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The Ever-Evolving Case Of Negligence

Posted on: December 7, 2015

It often happens in our society that one person will do something that leads to the injury of another. Every single day folks are injured by the negligent actions of another person. In many cases it is actually the lack of an action, or inaction, (omission) of someone that results in injury. The law recognizes that under certain circumstances people should be held legally accountable for not doing something when their inaction causes an injury. However, in order for negligence to be established for a failing to act, the law must usually first find that there was a duty to act. This is sometimes referred to as a “duty of care.”

For example, when a driver fails to hit the brakes and sends their car crashing into the car ahead of them or a trucker forgets to secure a heavy load that falls off the trailer at 60 mph, the victim of this “inaction” usually can successfully bring a claim for negligence against the tortfeasor. The victim in the above examples could reasonably argue that the driver who rear ended her, had a duty to act reasonably, and failed to do so under the circumstances. Or, alternatively, that the trucker had a duty to safely secure his cargo, and that his failure to do the same in a reasonable manner constitutes a breach of his duty to do so reasonably and therefore was negligent. The bottom line here is that in many cases, it is possible to clearly show that someone’s action or inaction was the proximate cause of harm caused to another person.

More Complicated Cases of Proving Negligence: Example Lead Paint

Sometimes proving whether someone’s action or inaction constitutes negligence is not so easy. For example, the Maryland Court of Special Appeals recently reexamined and explained the facts a plaintiff needs to establish, in order to prove a negligence case arising from exposure to lead paint. In the past, it has been required that a plaintiff show that the defendant owed a duty to the plaintiff. Typically, a Defendant in these types of cases is a landlord or building owner who owes the plaintiff a safe place to live or work. (I.e. have affirmative duty of care.) Next, the Plaintiff would have to show a breach of that duty. (Demonstrate positive evidence of lead paint on the premises.) And finally the victim would need to show some type of harm proximately caused by the Defendant’s negligence. Here’s where things get tricky.

Ms. Barr’s Apartment

Patricia Barr brought a negligence claim against her landlord claiming that her apartment was painted with a lead-based paint. During the litigation, Barr was unable to produce direct evidence to the court of lead paint. Basically, she was unable to have the paint tested prior to leaving the apartment building and I am assuming here that the evidence was ultimately not retained or was otherwise destroyed. Accordingly, she argued based on circumstantial evidence, that she was lead poisoned by the building she previously resided in. The circumstantial evidence was principally, the unusually high level of lead in her bloodstream. Thus she argued, that the building which was 90 years old, must be painted in lead paint. The Maryland High Court disagreed.  Rather the court held that the plaintiff has an obligation to demonstrate that there was no other possible source of lead paint. Interestingly, this would normally seem to be the obligation of the defendant to demonstrate another source of the plaintiff’s injury after Plaintiff presented some evidence of the same, often called an affirmative defense. But here, the court practically shifted the burden of proof on these issues to the plaintiff.

The side effects of lead paint and liability for landowners has been a hot topic in Maryland for over a decade. Nevertheless, the above case is telling for more than simply lead-based-paint-litigation aficionados. Simply put, the opinion of the court is demonstrative of the tangled worlds of negligence, proximate causation, personal injury, and justice. Who must prove what is not always clear.

At least from our perspective, underestimating the twists and turns a plaintiff might face after suffering a catastrophic personal injury is dangerous, to say the least.

Justin Katz is a personal injury lawyer who represents injury victims in Maryland, Virginia and Washington DC
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