Fourth Circuit Affirms District Court’s Grant of Summary Judgment to Six Flags Confirming There Was No Negligence in the Operation of a Water Slide

A unanimous three-judge panel of the US Court of Appeals for the Fourth Circuit affirmed the US District Court for the District of Maryland’s grant of summary judgment to Six Flags.  Six Flags had been sued by a guest of its Maryland waterpark who alleged negligence in the operation of a waterslide.  The guest also sued the ride manufacturer for negligence and product liability.  Working together, counsel for Six Flags and counsel for the co-defendant were able to demonstrate that the guest’s retained expert had no sound basis nor methodology for his opinions against either of them.  The District Court granted the defense motion to exclude that expert applying well-established law to do so.  It then found that, as a matter of established law, the claim for negligence failed.  Six Flags had demonstrated conclusively that it had not deviated from the required maintenance and operational requirements at the time of the alleged injury.  Accordingly, the District Court entered summary judgment in Six Flags’ (and, on slightly different grounds, the slide manufacturer’s) favor.  The guest appealed the grant of summary judgment but did not preserve his challenge to the exclusion of his expert.  After full briefing, the Court of Appeals first found that the guest had waived the issue of the exclusion of his expert but also noted that it agreed with the District Court’s rationale and also holding there was no abuse of discretion in the exclusion of the expert.  The Court of Appeals then agreed with the District Court’s rationale and reasoning and affirmed the grant of summary judgment.  Six Flags was represented by David A. Skomba, Tamara B. Goorevitz, and Miranda D. Russell throughout the proceedings.  The case is Elkharroubi, et ux. v. Six Flags America, et al., 2022 WL 152416 (decided Jan. 18, 2022, Per  Curiam, unpublished).

F&P Welcomes Four New Associates

The last quarter of 2021 saw F&P welcome four new associates to the firm’s Baltimore and Newark offices.  We have more than 70 attorneys serving our jurisdictions throughout our seven mid-Atlantic offices. F&P looks forward to the experience and knowledge these attorneys bring to the firm.

Oleh Bilynsky joined the Delaware office and has extensive liability defense experience, practicing general liability defense, construction litigation, premises liability, and product liability. He is a member of the Delaware and Pennsylvania State Bar Associations.

Joshua Carback is a litigation associate in F&P’s Baltimore office. Josh is barred in both Maryland and the District of Columbia. Before joining the firm, he served various trial court judicial clerkships in state and federal jurisdictions. In addition to his law education, Josh participated in an overseas deployment with the International Justice Mission and a work-study at the Criminal Division of the United States Department of Justice.

Frank Falatko is the newest member of Baltimore’s liability team. He previously worked for Conti Fenn LLC, managing a substantial caseload of commercial contract disputes, defense of administrative complaints before the Maryland Insurance Administration, defense of automobile manufacturers, commercial lease litigation, and other litigation relating to land use, premises liability, and agency relationships.

Kara Hager joined the Delaware workers’ comp team, bringing experience in plaintiff work and insurance defense. She interned for the U.S. District Cort Judge Gregory M. Sleet and the United States’ Attorney’s Officer for the District of Delaware and the Bureau of Alcohol, Tobacco, and Firearms before serving as the managing attorney for the Law Offices of Peter G. Angelos.

F&P Announces 2022 Attorney Promotions

F&P is ringing in the new year by congratulating our attorneys who received a 2022 promotion, two to principal and one to counsel.  These attorneys exemplify the level of skill and professionalism that Franklin & Prokopik prides itself in and have distinguished themselves in the legal community.

Join us in applauding these members of the F&P team and thanking them for their hard work and devotion to the firm.

Scarlett Corso, principal, Baltimore

Scarlett initially joined F&P as an associate attorney in 2011.  After leaving in 2016 to gain valuable experience litigating personal injury claims on the plaintiffs’ side, and then subsequently served as in-house Counsel handling subrogation and liability defense for The Travelers Indemnity Company, she returned to the firm as Counsel in 2019. Scarlett concentrates her civil litigation practice primarily in the areas of liability defense for premises liability, trucking and transportation, and contracts, as well as liability insurance subrogation for property damage claims, focusing on electrical, fire, and water damage claims. She has taken over 15 jury trials to verdict, as well as obtained over $1,000,000.00 in recovery in her insurance subrogation practice.

Jennifer Hare, principal, Easton

Jennifer also initially joined F&P as an associate attorney in 2011.  She returned to the firm as counsel and head of our Easton office in 2019 after working as a senior staff attorney for The Hartford Affiliated Insurance Companies for six years.  Jennifer represents employers and insurers in a variety of workers’ compensation matters before the Workers’ Compensation Commission and courts throughout Maryland and Washington, D.C.  In addition, she has experience doing plaintiff work, enabling her to provide insight and knowledge into the approaches taken by both sides.

Michael Bennett, counsel, Baltimore

Mike began his legal career in 2004 as a paralegal for a small firm in Columbia, MD, and became an F&P associate in 2015.  He practices in the areas of workers’ compensation, business and corporate law, and appellate advocacy.  Mike has litigated numerous matters at the administrative and trial court levels and also briefed and argued matters at the Maryland appellate courts.

“Kudos to these hardworking, reliable, efficient, and talented attorneys.  They bring tremendous value to the F&P team, and the promotions are well-deserved!” John Handscomb, an F&P founding principal

 

Maryland’s Court of Appeals Upholds Complete Reversal of $400,000 Jury Verdict in Premises Liability Case Involving Claims of Vicarious Liability and Spoliation

On December 21, 2021, the Maryland Court of Appeals, Maryland’s highest appellate court, upheld the Maryland Court of Special Appeals’ complete reversal of a $400,000.00 jury verdict and judgment entered against one of Franklin & Prokopik’s retail clients in 2019. The case involved a customer who sued a grocery store alleging that she was struck while shopping by a stocking cart pushed by a vendor who was at the store stocking merchandise. The customer claimed that the vendor should be treated as the grocery store’s employee. The customer’s counsel, who deployed the “Reptile Theory” in opening and closing arguments, also argued that because the business had no security footage of the incident, the business must have spoliated/destroyed evidence. No evidence was offered of the existence of any pertinent video, let alone its destruction at trial. Instead, the store owner offered testimony that the store’s surveillance system did not capture the incident at issue. Over challenges raised by the retailer, the trial court allowed the jury to decide whether the vendor was an employee of the store and provided jury instruction related to spoliation of evidence. The jury found, as noted above, in favor of the customer at trial. On appeal, The Maryland Court of Special Appeals, Maryland’s intermediate appellate court, reversed the jury’s verdict and ordered that a defense judgment be entered in favor of the store. The Maryland Court of Appeals upheld that decision. Firm Principal Steve Marshall tried the jury trial and briefed and argued the successful appeals before both the Maryland Court of Special Appeals and Maryland Court of Appeals. He was joined on the brief by fellow firm Principal David A. Skomba and Associate Miranda D. Russell. 

After reviewing the facts of the case, The Court of Appeals agreed there was insufficient evidence for the jury to conclude that the store owner could be vicariously liable for the acts or omissions of an employee of a vendor. Even though the court found that the retailer had exercised some general control over the vendor’s employee, that control did not rise to the level of specific control necessary for holding the retail client liable for the vendor’s actions. The Court of Appeals acknowledged the retailers general right to order work stopped, inspect progress, make suggestions or recommendations, and to direct alterations and deviations, but held that those actions were not sufficient for permitting an inference that the retail client maintained sufficient control over the vendor such that an employee of the vendor would be considered an employee of the store. 

The Court of Appeals also held, agreeing with the Court of Special Appeals, that the jury verdict had to be reversed because the trial court gave a spoliation of evidence instruction despite there being no evidence that video ever existed or was destroyed. The Court of Appeals added clarity to Maryland law by holding that that there must be some indication that allegedly-destroyed evidence actually existed before a spoliation instruction can be given to a jury. The Court of Appeals explained this by noting that the “purpose of the instruction is to permit the jury to draw inferences about missing evidence, not to require the jury to speculate as to whether the evidence existed in the first place.” Because there was no evidence that the allegedly-destroyed evidence ever existed in the first place, the Court of Appeals found that the instruction given to the jury was prejudicial and grounds for the reversal of the verdict.   

 Finally, the Court of Appeals left the lower appellate court’s analysis of the impropriety of the “reptile theory” undisturbed. The theory, often employed by plaintiffs’ counsel, encourages the jurors to view a store as the insurer of a customer’s safety while on its premises. As noted by the lower appellate court, the theory invites jurors to disregard their oaths, to become non-objective viewers of the evidence, or to go outside that evidence to bear on the issues of damages; these purely subjective considerations are improper in Maryland. The Court of Special Appeals’ reported decision on that issue remains “good law” and will continue to serve as a basis for blocking the Plaintiffs’ bar from improperly deploying the tactic at trial. 

 This case is a significant and precedential decision that will provide clear guidance to trial courts moving forward when dealing with cases involving the actions of vendors and their employees while in a retail establishment. It also serves to guard against completely fabricated claims invented by plaintiffs that the absence of video surveillance of an incident equates to some act of destruction of evidence. The law is now clear that before a trial court can grant a spoliation instruction, the trial court must first find that there was evidence that actually existed and which was destroyed or not properly preserved.

 The reported case is Karen Webb v. Giant of Maryland, LLC (No. 12, September Term, 2021). 

The full decision can be read here: https://mdcourts.gov/data/opinions/coa/2021/12a21.pdf  

Super Lawyers Announces its 2022 Designees

F&P is proud to announce that 15 of our Maryland attorneys have been recognized by Supers Lawyers for its Super Lawyers and Rising Star designations.  Super Lawyers is comprised of 5% of the lawyers in each state. To be nominated for Rising Stars, attorneys must be in practice for 10 years or less and be under the age of 40. These attorneys represent 2.5% of lawyers in each state. The candidates are selected by peer review, professional competence, and attorney-led research staff.

Super Lawyers is a nationally recognized rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

2022 Super Lawyers:

Ralph Arnsdorf, Construction Litigation
Tamara Goorevitz, Transportation/Maritime
John Handscomb, Workers’ Compensation
Maija Jackson, Workers Compensation
Angela Garcia Kozlowski, Workers’ Compensation
Laura McKenzie, Workers’ Compensation
Michael Prokopik, Workers’ Compensation

2022 Rising Stars:

Michael Bennett, Workers’ Compensation
Renee Bowen, Transportation/Maritime
April Kerns, Workers’ Compensation
Heather Rice, PI General: Defense
Miranda Russell, Business/Corporate
Ellen Stewart, Civil Litigation: Defense
Patrick Wachter, PI General: Defense
Bryce Ziskind, Civil Litigation: Defense

 

 

Warm winter greetings and best wishes for a happy, safe, and healthy 2022!

F&P is Awarded “Best Law Firms” Designation for 2022

Best Lawyers and U.S. News & World Report have released their 2022 “Best Law Firms” rankings last week. F&P is pleased to announce that we have been recognized for the fourth consecutive year and in multiple categories.

F&P has been awarded in the following designations for 2022:

  • Metropolitan Tier 1
    • Baltimore
      • Workers’ Compensation Law – Employers
  • Metropolitan Tier 2
    • Baltimore
      • Employment Law – Management
      • Litigation – Construction
    • Washington, D.C.
      • Workers’ Compensation Law – Employers

Designations are given to firms that consistently show professional excellence and who are given high ratings from both clients and peers. To be included in the 2022 edition, firms are vetted by the Best Lawyers and U.S. News & World Report through client and lawyer evaluations, peer reviews, and additional information provided by the firm. Only the top-scoring firms are selected as finalists and awarded designations throughout three tiers.

This year the evaluations exceeded 8 million, comprised of over 115,000 attorneys and more than 22,000 firms, with just over 2,000 firms receiving recognition.

For more information and to view all of the rankings, visit bestlawfirms.usnews.com.

 

Firm Counsel Scarlett Corso is Awarded BABC’s Young Lawyers’ Division Public Service Award

Franklin & Prokopik is proud to share that firm Counsel Scarlett Corso has been awarded the Bar Association of Baltimore City Young Lawyers’ Division (“YLD”) Public Service Award for the 2020-2021 year. This award recognizes a YLD member who has devoted substantial time to public service activities or other community service initiatives. Scarlett co-chaired the YLD Public Education Committee from 2019-2021, which is responsible for the BABC’s mock trial program in which Baltimore City public middle schoolers compete, as well as BABC Law Day, in which attorneys go to various Baltimore City schools in May and teach a topic of law to students of varying ages. Scarlett has also formally served as a mentor to young lawyers for the last four years with YLD, as well as a Mentor with the Baltimore Girls’ Schools’ Leadership Coalition (“BGSLC”) representing her alma mater, St. Paul’s School for Girls, since 2016. The BGSLC brings together high school students from various all-girls schools and meets several times a year to discuss pertinent issues that affect female leadership now and in the future. Darren Kadish presented this award to Scarlett during the virtual annual meeting in June: https://vimeo.com/595374926?fbclid=IwAR0_e_IeRWN6eoCmJsxbOMKQs4TvkXByjHqUdZ5c7vs3ab5tawcmb1KmWLU. (See Minute 38:20).

F&P’s Baltimore and Herndon Offices Welcome New Attorneys

Franklin and Prokopik is pleased to welcome four associates and one counsel to its Herndon and Baltimore offices.

Scott Phillips brings almost 30 years of litigation experience to our Baltimore liability team. He handles all aspects of case management and analysis, including witness depositions, expert witness development, settlement negotiations, trials, and appeals. Scott’s practice includes the defense of toxic tort claims (including asbestos, radiation from cell phones, and alleged defective/unsafe pharmaceuticals), aviation accidents,  and claims involving trade secret/non-compete covenants, commercial leases, wage and hour violations, injunctions, construction defect, and mechanic’s liens.

Stephanie Broznowicz and Gina Musto joined the Baltimore office in workers’ compensation. Before joining F&P, Stephanie served as the Judicial Law Clerk to the Honorable Angela M. Eaves, the administrative judge of the Circuit Court for Harford County.  In that position, Stephanie assisted a total of 12 judges with preparing their daily dockets, wrote multiple opinions, and performed legal research on complex issues.

Prior to Franklin & Prokopik, Gina was on the Executive Board for the Journal of Business & Technology Law and the Vice President of the International Law Society.  While in law school, Gina served as a law clerk at Council, Baradel, Kosmerl, & Nolan, and interned for the Department of Justice, Civil Division. She is a member of the Maryland State Bar Association (MSBA) and the Baltimore County Bar Association (BCBA).

Caitlin Vannoy is a liability associate in Franklin & Prokopik’s Herndon Office.  Before joining the firm, she served as a Counselor in the Office of General Counsel at the U.S. Department of Veterans Affairs.  With a background in nursing, Caitlin brings a wealth of knowledge of the health care industry to the firm’s liability team.  Caitlin also brings experience from both the non-profit and public policy sectors.

Also joining Herndon’s liability team, Hariton Wilson previously served as a judicial clerk in the Baltimore City Circuit Court, and subsequently as a law clerk and associate attorney for two small boutique firms in Northern Virginia. Hariton’s experience has focused on litigation of business and real estate law disputes, including disputes arising from parties to residential sales contracts and disputes between business owners. Hariton also handled matters involving contractors and homeowners in disputes over construction or renovation contracts.

Principal Tamara Goorevitz Appointed to USLAW Network’s Executive Committee

F&P is pleased to share that USLAW has appointed Firm Principal Tamara Goorevitz to the USLAW Network’s Executive Committee for 2021-2022. The appointment was announced during USLAW’s annual Fall Member Business Meeting in Colorado Springs. Tamara previously served as the Chair of the Transportation & Logistics Practice Group for USLAW from 2018-2020 and on the USLAW Board of Directors.

Celebrating its 20th anniversary this year, USLAW consists of over 100 full-service law firms with more than 6,000 active attorneys worldwide. These firms can only become a part of the network by invitation and focus their practice areas primarily on commercial and business law, employment and labor law, and litigation.

Click here to learn more about USLAW and its mission.