Important Maryland Cases: Coleman v. Soccer Association of Columbia, 432 Md. 679 (2013)

The Court of Appeals reaffirmed Maryland’s long-standing doctrine of contributory negligence in Coleman v. Soccer Association of Columbia. Judge Eldridge wrote for the majority, while Judge Green concurred separately with three other members of the Court joining, affirming the capacity but not the wisdom of the Court’s alteration of Maryland law on this point. Judge Harrell, with Chief Judge Bell joining, wrote a strong and lengthy dissent critiquing the doctrine as perhaps the last of the dinosaurs not killed by an asteroid or other extinction event 65 million years ago.

Coleman was a soccer player who, after kicking a goal, reached up to grab the crossbar of the goal which had been inadequately anchored; the grab pulled the crossbar down onto Coleman’s face, resulting in severe injuries. The jury found factually that both the Soccer Association and Coleman had contributed negligently to the injuries that he sustained, which finding barred any recovery under Maryland’s contributory negligence doctrine.

Judge Eldridge’s 15-page majority opinion held that for the Court to exercise its power to change the common law of Maryland would be “inconsistent with the Court’s long-standing jurisprudence.” The 4-page concurrence took a slightly softer take on the issue, holding that the Court had the power to change common-law legal doctrines, had done so previously and that there was merit to preferring comparative negligence over contributory negligence. The concurrence noted, however, that it was better merely to encourage the General Assembly to consider the changes rather than to force the General Assembly to take action in response to an alteration of Maryland law, and that a change from contributory negligence would have practical effects on other tort doctrines and statutes best analyzed by the General Assembly.

Judge Harrell’s 51-page dissent explicitly stated that it was speaking not to the majority opinion in dialogue but into the future to provide guidance to a later composition of a Court of Appeals that would in fact overturn the contributory negligence doctrine, relegating it to a “tar pit” of judicial paleontology. The opinion makes a strong case for “pure comparative fault” as the preferred doctrine, by which even a mostly culpable tort plaintiff may make a claim for partial recovery for some damages. The dissent provides an exhaustive analysis of the Maryland General Assembly’s efforts to reconsider comparative fault and the judicial and legislative acts of other states in adopting comparative fault.

At present, Maryland, Virginia, North Carolina, Alabama and the District of Columbia are the only jurisdictions that maintain the contributory negligence doctrine. Conservative, pro-business states like New Hampshire, Texas, Utah and Alaska have rejected it. I often joke that in many ways Maryland is “England junior”, holding more firmly than most states to the common law as a right and entitlement of the inhabitants of Maryland (Md. Dec. of Rights Art. 5(a)(1).) Notwithstanding the dissent, Maryland’s courts have not been quick to change the common law. This case reinforces that observation. One suspects, however, that the next General Assembly will have a lot to consider from Judge Harrell’s lengthy dissent.

Important Maryland Cases: Martens Chevrolet v. Seney, 292 Md. 328 (1982)

In Martens Chevrolet v. Seney, 292 Md. 328 (1982)the Court of Appeals affirmed the existence of a tort of negligent misrepresentation in Maryland separate from the tort of fraud/deceit.

The Court interpreted the record in the light most favorable to the plaintiffs in rendering its ruling, since the trial court entered on the count of negligent misrepresentation a directed verdict at trial.  In the Court’s factual summary, would-be buyers of a car dealership received from the sellers an informal financial statement to the effect that the dealership was mildly profitable and, believing that they could make a weak but technically profitable business better, agreed to purchase and ultimately purchased the dealership.  The sellers’ accountants had prepared more rigorous financial statements that showed very substantial losses, but the sellers did not provide those statements to the buyers nor any notice of their existence.  Upon learning of the true financial position of the dealership. the plaintiffs sued for inter alia deceit and negligent misrepresentation.

The Court noted that at common law, no tort of negligent misrepresentation existed; one needed to prove outright fraud or deceit in order to prevail.  In 1938, the Court of Appeals did recognize a tort of negligent misrepresentation in cases where there was a physical injury, but by implication the holding in that case, Virginia Dare Stores v. Schuman, 175 Md. 287 (1938), was limited to physical injury.  The Court allowed for pecuniary losses from negligent misrepresentation in the 1960s, but expressed some reason for doubt regarding the viability of that tort in a prior case Delmarva Drill Co. v. Tuckahoe Shopping Center, 268 Md. 417 (1973).  In this case, the Court overruled Tuckahoe to the extent that it appeared to eliminate the tort of negligent misrepresentation.

The Court proceeded to state the elements of the tort of negligent misrepresentation:

(1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement;

(2) the defendant intends that his statement will be acted upon by the plaintiff;

(3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury;

(4) the plaintiff, justifiably, takes action in reliance on the statement; and

(5) the plaintiff suffers damage proximately caused by the defendant’s negligence.

and emphasized that it was permissible to plead both deceit and negligent misrepresentation in the same pleading under the Maryland Rules. The Court ruled that the Circuit Court erred in entering a directed verdict on the negligent misrepresentation tort against the plaintiffs, in that the evidentiary record was sufficient to allow a jury to find in favor of the plaintiffs and that the tort did indeed exist in this State.  The Court also entered rulings on more collateral evidentiary issues in the case on remand.

This case matters for four reasons. First, it represents the development of Maryland common law in derogation of, or supplement to, the common law of England as it stood on Independence Day 1776, which law is until changed by statute or ruling an entitlement of the people of Maryland.  Second, it represents an effort by the Court to reverse a (mis?)interpretation of its fairly recent prior precedent.  Third, it moves the public policy of Maryland away from the overall rule of caveat emptor to a rule mandating the same sorts of duties of reasonably prudent care in speech inducing reliance that we apply in the most of the rest of human endeavors.  Finally, it does a nice job (as the Court of Appeals often does in its “signaling” cases) of providing to the law student or practitioner a concise black-letter law kernel for pleadings and practice going forward.

Important Maryland Cases: State v. Werkheiser, 299 Md. 529 (1984)

The Court of Appeals of Maryland decided in State v. Werkheiser, 299 Md. 529 (1984), that the failure by the police to administer an alcohol test properly as mandated by statute in a drunk driving case did not mandate the dismissal of the charges, but did justify to the motorist a favorable inference about what the results would have been.

In Werkheiser, the office responding to a one-car accident did not direct a qualified medical person to administer to the unconscious driver/defendant a blood alcohol test as required by Maryland statute.  At trial in Queen Anne’s County, the presiding judge dismissed the charges, holding that the State had denied the defendant due process by violating its own mandatory requirements.  On appeal to the Court of Special Appeals, the Court of Appeals (Maryland’s highest court, for visitors to this site from out-of-state) intervened and took the case.

The Court noted that the mandatory language of the blood alcohol test statute did not provide a remedy in the event of a breach of the statute, and looked to the intent and purpose of the statute overall in determining a remedy.  The Court noted that the purpose of the statute was to facilitate the prosecution of drunk driving charges and the protection of the public, and that no provision of the law made administering the test a prerequisite of any prosecution.  It noted further that the General Assembly provided for the exclusion from evidence at a drunk driving trial of a refusal to take a breath test and of the results of a preliminary breath test (PBT) administered in the field, drawing from those provisions that had the General Assembly wanted to preclude prosecutions when a blood alcohol test was not administered properly, it could have done so and did in fact make similar provisions in other areas of criminal law.

The Court cited with approval a Colorado case that noted that “the State must not suppress evidence, but it need not gather evidence for the accused.”  The Court indicated that the best remedy was a favorable inference to the defendant regarding what the result of the test might have been had it been administered properly, to be weighed with all other evidence including the intention of the law enforcement officer who failed to administer the test.  The Court noted that other provisions of the law did not bar the introduction of other evidence when a alcohol test result was introduced, and that it was logical not to bar other evidence when such a test was not introduced.  Reversing the dismissal. the Court of Appeals remanded the matter for trial back to the Queen Anne’s County Circuit Court.

This case has practical applications for the more common DUI alcohol breath test.  If an officer fails to offer a breath test, or induces a motorist per State v. Forman into refusing the test through a deviation from the DR-15 Advice of Rights “script”, Werkheiser may allow a favorable inference.  There is no constitutional right of a defendant to a breath test or a breath test result.  Werkheiser should be read in harmony with State v. Forman (inducement by an officer deviation from the DR-15 “script” may result in a “no action” at a license suspension hearing) and Brosan v. Cochran (defendant has a right to counsel, though not a right to be notified of that right, before deciding to take or not to take the breath test.)  Case notes on these two cases will appear later in this Important Maryland Cases series on this blog.

Important Maryland Cases: Fellner v. Bar Association of Baltimore City, 213 Md. 243 (1957)

Newer Maryland attorneys, this is the case to which the “old-timers” in your office may reference as the “slug” case. Every Maryland attorney needs to know this case.

In Fellner v. Bar Association of Baltimore City, 213 Md. 243 (1957), the Court of Appeals disbarred an attorney based upon proof that he had employed slugs as a means of stealing parking meter time from the City of Baltimore in a municipal lot. Fellner stands for two main propositions valid to this day:

1)  that a criminal conviction for conduct prejudicial to the administration of justice is not necessary to disbar an attorney for that conduct; and

2) even relatively small thefts or misappropriations of money or benefits/services valued in money may result in disbarment.

In Maryland, prosecutions of attorney discipline cases now occur before the Maryland Court of Appeals after a substantial administrative process before the Attorney Grievance Commission.  The Court of Appeals generally delegates the conduct of an evidentiary hearing to a Circuit Court.  Bar Counsel exists as a state agency.  These facts were not the case in 1957; at that time, local Bar Associations had standing to prosecute attorney discipline cases before courts of general jurisdiction.  Those courts would make not only findings of fact but also specific recommendations of discipline including disbarment in certain cases; the Court of Appeals would review the proceedings and the recommendations.

In Fellner, the Supreme Bench of Baltimore City (equivalent to a Circuit Court elsewhere in the State and today named the Circuit Court for Baltimore City) made a factual finding that Fellner had used slugs as a means of stealing parking time.  While the evidence was not absolutely clear, the logical conclusion based on the operation of the parking meter was that the last coin into the meter was a valid nickel, visible through an window on the meter known as a “Scotch Eye“, but that the motorist had used quarter-sized slugs to obtain parking time.  The meters charged 5 cents per hour; two quarter-sized slugs followed by a valid nickel would cost only 5 cents for 10 hours of parking (plus the price of the slugs, whose value was not determined.

Upon investigation of several slug incidents at the meter, motorist and attorney Fellner was arrested and the vehicle in question was registered to Fellner’s wife.  (The opinion did not identify the opinion of either Mr. or Mrs. Fellner.)  Mr. Fellner was charged with a violation of the Maryland Annotated Code, Art. 27 (the old Criminal Law article before recodification), section 74.  At the time, the articles and sections of the Annotated Code of Maryland were often numbered in alphabetical order, i.e. attorneys were covered in article 10, while crimes were covered in article 27, etc.  Apparently, this method did not appear self-evidently insane to prior General Assemblies of Maryland.  Most numbered articles have been recodified into topical articles, i.e. Criminal Law article, Transportation article, etc.  It is unclear from at-hand resources what precise crime section 74 defined, though I’d be grateful for any “old-timers” with a still-intact Article 27 who can so advise; I do not believe that it was theft/larceny itself but another crime.

Regardless, Fellner did not admit to the crime and was not convicted thereof either, but instead pled nolo contendere, certainly not the last Marylander to attempt that plea with mixed success.  Maryland law at the time provided for disbarment upon a conviction of a crime of moral turpitude.  The Court of Appeals noted, however, that it was not upon the court disposition itself but rather the testimony of the same witnesses in the disciplinary proceeding that supported a finding of conduct “prejudicial to the administration of justice” which phrase later became incorporated into Maryland Rule of Professional Conduct 8.4(d) (cognate to the ABA Model Rule.)  It was not the nolo contendere plea but the actual evidence itself that demonstrated conduct prejudicial.

In today’s misconduct rule 8.4, conduct that involves deception or deceit is misconduct even if it does not involve prejudice to the administration of justice, per se.  The Court of Appeals has, however, interpreted a number of forms of conduct as prejudicial to the administration of justice even if that conduct does not implicate either deceit or the court system itself, such as willful failure to file federal income tax returns.

Back to Fellner.  The Court also addressed the point regarding the arguably trivial size of the amount of damage to the Mayor and City Council of Baltimore and the severity of the sanction, namely disbarment.  Citing its prior Meyerson decision, the Court of Appeals reaffirmed that no “… moral character qualification for Bar membership’ is more important than truthfulness and candor.”  The Court noted that Mr. Fellner gave a fictitious name to law enforcement and denied in his disciplinary pleadings any involvement in the offense up through the disciplinary proceeds themselves, but was found with a bag of slugs inside the car in question.  Fellner refused to take the stand in the disciplinary hearing, however, a fact that the Court of Appeals noted as adverse to his disciplinary case since, unlike in a criminal proceeding, an attorney-respondent has no right to practice law or to remain silent within the attorney disciplinary context.  Finding the recommendation of the Supreme Bench well-reasoned and amply justified by precedent and evidence, the Court of Appeals disbarred Fellner.

This case is fairly well known as the “slug case” but Mr. Fellner’s bad acts included more than just stealing parking time with one 25 cent slug; he lied to the police, formed an apparent scheme by which to continue to steal parking time and refused to take the stand in his own defense at the disciplinary proceeding even after the Court had accepted a nolo contendere plea in his criminal case.  Fellner is still good law and the Court of Appeals has cited it many times even in recent decades (you can Shepardize the case to confirm this.)  The triviality of the size of the theft – literally mere coins’ value of parking time – did not in any way mitigate the wrongful character of the attorney’s acts.

If you have a law license, and especially if you supervise other attorneys’ conduct, you should read Fellner as, despite major procedural changes since 1957, it is still good law in this State.