F&P is pleased to announce the addition of five new associates firm-wide in the last eight months. Despite the pandemic causing disruptions to businesses and industries worldwide, F&P has continued to grow and we would like to introduce you to our new attorneys.

Jessica Corace joins the Baltimore liability defense team. She concentrates her practice in construction and general civil litigation. She has extensive litigation experience in toxic tort, personal injury, and breach of contract matters. She brings a well-rounded perspective having represented both plaintiffs and defendants.

Daniel Cornell is the newest member of the Baltimore workers’ compensation practice. Before joining F&P, Dan was a health law attorney with CloudMed, LLC where he appealed claim denials with insurance companies as well as state and federal agencies on behalf of healthcare systems and hospitals in the U.S. and its territories. Prior to his legal career, Dan spent time working for a trucking company based in Pennsylvania and served as a police officer in Virginia.

Ben J. Crawley-Woods, born and raised in the Eastern Panhandle of West Virginia, is the newest member of our Martinsburg office. He focused on liability defense and insurance coverage analysis before pursuing a business venture as a solo practitioner. Ben handled almost 500 cases in his general practice, taking matters to jury trial in state and federal court. His clients’ issues ranged from workers’ compensation and ERISA disputes to criminal indictments. Outside of his law practice, Ben has served as an adjunct professor of political science at Shepherd University.

Colin Grigg comes to F&P from the Baltimore City State’s Attorney’s Office where he litigated more than 80 trials, including over 25 jury trials to verdict. Colin was also a Judicial Law Clerk for the Honorable Althea M. Handy in the Circuit Court for Baltimore City.

Bryce Ziskind rounds out the Baltimore liability team with a focus on the defense of insurance carriers and private individuals. Bryce has defended clients from claims of personal injury, negligence, and breach of contract. Since joining F&P, Bryce represents clients in a variety of matters including cargo loss, catastrophic accident/injury/tort claims, general negligence, and breach of contract.

On February 25, 2021, the Maryland Court of Special Appeals reversed a $400,000 jury verdict 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 being pushed by a vendor who was at the store stocking its merchandise.  Plaintiff claimed that the vendor should be treated as the grocery store’s employee. Plaintiff’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.  There was no evidence offered of the destruction of video 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 store, the trial court allowed the jury to decide whether the vendor was an employee of the store and provided a jury instruction related to spoliation of evidence. The jury found in favor of Plaintiff at trial.  On appeal, The Maryland Court of Special Appeals reversed the jury’s verdict and ordered that a defense judgment be entered in favor of the store. Firm Principal Steve Marshall tried the jury trial and briefed and argued the successful appeal.

In reversing the trial court, the Court of Special Appeals held that a defense judgment should have been entered at the close of the Plaintiff’s case, as 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. The Court held that general control over an independent contractor’s work, such as having the vendor check in, and reviewing the vendor’s work once completed, or allowing the vendor to use a stocking cart, does not amount to the type of control that the store had to exert over the vendor’s employee in order for the store to be vicariously liable for the vendor’s actions.  As the store did not have control over the “method and operative detail” of the vendor’s work, there was no basis for establishing vicarious liability on the store owner. To that end, the Court reversed the jury’s verdict and directed the entry of a defense judgment in the case.

The Court of Special Appeals also held that the trial court abused its discretion in providing a jury instruction as to spoliation of evidence. The opinion clarified that under Maryland law before a spoliation instruction can be given to a jury, a plaintiff must establish, and the trial court must make a legal determination that evidence actually existed and was destroyed. The Court noted that in this case, Plaintiff did not meet her burden to show that direct evidence of the video surveillance footage of the incident actually existed or that it was destroyed. As such, the trial court improperly provided the instruction as to spoliation of evidence because it invited and permitted the jury to speculate regarding concealment, destruction, and failure to preserve evidence that was never shown to actually exist.  The Court found that to be significantly prejudicial to the store. Even though the Court had already directed that judgment be entered in favor of the Defendant, the Court said it would have still reversed the judgment based on the spoliation instruction and ordered a new trial.

This is also the first reported case in which an appellate court in Maryland has addressed the impropriety of Plaintiff’s attorneys’ use of the Reptile Theory in opening and closing arguments.  Specifically, the Court here admonished Plaintiff’s counsel’s use of reptilian tactics in both his opening and closing statements as encouraging jurors to make the store owner an insurer of its customers’ safety while on its premises. The Court stated that these tactics and arguments invite jurors to disregard their oaths and to become non-objective viewers of the evidence or to go outside that evidence to bear on the issues of damages; purely subjective considerations are improper in Maryland. While not determinative to the outcome of this case, the opinion provides the basis for mounting legal challenges to a Plaintiff’s bar that loves to embrace the use of the Reptile Theory.

This case is a significant 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 Giant of Maryland, LLC v. Karen Webb (No. 413, September Term, 2019).

See the memorandum and opinion here: https://www.courts.state.md.us/data/opinions/cosa/2021/0413s19.pdf.

If you have any questions regarding this case or any other retail and hospitality matter, please contact Steve Marshall at smarshall@fandpnet.com or at 410-230-3612.