.

Pursuant to the director’s announcement, effective immediately, all paper – including compensation orders, scheduling orders, and/or other orders – will be issued by the AHD through the department’s electronic filing system.  Importantly, implementing policy change means that going forward, with respect to the issuance of compensation orders, scheduling orders, and/or any other order, will no longer be sent to the intended recipient via certified mail, as was previously required.

According to Director Morris-Hughes, this procedural change is designed to address staffing concerns within the department as a result of the novel coronavirus pandemic.  Suspension of the certified mail requirement, she noted in her February 25, 2021 letter, “will limit the staff’s physical presence in the office, reducing the spread of SARS-CoV-2, while enhancing the efficiency of service delivery to our stakeholders,” and went on to credit “the successful adoption and implementation of the e-filing system” with making this policy change possible.

While the “success” of the Department of Employment Services e-filing system is not in doubt, since the certified mail requirement was/is designed to ensure receipt by an appropriate individual or agent, questions regarding the effect on pro-se litigant’s due process rights still remain.  Particularly related to Scheduling and Compensation Orders, which require a response or some action on the part of a pro se litigant, often resulting in a dismissal of an action for failure by the party to do so.

To address this concern, the D.C. Department of Employment Services and the AHD are encouraging all self-represented (pro se) litigants to register with the e-filing system at the outset of any litigation.  According to the director, registration for the e-filing system will ensure that self-represented litigants “receive information more securely, timely, and faster.”

Only time will tell whether this policy change meets the director, AHD, and their respective stakeholders’ expectations.  In the meantime, the director has advised that any questions, comments, or concerns regarding this policy change should be directed to Mohammad R. Sheikh, Deputy Director for the Labor Standards Bureau mohammad.sheikh@dc.gov.

Written by associate Kara Parker.

Avoiding Rudderless Litigation: Assessing the Standard of Care for COVID Claims

Written by:

J. Michael Kunsch Sweeney & Sheehan, P.C.
Albert B. Randall, Jr. Franklin & Prokopik, P.C.

Initially published in USLAW Magazine Spring 2021

The COVID-19 pandemic has left a wide-ranging spectrum of devastation in its ongoing wake. Businesses have fought through mandated closures, constantly changing guidance, inability to secure PPE and cleaning supplies, and staffing issues to open and continue to serve their customers. Waiting on the other side of that fight are hundreds of already filed lawsuits, and the threat of an avalanche of more, claiming injury and damage due to exposure to the virus. Among the first issues to be addressed is the standard of care Courts will apply to those claims to determine whether appropriate care was rendered by the business.

As of mid-January 2021, there were 24.3 million confirmed cases of coronavirus in the United States, resulting in 402,000 deaths. Worldwide, there were 96.2 million cases and 2.06 million deaths.

While it seems an eternity, it has been a little over a year since the coronavirus first appeared. It is important to remember a few seminal dates regarding the virus and efforts to mitigate its spread. On January 9, 2020, the World Health Organization (“WHO”) announced that there was a mysterious coronavirus-related pneumonia centered in Wuhan, China. On January 21, 2020, the CDC confirmed the first U.S. coronavirus case in the United States in a Washington state resident who had returned from Wuhan. On January 31, 2020, the WHd declared a global public health emergency, and the United States followed with a declaration of a public health emergency on February 3, 2020. The CDC and OSHA (Guidance on Preparing Workplaces for COVID-19) issued initial guidelines on March 9, 2020.

Since the appearance of coronavirus, the WHO, CDC, and others have “followed the science” to learn about the disease and its transmission and offered guidance for preventing its spread. Some of that guidance has been unhelpful, and on occasion, it has been wrong. For example, on January 14, 2020, the WHO issued a now-infamous tweet claiming that Chinese authorities had “found no clear evidence of human-to-human transmission of the novel #coronavirus.” Thereafter, guidance from the WHO and CDC was equivocal about the efficacy of wearing masks to inhibit the spread of the virus. The business community has struggled to adapt to this changing guidance and to establish and follow best practices to protect their employees and customers. With litigation continuing to be filed alleging exposure to coronavirus, businesses are now faced with the task of determining what standard of care will be applied, and what burden of proof will be required. To date, a legislative answer to this quagmire has proven elusive, though efforts to find a solution are ongoing.

In the absence of a statutory definition, the determination of standard of care under the common law is informed from a variety of sources to determine what a “reasonable” business should have done to mitigate the risk of exposure. It is likely that Courts will look to governmental safety regulations to determine the standard of care. Such reliance is well established. See In Re City of New York, 522 F.3d 279, 285-286 (2d Cir. 2008) (governmental safety regulations can shed light on the appropriate standard of care); Rolick v. Collins Pine Co., 975 F.2d 1009, 1014 (3d Cir. 1992) (holding OSHA regulations were relevant to the standard of care). In Ebaseh-Onofa v. McAllen Hospitals, L.P., 2015 WL 2452701 (Tex. Ct. App., May 21, 2010), which involved the death of a nurse from H1N1, plaintiff argued that the standard of care was determined by the CDC’s purported requirement that healthcare workers wear n95 masks when treating patients suspected of having the virus.

Analysis of litigation already commenced informs us as to the thinking of the plaintiff’s bar on the standard of care issue. In May 2020, a lawsuit was filed in Philadelphia County, Pennsylvania, arising out of the death of a union steward at a meat processing plant due to respiratory failure caused by COVID-19. In the Complaint, plaintiff cited the January 31, 2020, WHO declaration, and the CDC and OSHA guidelines issued on March 9, 2020. The Complaint alleged that the employer: (1) failed to provide sufficient personal protective equipment; (2) forced workers to work in close proximity; (3) forced workers to use cramped and crowded work areas, break areas, restrooms, and hallways; (4) discouraged workers from taking sick leave in a manner that had sick workers in fear of losing their jobs; and (5) failed to properly provide testing and monitoring for individuals who may have been exposed to the virus that causes COVID-19. Interestingly, plaintiff also alleged that after the spread of H1N1 in 2009, meat processing plants were on notice of the danger of the airborne spread of the virus. Plaintiff specifically alleged that the employer ignored guidance from the CDC and OSHA by not mandating: (1) use of masks and PPE; (2) social distancing guidelines; (3) that workers who were feeling ill report their symptoms to their superiors; (4) that workers who were feeling ill stay at home from work and self-quarantine. It was further alleged that the plant violated OSHA regulations, including OSHA 1910.132, related to the use of PPE.

In Florida, legislation has been introduced to provide certainty and guidance to businesses subject to litigation for COVID-19 exposure and transmission. The proposed legislation would provide liability protections where a business made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued. The bill contains strict pleading requirements, mandating that a Complaint be plead with particularity and include an Affidavit attesting that the plaintiff’s COVID-19 related damages/injury occurred as the result of the defendant’s acts or omissions. Further, before discovery is permitted, the Court is required to determine whether the business made such a good faith effort. If so, the defendant is immune from civil liability. Even if a good faith effort was not found, however, a plaintiff would be required to prove their case with a burden of at least gross negligence, established by clear and convincing evidence.
Similar legislative efforts are underway in other states and in the federal government. Clear minded proponents argue that while businesses should not be exempt from liability for intentional acts or disregard of current (or then-current) guidelines, the concept of reasonableness requires protection for businesses who acted in good faith in attempting to prevent the spread of the virus. Absent specific federal or state legislation, businesses will be mired in a web of potential liabilities and standards of care.

In the meantime, even without knowing the standard of care that will eventually be applied, there are some simple strategies that businesses should employ to mitigate the threat of litigation and future exposure. They should gather and retain all documents that were relied upon when forming workplace safety policies, be they federal, state and/or local governmental executive orders, public health authority recommendations and/or agency guidance. Since those orders and recommendations often changed, maintaining those records is critical to support the rationale behind company-issued protocols and policies that were contemporaneous with such health and safety guidance. Similarly, each iteration of workplace policies must be kept establishing compliance with changing governmental directives. Communications must also be retained to demonstrate that policies were clearly and effectively disseminated to employees, customers, vendors, and other invitees. Lastly, any documentary evidence of workplace posters, fliers, trainings, PPE, etc., should also be maintained to further evidence good faith attempts at compliance and distribution of information.

Given the unprecedented threats that faced all businesses, there is reason for some cautious optimism that factfinders will be somewhat sympathetic to corporate defendants, at least those who are able to show good faith attempts when attempting to comply with changing governmental guidance. While we await further direction from the legislative and judicial branches, we remain mindful of Jerry Garcia’s advice that we must “keep truckin’ on.”

Authentication of Social Media Evidence

In this modern age—perhaps now more than ever —our population is using social media to connect with one another by sharing pictures, articles, and other various communications through social networking platforms such as Facebook©, Instagram©, and Twitter©.  As our society has continued its increasing use of social media, the issue has led to a growing topic in the legal landscape. Specifically, courts have grappled with the introduction of social media as evidence in litigation.

In a recent opinion, State of Maryland v. Hayes Sample, No. 54 September Term, 2019, the Court of Appeals of Maryland considered the standard for admitting social media evidence in a criminal case.  Hayes Sample was one of two individuals involved in an attempted armed robbery of a liquor store in Towson, Maryland.  Sample was charged with attempted armed robbery, first-degree assault, as well as various other handgun related charges.  Sample’s alleged accomplice, Claude Mayo, was shot and killed by the store owner in self-defense.  In its case against Sample, the state introduced evidence connecting Sample and Hayes through their Facebook© profiles, as well as evidence that Sample “unfriended” Mayo on Facebook© shortly after the crime and Mayo’s death.

The Circuit Court allowed the Facebook© records into evidence over the defense’s objections.  After the trial, the jury found Sample guilty of various charges, including attempted armed robbery and first-degree assault.  Sample appealed to the Court of Special Appeals, which reversed the Circuit Court and remanded the case back for a new trial.  The state then appealed to the Court of Appeals, which granted certiorari and reversed the decision of the Court of Special Appeals, affirming the Circuit Court decision to admit the Facebook© evidence.

Standard of Proof for Authentication of Social Media Evidence

In its analysis, the Court of Appeals noted the standard of proof to authenticate social media evidence is by a preponderance of the evidence under Md. Rule 5-901(b)(4).  There must be sufficient circumstantial evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what it is purported to be.

The Facebook© profiles included in the social media records produced at trial included cities familiar to both suspects Sample and Mayo.  The username associated with one of the profiles was “SoLo Haze.”  Although not an exact match to the defendant’s name, the Court found it persuasive that Haze was a homophone of Sample’s first name.  Additionally, there were “friends” connected to the profiles who were associated with both Hayes and Sample.  Finally, the email address registered to the SoLo Haze profile was mrsample2015@gmail.com, which clearly included Samples’ last name.  Because the Facebook© profile in question contained sufficient distinctive characteristics linking it to Sample, the Court determined the trial court had properly held a reasonable juror could find that it was, in fact, Sample’s profile.  The Court further reasoned the evidence showing Sample owned the profile constituted strong evidence in itself that he was responsible for the action of unfriending Mayo on Facebook©.  This apparent attempt to disassociate himself from Mayo after the crime was circumstantial evidence of Sample’s guilt.

Although Sample arose in a criminal law context, the evidentiary principles established apply equally to the authentication of social media in a civil context.  Thus, when seeking to authenticate social media evidence in a workers’ compensation claim, it is important to present proof upon which the finder of fact may rely to reasonably conclude that the social media evidence is what it is purported to be.  To this end, it may be a valuable pursuit for employers and insurers to seek to unearth additional background information related to a workers’ compensation claimant such as prior residences, nicknames, known associates, etc.  While at first, this information may not be directly relevant to the workers’ compensation claim, it could be a useful tool to authenticate social media evidence that does relate to the work accident or injury in question.

Written by associate Megan Berey.

Challenge to Coronavirus-Related Executive Orders Issued by Maryland Governor

On May 20, 2020, the United States District Court for the District of Maryland upheld Governor Larry Hogan’s Executive Orders that were issued in an effort to stop the spread of COVID-19 in Maryland. A motion challenging the orders was filed by several plaintiffs including religious leaders who argued that the orders infringe on their right to the free exercise of religion, veterans and legislators who argued that the orders infringe on their right to freedom of speech and assembly, and “non-essential” businesses who argued that the orders violate the commerce clause of the Constitution. Judge Catherine C. Blake denied the motion and found that “Governor Hogan, exercising the powers given to him by the legislature in the face of the COVID-19 crisis, has made reasonable choices informed, if not dictated by, such data, science, and advice.”

Governor Hogan first declared a state of emergency on March 5, 2020 following Maryland’s first reported case of COVID-19. He subsequently issued a number of Executive Orders that restricted gatherings, closed certain businesses, and ordered Marylanders to stay at home with limited exceptions. Judge Blake noted that the evolution of the Executive Orders, “demonstrates a gradual tailoring of the prohibition based on the COVID-19 figures and how well the previous prohibitions were working.”

Judge Blake found that the Governor’s orders did not infringe on the plaintiffs’ rights to free exercise of religion under the First Amendment of the U.S. Constitution or Article 36 of the Maryland Declaration of Rights because the orders were neutral, restricted large gatherings without regard to the motivation of the conduct, and the orders still allowed for religious services through other means (i.e. “drive-in” services and virtual services). In denying the plaintiff’s claims of violation of their rights to freedom of assembly and speech, the Court pointed out that the orders did not amount to a prohibition against the content of speech, but instead were based upon time, place, and manner restrictions. Further, the orders allow “ample alternative channels for communication” and “avenues for the more general dissemination of a message.”

With respect to the challenges under the commerce clause, Judge Blake upheld the orders because “the putative local benefits of closing businesses deemed non-essential are to reduce interactions between individuals that could spread COVID-19,” and such benefits are “not clearly excessive.” Further, none of the orders regulate or prohibit interstate sales, and the distinction between essential and non-essential businesses is based on the goods or services it provides and on guidance by the Department of Homeland Security, not based on whether it is a large or small business.

Electronic Logging Devices: Information and Tips on FMCSA Mandate Now in Effect

As of December 16, 2019, the Federal Motor Carrier Safety Administration’s ELD mandate has gone into full effect.  Inspectors have now started to fully enforce the ELD mandate and it is imperative that motor carriers abide by the requirements of this mandate.

Who Must Use ELDs?

Generally speaking, commercial drivers who used to maintain paper logbooks are required to transition to ELDs under the new mandate. However, there are some exceptions to this regulation. The following scenarios do not require the mandatory implementation of ELDs:

  • Drivers that focus primarily on short-haul operations that use the logbook timecard exception (i.e., 100 air-miles for CDL drivers) can continue to keep records of their daily log on paper;
  • Drivers of vehicles that have engines manufactured prior to 2000 as a result of electronic connectivity capability of the engine;
  • Drivers who operate in a driveaway-towaway service in which the vehicle they are driving is a product or commodity being delivered; and
  • Most recently, drivers who have rented a truck for eight days or less.

Of the exceptions above, the short-haul exemption and the 100 air-mile exemption for CDL drivers can be the hardest to understand. Drivers who meet the short-haul exemptions outlined in section 395.1 (e) of the Federal Motor Carrier Safety Regulations are not required to use ELDs under the recent mandate. FMCSA recognizes that these drivers occasionally do not meet the conditions of these exemptions. In those instances, drivers are required to keep a paper log. However, drivers who use a paper log more than eight days in any rolling 30-day period must start using ELDs when they are not operating under the exception.

As for the 100 air-mile exemption for CDL drivers, they are exempt from the ELDs mandate if they meet all of the following criteria:

  • Operate within a 100 air-mile radius;
  • Go off duty within 12 hours;
  • Reports back to the same work location every day; and
  • Have at least 10 consecutive hours off before starting their next on-duty period.

If even one of the above criteria is not met, then the driver will not benefit from the 100 air-mile exemption on that day. It is worth noting, however, that this exemption is optional.

While drivers operating under an exception are not required to maintain detailed logs of their duty status, they are required to keep track of their on-duty time and therefore must maintain an accurate record of:

  • The time they go on duty;
  • The total number of hours they are on duty; and
  • The time they go off duty.

Data Collection and Sharing:

For an ELD to be compliant with the FMCSA, the device must be certified by the vendor and listed on the agency’s online registry. There are some 150 different ELDs that have been registered on the FMCSA website. There are two primary options for data transfer using the ELDs; a telematics option using web-based services or email, or a local option using Bluetooth or USB.

ELDs also must be able to handle one of the two methods for backing up data transfer. You can either choose an ELD with a graphical display that an inspector can view without entering the vehicle, or having an ELD that can print the driver’s log data.

In the event that an ELD malfunctions, the damaged unit must be replaced within eight days of the problem being discovered. During those eight days, drivers are permitted to maintain paper logs until the ELD returns to standard operating procedures.

ELD Enforcement:

It is imperative that companies and their drivers understand the requirements of the ELD mandate as vehicles can be placed out of service for as long as 10 hours for an ELD violation.

Drivers must maintain a weeks’ worth of ELD data for law enforcement review. That includes metadata such as the driver’s name, time, and status. Documentation can also include bills of lading, manifests, dispatch records, expense receipts, and payroll documents. This documentation is essential if a driver needs to support his hours of service.

All jurisdictions are required to document a driver or carrier’s inspection report noting that they are in violation of the ELD regulations, which will lead to subsequent inquiries into compliance on all future stops and inspections.

ELD Unit Malfunction:

If a driver’s ELD malfunctions, a driver must do the following to comply with the new mandate.

  1. Driver must note the malfunction or error of the ELD and provide written notice to the motor carrier within 24 hours of the ELD malfunction;
  2. Driver must reconstruct the record of duty status (RODS) for the current 24-hour period and the previous seven consecutive days, and record the RODS on graph grid paper logs, or electronic software that complies with 49 CFR 395.8, unless the driver already has the records or retrieves them from the ELD; and
  3. Driver must continue to prepare RODS until the ELD is serviced and back in compliance. However, the paper log cannot continue for more than eight days after the malfunction.  A driver that continues to record HOS on a paper log or electronic logging software beyond the eight days may be placed out of service.

Written by associate Patrick Wachter.

Joint and Several Liability No More in West Virginia

Joint and several liability was abolished in West Virginia with the passage of West Virginia Code §§ 55-7-13a-d, which adopted the standard of “modified comparative fault.” See Jackson v. Brown, 239 W. Va. 316, 321, 801 S.E.2d 194, 199, n. 6 (2017); see also Travelers Prop. Cas. Co. of Am. v. Mountaineer Gas Co., No. 2:15-CV-07959, 2017 WL 116294, at *2, n.3 (S.D.W. Va. Jan. 11, 2017).  Specifically, the new statute addressing liability in a negligence claim provides that liability for all compensatory damages shall be only several, and not joint, liability. W. Va. Code § 55-7-13c(a).   However, a plaintiff can establish joint and several liability when a conscious conspiracy exists between two or more defendants.  Furthermore, joint and several liability will apply to a defendant when his or her actions involve alcohol or drug-influenced driving, criminal conduct, or alleged disposal of hazardous waste, which are proximate causes of the damages alleged by the plaintiff.

If a plaintiff is unable to collect from a liable defendant through good faith efforts, the plaintiff may, not one year after judgment becomes final, move the court for the reallocation of any uncollectible amount among the other parties found to be liable. The court may not reallocate to any defendant an uncollectible amount greater than that defendant’s percentage of fault multiplied by the uncollectible amount, and there shall be no reallocation against a defendant whose percentage of fault is equal to or less than the plaintiff’s percentage of fault.

Another important concept addressed in the new statutory scheme is that of how liability is to be determined by the jury.  Specifically, the new statute provides that liability is to be assessed against all plaintiffs, defendants, and nonparties.  Thus, the “empty chair” argument seems to have been codified and available for all defendants.  This will undoubtedly place pressure on plaintiffs to ensure that all potential defendants are joined in a lawsuit instead of simply choosing the defendants with the perceived “deeper pockets,” which the old statutory scheme permitted.

Finally, the new statute also changes the percentage of the plaintiff’s fault that precludes recovery.  The new statute provides that a plaintiff will be barred from recovery if found to be more than 50% at fault.  Under the old statutory scheme, a plaintiff was barred from recovery if found to be 50% or more at fault. Thus, potential plaintiffs may still be able to collect a judgment even if their liability is equal to that of the combined fault of the defendant(s).

For more information about this article, please contact Landon Moyer at 571.612.5950 or lmoyer@fandpnet.com.

Uneven Sidewalk is an Open and Obvious Condition

In Duncan-Bogley v. United States of America, 2018 WL 6435904 (D. Md. 2018), the United States District Court for the District of Maryland held that an uneven sidewalk in front of the United States Post Office did not pose an unreasonable risk of injury and that it was an open and obvious condition.

In Duncan-Bogley, the plaintiff filed suit against the United States Postal Service and SDC New Ridge Parkway (“SDC”) after falling on a sidewalk in front of the post office. The court analyzed existing Maryland case law regarding the duty imposed on owners, tenants, and occupiers of land. An owner has a duty to use reasonable and ordinary care to keep the premises safe for an invitee, but there is no duty to warn of an open or obvious danger. The plaintiff argued that a 0.75-inch height differential between the concrete slabs in front of the post office created an unreasonable risk of injury. In support of her argument, an expert testified regarding national standards and model codes for sidewalks. The court, noting that it was a sunny day when the plaintiff fell, and there were no obstructions around the uneven sidewalk, held that the .75-inch height differential “is the kind of minor defect for which courts have refused to hold property owners liable.”

The court then went on to hold that even if the uneven sidewalk was an unreasonably dangerous condition, it was nevertheless an open and obvious condition. Citing case law that it is common knowledge that there are uneven defects in sidewalks, the court held that, as a matter of law, a reasonable person in the plaintiff’s position exercising ordinary perception would have recognized the condition of the sidewalk.

Duncan-Bogley reinforces a duty on individuals to exercise due care for their own safety, which now expressly includes a duty to exercise care when walking on public sidewalks. The court’s decision excluded any potential factual circumstances where an obstruction prevented a person from seeing an uneven sidewalk, but it nonetheless places the duty on the plaintiff rather than a landowner for minor sidewalk defects.

For more information about this article, please contact Ellen Stewart at 410.230.2670 or estewart@fandpnet.com.

Open and Obvious Dangers in Negligence Cases

In Delaware, the “open and obvious danger” exception to negligence was recently put to the test again.

To prevail on a negligence claim under Delaware law, a plaintiff must prove that the defendant owed the plaintiff a duty and the breach of that duty proximately caused the plaintiff’s injury.  When the parties are a landowner and a business invitee, the landowner has a duty to employ reasonable measures to warn to protect the business invitee of a condition that poses unreasonable risk of harm if the landowner knows or should know of such condition.

However, there is no duty to warn of, or protect business invitees from, an open and obvious danger, known as the “open and obvious danger” exception.  An open and obvious danger is one that “creates a risk of harm that is visible… is a well-known danger, or what is discernible by [casual] inspection…to those of ordinary intelligence.”  It is a danger “so apparent that the invitee can reasonably be expected to notice it and protect against it because the condition itself constitutes adequate warning.”  Generally, whether a dangerous condition exists and whether the danger was apparent to the plaintiff are questions for the jury.   However, in “very clear cases” this is not so.

In Duran v. E. Athletic Clubs LLC (2018 WL 3096612, (Del. Super. Ct. June 7, 2018)), a plaintiff filed a lawsuit against a fitness center alleging she was injured while participating in a Zumba class when her right foot caught the edge of a mat containing weight equipment, causing her to fall into the weights. She claims she fell because she was focusing on the Zumba instructor and because overcrowding forced her to shift toward the mat.  Plaintiff claimed that the defendant permitted a dangerous condition (the mat) to exist. The defendant moved for summary judgment, arguing it owed no duty to warn the plaintiff of the “open and obvious danger.”  The defendant also argued that there was no evidence that the exercise room was overcrowded.

The court denied summary judgment, opining that because the plaintiff was moving constantly with her attention focused on her instructor as she was dancing, moving side-to-side, and changing directions in a room with 50 people with lack of ample space, the plaintiff was placed dangerously close to the mat containing the weights and the question of negligence should be presented to the jury.  In fact, the court stated further that it would only consider the “open and obvious danger” exception at the summary judgment stage in “very clear cases.”

When is it a “very clear case”?

The court did apply the “open and obvious danger” exception at the summary judgment stage in another recent case, Clifton v. Camden-Wyoming Little League, Inc. (C.A. No. K12C-06-022 (Del. Super. Jan. 21, 2014)).   Plaintiff was at a little league field and fell after stepping into a pothole, which the plaintiff described as a depression of a dirt hole in the ground in an area that was in the middle of an asphalt or concrete paved area. The incident occurred on a clear, sunny day and the plaintiff was looking in front of himself when he fell. The court opined that the pothole did not pose an unreasonable foreseeable risk of harm to any member of the public and its existence was not evidence of a defect.  The court also held that even if the pothole did pose a danger, the condition was obvious to a reasonably prudent person.  Based on these cases, it seems the court is more likely to consider summary judgment in cases where there are no distractions or other circumstances which will excuse the failure to see the alleged defect.

For more information about this article, please contact Krista Shevlin at 302-594-9780 or kshevlin@fandpnet.com.

Nuances of Virginia Workers’ Compensation Exclusivity of Remedy

The Virginia legislature established the Workers’ Compensation Act (the “Act”) and the Workers’ Compensation Commission in the early 1900s to address work-related injuries and to provide employees injured at work a quicker remedy than suing their employer (which previously was the sole option).  Workers’ compensation is essentially employer-funded insurance to provide an injured employee medical benefits, wage replacement, and even cash payments for permanent impairment—if the employee is hurt or rendered sick during the course of his employment.  The Act requires Virginia employers who have two or more part-time or full-time employees to provide workers’ compensation coverage for their injured employees’ medical treatment, lost wages, and permanent partial disability.  It is important to note that if a business hires subcontractors to perform the same trade, business or occupation, or to fulfill a contract of the business, the subcontractor’s employees are included in determining the total number of the employer’s two or more employees.

While workers’ compensation helps injured employees get medical care and wage replacement more quickly than they would by pursuing litigation, there is a benefit to employers as well.  An employer who provides the coverage is secure in the knowledge that there aren’t any non-economic damages like pain and suffering, loss of consortium, or loss of enjoyment of life, which can increase claim costs significantly, in workers’ compensation claims.  Also, workers’ compensation is an injured employee’s exclusive remedy for recovering damages related to work-related injury in most situations.  There are two exceptions.  First, if an employee is injured at work, and their employer should have had workers’ compensation coverage but did not, the employee is permitted to pursue a civil action.  Second, if an employee is sexually assaulted at work, he/she can pursue a civil action—whether his/her attacker is his/her employer or a co-worker.

This creates a “bar” on civil litigation for employees who do not fall into these two exceptions.  If an employee files a suit against an employer for a work-related injury and that employer provides worker’s compensation coverage, the employee’s suit should be thrown out.  Interestingly, workers’ compensation is also the exclusive remedy for any other person who was performing work similar to the employer’s trade, business, or occupation for the employer at the time of the workplace accident.  For example, if a roofing contractor hires a subcontractor to do roofing work and the subcontractor is injured on the job, the roofing contractor must provide him with coverage and the subcontractor must turn to workers’ compensation policy for his work-related injury as if the subcontractor was the contractor’s employee.

This also means that a contractor’s employee may not file a civil suit against a subcontractor for an injury related to the subcontractor’s work on the job—if the subcontractor was performing work similar to the employer’s trade, business, or occupation for the employer at the time of the workplace accident.  If the subcontractor was not a “stranger to the business” then the injured employee’s only remedy is workers’ compensation.  On the other hand, if the employee was injured by a subcontractor who was not performing work similar to the employer’s trade, business, or occupation for the employer at the time of the workplace accident, then the employee may file a civil suit against the subcontractor.  For example, a Ford (car manufacturer) employee can sue the manufacturer of a car door when the employee is injured by one of the manufacturer’s doors while the employee is engaged in the regular scope of his work manufacturing cars (because the door manufacturer is a “stranger to the business” of car manufacturing).

In sum, an employee involved in a work-related injury in Virginia must almost always turn to workers’ compensation for his/her damages.  Civil suits for work-related injuries filed against employers who provide workers’ compensation must be analyzed carefully to determine if they are barred under the Worker’s Compensation Act.

For more information about this article, please contact  Elena G. Patarinski at 804.932.1996 or epatarinski@fandpnet.com.