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.”

Davis v. Regency Lane, LLC: When Is the Landlord Responsible for Two Fatal Shootings in the Common Area? Not When There Is No Evidence of the Circumstances Behind the Shooting.

A common issue that arises in the context of landlord-tenant relationships is the extent to which a landlord owes a duty to protect tenants and invitees against the criminal acts of third parties. Recently, in Davis v. Regency Lane, LLC, No. 1747, Sept. Term 2019 (Md. Ct. Spec. App. Jan. 28, 2021), the Court of Special Appeals revisited this issue in a reported opinion. The Davis case involved a wrongful death action against an apartment building owner, Regency Lane, LLC, brought by the estates of two teenagers who were shot and killed by an unknown assailant outside an apartment building in the parking lot. Plaintiffs alleged that Regency negligently failed to exercise reasonable care in providing adequate security measures on the premises to protect the tenants and invitees from foreseeable criminal activity. Through the course of discovery, Plaintiffs failed to provide any evidence regarding the circumstances of the shooting. The Circuit Court for Prince George’s County granted Regency’s motion for summary judgment, finding that Plaintiffs had failed to identify a dangerous physical condition that existed, that the shooting was a result of that condition, or that past criminal activities alerted Regency to the foreseeability of the deadly shootings. Plaintiffs appealed.

In its discussion, the Davis court provided a summary of the duty owed. Generally, a landlord has no special duty to protect tenants against crimes perpetrated by third parties on the premises. The landlord does have a duty, however, to exercise reasonable care, under the circumstances, in areas within the landlord’s control, such as common areas. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. The duty in that situation is to provide reasonable security measures to eliminate foreseeable harm.

For a landlord to have a duty to provide reasonable security measures, two things must be shown. First, a landlord must have the knowledge or should have knowledge based on the circumstances, that criminal activity on the premises has created a dangerous condition. Once a landlord has the requisite knowledge, the landlord must take reasonable measures to eliminate the condition contributing to the criminal activity. Second, the particular harm must be foreseeable, i.e., a landlord of ordinary intelligence, based on the nature or past criminal activity, should have foreseen the harm suffered. If the harm is not the type that would be associated with the known criminal activity on the premises, there is no duty to take measures to eliminate that harm.

The court found that there were sufficient facts in the record to support the finding that Regency had knowledge of criminal activity, and that the shootings were a foreseeable harm of that criminal activity. Therefore, Regency owed a duty to the decedents to take reasonable security measures to eliminate that harm. The court noted, however, that the appellants had not shown that a dangerous condition contributed to the shooting. The court held that “where appellants produced no evidence regarding the circumstances of the shooting, appellants could not meet their burden to show that any failure by Regency to satisfy its duty to take reasonable security measures was the proximate cause of the shooting.” The court explained that where the breach of duty is the failure of a landlord to provide security measures against known criminal activity, proximate cause will be found if “the breach enhanced the likelihood of the particular activity.”

In its analysis, the court acknowledged that proximate cause ordinarily is a question of fact. However, the court explained that when plaintiffs fail to meet their burden of showing a viable theory of causation in a negligence case, summary judgment is proper. The court again emphasized that appellants produced no evidence regarding the circumstances of the shooting, how it occurred, or what precipitated it. As such, there was no evidence to support a finding that extra security measures could have prevented the shooting. The court explained that proof of causation could not be based on mere speculation. Based on this lack of evidence, the court determined that appellants failed to show that inadequate security measures caused the decedents’ deaths. Accordingly, there was no triable issue of material fact to present to a jury on the issue of proximate cause. Therefore the circuit court properly granted summary judgment in favor of Regency.

Written by Andrew Stephenson and Colin Grigg.



Enforcement of Arbitration Provisions in the Context of Wrongful Death Claims in Virginia

Arbitration clauses are contained in a variety of contracts including those related to construction, employment, and nursing home care and they purport to require the parties to resolve their disputes through arbitration (outside the courtroom).  Generally, courts hold the contracted parties to their agreed-upon bargain.  The Supreme Court of Virginia has held that the meaning of a contract must be “gathered from all its associated parts assembled as the unitary expression of the agreement of the parties.”  Hale v. Hale, 42 Va. App. 27, 31 (2003) (quoting Berry v. Klinger, 225 Va. 201, 208 (1983)).  It has also held that the various provisions of a contract must be “. . . harmonized, giving effect to each when reasonably possible. . . .”  Schuiling v. Harris, 286 Va. 187, 193 (2013).  In addition to the existence of a plethora of common law about contract enforcement, the legislature enacted a statute aimed at the enforcement of arbitration provisions specifically.  Pursuant to Virginia Code § 8.01-581.02, upon a moving party’s showing of an agreement to arbitrate and upon refusal of the opposing party to arbitrate, the court “shall order the parties to proceed with arbitration” (emphasis added).But the enforceability of an arbitration provision within a contract is not always so simple or straightforward.  One complication arises when a party tries to enforce an arbitration provision within a nursing home contract against a plaintiff making a wrongful death claim.  Many states have refused to enforce arbitration in this context as against public policy, but Virginia does not have much controlling case law on the matter.  Luckily, the United States Supreme Court shed light on this issue by reversing a West Virginia Court of Appeals holding in 2012.  See Marmet Health Care Center, Inc. v. Clayton Brown, 565 U.S. 530 (2012).  In Marmet, three separate nursing home cases were dismissed by West Virginia state courts based on arbitration clauses included in the admission agreements.  In each of the three cases, a family member of a patient who had died sued the nursing home in state court, alleging that negligence caused injuries or harm resulting in death.  In each case, “a family member of the patient requiring extensive nursing care had signed an agreement with a nursing home on behalf of the patient” which included a clause requiring the parties to arbitrate all disputes.  Id. at 531.  On appeal, and after consolidating the three cases, the West Virginia Supreme Court of Appeals reversed the dismissals, holding that the arbitration clauses were unenforceable as a matter of public policy because they were adopted “prior to an occurrence of negligence that results in personal injury or wrongful death.”  Id. at 532.The United States Supreme Court held that that “[s]tate and federal courts must enforce the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 1 et seq., with respect to all arbitration agreements covered by that statute.”  Id. at *530.  The Court further clarified that the FAA does apply to arbitration provisions related to wrongful death suits and that “the Supreme Court of Appeals of West Virginia, by misreading and disregarding the precedents of this Court interpreting the FAA, did not follow controlling federal law implementing that basic principle (emphasis added).”  Id. at 531.  Quoting itself in a prior case, the Court stated that the “statute’s text includes no exception for personal-injury or wrongful-death claims.  It requires courts to enforce the bargain of the parties to arbitrate.”  Id. at 532-533 (citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985).Though the Marmet decision sheds light on the United States Supreme Court’s position on the matter, it is hard to tell whether and when Virginia will follow suit.  In the meantime, any arbitration provision (along with the remainder of a given contract) should be reviewed with legal counsel regularly to ensure that each clause remains enforceable over time and with changes in the law.For more information about this article, please contact Elena Patarinski at 804.932.1996 or epatarinski@fandpnet.com.


A Window into Potential Squeegee Liability

“Squeegee kids” have existed for decades. While some defend their conduct by noting that these kids are working to provide for their families and that washing windows is better than selling drugs, there has been a recent increase in heated interactions between drivers and squeegee kids.  With this increase, it is important to examine the realm of related civil liability.

During a recent incident between squeegee kids and a Baltimore City driver, a firearm inside the driver’s vehicle discharged.  Another citizen alleges he was punched by a squeegee kid while stopped at an intersection near downtown.  More often, the complaints are tamer, concerning property damage to vehicles by squeegee kids.  City officials claim to be working for a resolution though most are simply sitting by, hoping that the cold weather will put a freeze on the squeegee problem.

The Baltimore City Code expressly prohibits the use of squeegees for panhandling on city streets. Specifically, Article 19, Section 47-4(4) prohibits soliciting “from any operator or occupant of a motor vehicle that is in traffic on a public street, whether in exchange for cleaning the vehicle’s windows or otherwise.”    The Baltimore City Code further prohibits “aggressive soliciting,” which includes “(4) intentionally blocking or interfering with the safe passage of a person or a vehicle by any means, including unreasonably causing a person to take evasive action to avoid physical contact; (5) using obscene or abusive language either during the course of soliciting or following a refusal; or (6) acting with the intent of intimidating another person into giving money or another thing of value.”  Balt. City Code Art. 19 § 47-1.  Despite the city ordinance, a squeegee problem is on the rise.

It is unclear who citizens can turn to for a remedy to any property damage.  Citizens often ask whether they can sue the city for failing to enforce provisions of the code, but the answer is no; the city has discretion in enforcing its code.  However, while there is no cause of action against the city for failing to enforce the soliciting or windowing cleaning prohibitions, there may be a cause of action available to an individual if injured due to the city’s negligence.  The injured party must establish that the city owed them a duty of care, breached that duty of care, and that breach caused the individual injury.  But it is unlikely that a judge is going to find that the city owes any duty to an individual whose vehicle is damaged by an aggressive solicitor on the street.

Citizens could sue the damaging squeegee kid for bodily injury.  Intentional torts such as assault and battery are available causes of civil actions for occurrences that escalate into violence, but if an individual is washing car windows for money, he/she probably does not have the ability to pay a judgment.

An individual’s own automobile collision insurance can assist that person if his/her vehicle is damaged by a squeegee kid.  However, this leaves the innocent driver paying a deductible and the insurance company paying for vehicle repairs that, in theory, could have been prevented.  Importantly, Maryland law requires that the insurer offer collision coverage but there is no requirement for drivers to buy collision coverage.  As such, those who opted out of collision coverage will likely have to pay for their own property damage caused by squeegee kids.

Given the City’s lack of liability or action with respect to the squeegee kids, the best option to avoid unnecessary expenses is to find alternative routes.

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

Maryland SB 101 Expands Scope of Pre-Suit Discovery of Policy Limits

During Maryland’s 2019 legislative session, the General Assembly significantly expanded pre-suit discovery of specified insurance coverage information by passing SB 101.  Under the prior law, insurers were required to provide a claimant of a motor vehicle accident documentation of the applicable limits of liability coverage in any insurance agreement under which the insurer may be liable within 30 days after receipt of the claimant’s written request, regardless of whether the insurer contested the applicability of coverage to the claim.

SB 101 expands this pre-suit discovery in two ways.  First, the bill expands the scope from claims involving only motor vehicle accidents to claims pertaining to other torts involving bodily injury or death, applicable to any automobile, homeowner’s or renter’s insurance policy.  Second, SB 101 expands the documentation a claimant must produce in order to receive this information.  Previously a claimant was required to submit (1) the date of the motor vehicle accident; (2) the name and last known address of the alleged tortfeasor; (3) a copy of the vehicle accident report, if available; and (4) the insurer’s claim number, if available.  SB 101 additionally requires that claimant’s produce a letter from an attorney, admitted to practice law in the state, certifying that (1) the attorney has made reasonable efforts to investigate the underlying facts of the claim; and (2) based on the attorney’s representation, the attorney reasonably believes that the claim is not frivolous.

It is important to note that an insurer may not be civilly or criminally liable for the disclosure of this documentation and disclosure does not constitute an admission that a claim is subject to the applicable insurance agreement.  Disclosure similarly does not waive any terms or conditions of the insurance agreement, including any potential defense concerning coverage or liability.  The documentation provided by an insurer in accordance with this SB 101 is not admissible as evidence at trial by reason of its mandatory disclosure under the statute.

Through passing SB 101, the legislature has provided a larger class of potential tort claimants access to the policy limits.  Potential claimants (and their counsel) that previously may not have known this information will now be better positioned to negotiate resolution of pre-suit claims with the applicable policy limits in mind.  This expansion of pre-suit discovery requirements applies only prospectively to claims filed with an insurer on or after October 1, 2019, SB 101’s effective date.

For more information about this article, please contact Ryan Posey at 410.230.1017 or rposey@fandpnet.com.

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.

The Rise of Falling Off of Dockless Scooters

Major cities throughout the United States have seen a rise in the number of residents using scooters emblazoned with names like “Bird Rides” or “LimeBike”.   The scooters, referred to as “dockless” because they do not have a fixed home location, can be picked up from and dropped off at arbitrary locations within the scooter’s service area.  Users utilize an application on their mobile device to unlock the scooter and to pay for its use, the amount of which is based on the duration of the use.  The mobility of these vehicles makes them largely attractive to commuters and city residents alike as “scootersharing” can be hyper-localized, whereas other forms of shared mobility (think the more commonly known bike share) require set docking stations that are often placed far apart in distance.

However, while convenient, areas that introduce dockless scooters into their communities have seen a spike in scooter related accidents, including “severe” injuries, and in one case, death as a result of blunt force injuries to the head. These injuries are often sustained as a result of “user error”, scooters malfunctioning or flipping over on uneven surfaces or when users are hit by cars or collide with pedestrians.[1]  Such accidents have lawyers across the nation wondering just who is responsible in such situations.

In Maryland, there is little guidance on the issue of liability for scooter accidents.  Baltimore only entered into agreements with scootersharing companies Bird Rides and LimeBike in August 2018, so questions still remain unanswered about the extent of liability, if any, for which the companies will be responsible.  Other areas of Maryland, such as Montgomery County, allow for dockless bikes and are considering expanding to dockless scooters.  During the yearlong pilot program with dockless bikes, the Montgomery County Department of Transportation reported few problems or complaints and a survey of residents showed strong support for continuing the program.  As scootersharing is so new to the state, the Maryland Transportation Code does not contain a provision for or definition of “scooter”, the closest being a provision for “bicycles and motor scooters.”  It remains to be seen whether the legislature will create one so as to include dockless scooters.

Contractually, the use agreements between scootersharing companies like Bird Rides and LimeBike and the City of Baltimore require that the companies indemnify and defend the City against any claims for liability whether in contract or tort.  Each company is required to maintain Commercial General Insurance at limits of not less than One Million Dollars ($1,000,000.00) per occurrence as well as Business Automobile Liability Insurance at limits of not less than One Million Dollars ($1,000,000.00) per occurrence, and each company shall include the City of Baltimore as an additional insured on its policy.

In regard to individual riders, when downloading the app necessary to use a dockless scooter, users must agree to the company’s terms and conditions which includes a waiver for any liability and damages. Both LimeBike and Bird Rides encourage users to obey traffic laws and wear helmets while riding a scooter and LimeBike requires riders to go through an “in-app tutorial” on helmet safety in order to unlock a company’s scooter for the first time.   However, neither company provides helmets with its scooters.  Ultimately, while it is unlikely that every user understands that they are agreeing to such a waiver by utilizing the dockeless scooter app, riders are contractually responsible for the injuries that they sustain as a result of the ride and may even be found contributorily negligent for failing to ride safely with a helmet.

Of course, there are exceptions to every rule and even if treated like a bicycle, there is potential exposure of liability to a scooter company if the user can prove that his/her injury is a result of a scooter malfunction. In October 2018, a class action lawsuit was filed in Los Angeles Superior Court against Lime and Bird alleging, among other things, products liability and gross negligence.

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

[1] https://www.washingtonpost.com/technology/2018/09/20/fatal-e-scooter-accident-emerges-just-california-legalizes-riding-without-helmet/?utm_term=.b19da64992ea