Important Maryland Cases: Owens-Illinois, Inc. et al., v Zenobia, et al., 325 Md. 420 (1992)

In Owens-Illinois, Inc., et al., v. Zenobia, et al.,  325 Md. 420 (1992), the Maryland Court of Appeals enunciated a “malice” standard for punitive damages in Maryland.

Plaintiffs Zenobia and Dickerson in the original cases were victims of asbestos exposure and sued several defendants who produced, supplied or installed products containing asbestos.  At trial, the only theory of liability was strict liability. The jury awarded both compensatory damages against five defendants for Dickerson and four defendants for Zenobia and awarded further punitive damages against three defendants in favor of Dickerson and against two Defendants in favor of Zenobia. Pursuant to a stipulation, all defendants were considered to have cross-claimed against each other,  and one defendant with whom Plaintiffs had struck a settlement found itself in bankruptcy.  The procedural posture of these cross-claim awards is relevant to the case but not to the ultimate precedential value of this case as a major Maryland case.

On appeal by the five of the Defendants to the Court of Special Appeals, that Court upheld all of the compensatory damage awards but did reverse the punitive damages against one defendant only, Porter-Hayden Co.  Zenobia and Dickerson cross-appealed

Owens-Illinois, Inc, Porter-Hayden Co. and defendant MCIC petitioned the Court of Appeals for certiorari on several issues involving improper jury instructions on duties to warn, improper admission of deposition evidence and, in the case of Owens-Illinois, the propriety the punitive damage award.  Zenobia and Dickerson filed conditional cross-petitions for certiorari on the issues of contribution and indemnification among the Defendants, issues that they had raised before the Court of Special Appeals; the petitions were conditional upon the granting of the prior certiorari petitions.  In response to Zenobia’s and Dickerson’s conditional cross-petitions, Anchor Packing Co. then filed a petition for certiorari on four issues.

Confused yet?  The Court of Appeals granted all petitions for certiorari.

The Court’s opinion addressed issues involving the admission of deposition testimony and the denial of a motion for a new trial in its first three sections, but those issues do not constitute the primary precedential value of the case i.e. what makes this case a “Important Maryland Case.”  In section IV of the opinion, the Court engaged in a lengthy discussion of the standards for punitive damages in a strict liability products liability case, with the intent to examine the characterization of a trial defendant’s conduct in such cases, define precisely the standard which in a non-intentional tort case may give rise to punitive damages and in fact to heighten that standard.

The court discussed and, for non-intentional tort purpose, ultimately dismissed the “Testerman-Wedeman” standard, named after two prior cases.  In those cases, the Court of Appeals had ruled that in the context of a contractual relationship, conduct occurring before the formation of a contractual relationship could give rise to punitive damages on a finding of “implied malice”, i.e. wanton or reckless disregard, whereas under that prior standard punitive damages for conduct occurring after the formation of a contractual relationship could lie only on a showing of “actual malice,” that is, “evil motive, intent to injure, fraud, or actual knowledge of the defective nature of the products coupled with a deliberate disregard of the consequences.”  The Court of Appeals explicitly abandoned that rule in this case because the purpose of punitive damages is to punish heinous conduct by a defendant, regardless of when that heinous conduct occurred.

The Court proceeded to examine the historical standard of “actual malice” for punitive damages, noting that in one 1972 case involving a motor vehicle accident the Court had allowed punitive damages upon a showing of mere implied malice, i.e. gross negligence, but warned in that case against the broader application of a more liberal standard.  Notwithstanding the limitation warning, a number of subsequent cases in Maryland relied on Smith v. Gray Concrete Pipe Co., 267 Md. 149 (1972), more liberal standard outside of motor vehicle cases.  The Court proceeded explicitly to overrule Smith upon a review of the policy arguments against the inconsistent results that had occurred in facts with similar cases and after examining how Maine’s Supreme Court had recently modified its implied malice standard in similar cases.

The Court proceeded to note that in a products liability case, it is difficult to show “actual malice” by a manufactureras previously defined as evil intent, intent to injure, ill will, or fraud.  The Court then stated that actual knowledge of a defect and associated danger connected therewith, and a conscious or deliberate disregard of that danger to consumers, together constituted the product liability standard for “actual malice.” The Court emphasized that mere constructive knowledge or “substantial knowledge” are not enough to meet this standard.  The Court stated further that a punitive damages claim was possible from a strict liability or negligence-based tort theory, if the facts otherwise met the punitive damages standard.  Perhaps most significantly, the Court followed the reasoning of several other U.S. courts in applying a heightened standard of “clear and convincing evidence” to any tort claim for punitive damages, reflecting their penal nature and potential for debilitating harm.

The Court noted that its change of the evidentiary standard for punitive damages was a change to the common law within the Court’s constitutional jurisdiction, and would apply prospectively to all trial started from that day forward.  On the other hand, the Court deemed its overturning of Smith and the Testerman-Wedeman standard not to be a change to the common law but rather an overruling of decisions that were decided erroneously, and therefore the law would apply retroactively to any case where the issue had been properly preserved for appeal.  The Court remanded the plaintiffs’ claims back for a new trial under the narrowed legal standard and the heightened evidentiary burden, to the extent applicable under the evidence presented by all parties that the new trial.

Judges McAuliffe and Bell (the latter later Chief Judge) issued separate opinions.  Judge McAuliffe concurred in the result of the majority opinion but urged that in cases where a defendant met a standard of depraved indifference short of “intent” which could satisfy the “malice” standard for common-law murder, punitive damages should be at least theoretically available since in both cases the intent of the law was to punish.  Judge Bell concurred with the majority in the overruling of Smith and the Testerman-Wedeman doctrine but dissented strongly as to the raising of the standard for punitive damages to “actual malice”:

“In cases where there is no actual malice, the totality of the circumstances may reveal conduct on the part of a defendant that is just as heinous as the conduct motivated by that actual malice and, so, for all intents and purposes is the same.”

Zenobia‘s influence on tort law in Maryland has been rather strong.  One year after Zenobia, the Court of Appeals went on to hold in Komornik v. Sparks (which this Important Maryland Cases series will cover at a later date) that even in cases involving drunk driving – which criminal courts can punish with incarceration – punitive damages cannot lie in the absence of a finding of actual malice.  A cautious person may ask: if a court can punish a wrongdoer with punitive jail to prevent a harm, why not with punitive civil damages that go to an actual human victim of the conduct which the criminal statute seeks to deter, restrain and punish?  Regardless of one’s opinion of the opinion, Zenobia is a mandatory read for any Maryland tort litigator and definitely qualifies as one of the most Important Maryland Cases.

Important Maryland Cases: Diehl v. State 294 Md. 466 (1982)

Important Note: The Law Office of Bruce Godfrey takes no position as to the legal, political or social merits of recent “occupy” political demonstrations such as “OccupyBaltimore” or “OccupyWallStreet,” and is not a participant in such demonstrations. The purpose of this post is to discuss law that may be relevant to such news events.  Also, this post contains a professional discussion of language laws and First Amendment obscenity/indecency that is not suitable for most workplaces; you are hereby WARNED of the NSFW character of this article.

In Maryland, one has a clear right to resist an illegal arrest and to shout the word “Fuck” at an officer who is attempting to conduct such an illegal arrest. In a 4-3 decision that has been cited by a number of other courts, the Maryland Court of Appeals held in Diehl v. State, 294 Md. 466 (1982), that the word “fuck” used as an expression of dissent towards illegal conduct did not constitute disorderly conduct and could not be prosecuted at all absent compelling circumstances.

In Diehl, the Defendant was exiting a stopped car when an officer ordered him back into the vehicle.  The Defendant refused, stating that he knew his rights and had the right to leave the scene on foot.  The officer, Chief Gavin, told Diehl that he would be arrested if he did not re-enter the vehicle; Diehl responded with the phrase ultimately at issue in the case, “Fuck you, Gavin.”

The Court of Appeals held that such a phrase could not be prosecuted in itself as a violation of the Maryland disturbing the peace statute, which prohibited “willfully disturb[ing] any neighborhood …. with loud and unseemly noises” or “profanely curs[ing] and swear[ing] or us[ing] obscene language in any neighborhood.” As a matter of statutory construction, the Court of Appeals held that Diehl’s word did not willfully disturb anyone and did not constitute “loud or unseemly noises” since Diehl’s words were clearly communicative speech rather than mere “noises.” Similarly, Diehl’s words were deemed not “profane” in the sense of religiously blasphemous nor “obscene” as defined under Supreme Court obscenity insofar as “Fuck” here expresses anger or indignation rather than erotic interest. Accordingly, there was no basis whatsoever for finding that “Fuck you, Gavin” violated the disturbing the peace statute.

The Court further held that the Diehl’s words did not constitute a provocation to Gavin himself to breach the peace. After reviewing Supreme Court jurisprudence on “fighting words” the Court of Appeals held that Diehl’s use of “Fuck you, Gavin” did not constitute the sort of abusive epithet prohibited as “fighting words” but merely constituted an objection to a meritless order not to leave an automobile under threat of arrest, which the Court noted was an illegal threat given a lack of probable cause for any crime by Diehl.

From the opinion:

“We conclude, therefore, that where, as here, a person is acting in a lawful manner (a passenger getting out of a stopped car) and is the object of an unlawful police order, it is not usually a criminal violation for such person to verbally protest a police officer’s insistence upon submission to such an order.”

Diehl at 479.  The Court of Appeals went on to note that the charge of resisting arrest lacked merit as a matter of law under established precedent, since under Maryland law one had a clear right to resist an unlawful arrest by reasonable force and no probable cause existed for any arrest.

I am not certain that a content-based restriction on “blasphemous” references to the Deity or religious object would survive First Amendment scrutiny.  In many predominantly Catholic parts of the world, religiously-themed vulgarities predominate over sexual and excretory ones.  The word “calisse” (literally meaning “chalice”) and the much stronger “tabernac” (“tabernacle”) are so commonly used as a vulgarity in Quebec that some Catholic bishops actually took out ads explaining that “calisse” and other similar terms referred to Catholic liturgical equipment and concepts and were not merely a curse word.  In Bavaria one can still hear “Sakrament” as a strong oath.  Words like “fuck” and “cunt” which are truly severe in American English are not as shocking among, say, Francophone Quebecers or Irish speakers of English.  I am not a scholar of the right to curse or to blaspheme in America or in Maryland, but would be skeptical that the use of “blasphemy” conveying even the slightest substantive content could be prosecuted.

As for those who would be participating in any “occupy” events, there is a lot to consider. One has some protection of your right to express yourself with vulgarities, if it’s really necessary (and wise?)  One has the right to resist an illegal arrest; that is well-established, though an arrestee might have to win a few appeals to get that right upheld.  And, not to put to fine a point on it, the Chief Judge of the highest court in this state was arrested for political activism at age 16 in lunch-counter sit-ins for civil rights.  Whether any participant in any demonstration wants to spend a few years talking with trial and appellate lawyers – that’s a tougher question.

(None of this constitutes legal advice or creates a lawyer-client relationship with ANYONE – this is mere political commentary.)

Important Maryland Cases: State v. Atkinson, 331 Md. 199 (1993)

Boyce Atkinson was charged with driving while intoxicated in Harford County.  His attorney at trial agreed to with the State to a not guilty statement of facts, recounting that Mr. Atkinson was found slumped over in the driver’s seat with the keys in the ignition and engine off.  Upon being awakened by the officer, Mr. Atkinson emitted a strong, also described as “very strong” odor of an alcoholic beverage.  Per the statement of facts, Mr. Atkinson  declined the officer’s request to perform a field sobriety test and was thereupon arrested.  Mr. Atkinson refused field sobriety tests at the emergency room and was taken back to the station.

Mr. Atkinson was convicted by the trial court upon these facts and was sentenced to 15 days of live time in jail and was fined.  His attorney filed an appeal to the Court of Special Appeals; the Court of Appeals intercepted the case on its own certiorari motion.

The issue considered on appeal was whether the evidence presented proved, to the sufficient standard of proof, that Mr. Atkinson was in “actual physical control of the vehicle” under § 11-114 of the Md. Ann. Code, Transportation article, which definition § 21-902 of that article incorporated in its definition of “drive” for “driving while intoxicated.” Insufficient evidence, per the Court, appeared in the record to the effect that Mr. Atkinson committed actions fairly described by the circular term “drive” or the terms “operate” or “move” included within the statutory definition of “drive” under § 11-114; only the fourth definition of “drive,” being in “actual physical control of the vehicle,” might apply.

The Court discussed prior precedent that had not specifically addressed the issue of what behavior might constitute being in “actual physical control,” due to a charging defect in that prior case’s charging document, and another precedent where circumstantial evidence allowed a finding that the drunk motorist’s vehicle – with the engine off but hot, the lights on and the gear shift in drive – had in fact been operated very recently while the motorist was still drunk.  Accordingly, the court found that that case was no guidance to the question of when a motorist was in “actual physical control” of a vehicle, since that four definition was not needed for the conviction of that motorist.

The Court discussed how a number of other states defined similar language in their drunk driving statutes, noting diverse definitions.  Some seem to be motivated by a policy of deterrence and defined the term very broadly.  The Court rejected this approach, finding that to convict those who merely sat in the driver’s seat in possession of ignition keys would effectively create a new crime that the General Assembly of Maryland did not create.  From the decision, “We do not believe the legislature meant to forbid those intoxicated individuals who emerge from a tavern at closing time on a cold winter night from merely entering their vehicles to seek shelter while they sleep off the effects of alcohol.”

The Court rejected the approach of Arizona’s highest court, which allowed for motorists who were already intoxicated to pull over and sleep off a drunk without fear of reprisal, noting that that approach might encourage drunk drivers to test their skills first before deciding to pull over.  The Court noted that a number of factors may influence whether a motorist is considered in “actual physical control,” including:

1) whether or not the vehicle’s engine is running, or the ignition on;

2) where and in what position the person is found in the vehicle;

3) whether the person is awake or asleep;

4) where the vehicle’s ignition key is located;

5) whether the vehicle’s headlights are on;

6) whether the vehicle is located in the roadway or is legally parked.

The Court concluded that there was not evidence beyond a reasonable doubt that Mr. Atkinson was in actual physical control of his vehicle, and on that basis reversed the conviction. The Court warned, however, that its decision was not an invitation to motorists under the influence to test their luck on the roads and sleep off a night of drinking, and that evidence that the vehicle already had been operated, moved or driven while the motorist was already intoxicated could still lead to a conviction.

In my view, this decision is a fair reading of the statute involved and the balancing test is wise. Nonetheless, I think that there should be a public policy in favor of mitigating the DWI penalty when motorists who conclude that they actually had one too many pull off the road and shut the vehicle down, and it’s better to pull oversooner than to try to make it to the next exit, find a motel or all-night diner and exit the vehicle once the motorist has reached that unfortunate conclusion. If the motorist is tipsy, do we want her off the road here and now, or later three miles down the road at the Motel 6? I’d favor allowing such drivers to face a fine only, or a nominal jail sentence of 1-2 days, not because drunk driving is mild but because stopping drunk driving is important. I suspect that a decent number of drivers conclude only after they start driving that between their BAC and their fatigue, they should be off the road; they should be encouraged to pull over soonest with mitigated criminal exposure.

Atkinson indicated that the latter point is something for a legislature to consider, not an appellate court, though a trial court may and must consider the overall conduct of a motorist when it imposes any sentence and attempting to mitigate the effects of a bad choice certainly merits a mitigated sentence.

Important Maryland Cases: State v. Hicks, 285 Md. 310 (1979)

This post is one of a series addressing major cases in Maryland’s appellate courts that, in the author’s view, every Maryland practitioner of law should now.

Few criminal cases in Maryland have had the practical impact for prosecutors and for defense counsel that State v. Hicks, 285 Md. 310 (1979) has had since that decision over 30 years ago.  Every criminal defense attorney and every prosecutor should know its holding by heart, even those that don’t practice primarily in Circuit Court, the primary forum affected by the holding of Hicks affirming the State’s administrative duty to bring a defendant to trial with the mandated timeframe and a severe remedy for violations of that requirement.

Harley Hicks was in 1978 serving jail time in Delaware and was brought to Wicomico County for trial on charges and was found guilty on those charges, and was sentenced to time to run consecutive to his Delaware sentence.  While awaiting return to Delaware, the State filed yet additional charged against Hicks through an eight-count indictment.  Shortly after the filing, Hicks was returned to Delaware to serve out the rest of his Delaware term; the Public Defender entered his appearance on April 24, 1978 for Hicks and the clerk set a trial date for August 8, 1978after the P.D.’s entry of appearance.

At the trial date, the State requested a postponement on the grounds that the Defendant was in Delaware, not Maryland, and that the trial could not proceed.  The Circuit Court granted that postponement.  On August 25, 1978, the Public Defender moved to dismiss the indictment on the grounds that the 120-day rule set by statute and court rule was mandatory and only “extraordinary” cause per the rule could justify a postponement, which cause was allegedly not present.  The Circuit Court agreed and dismissed the indictment.

The Court of Appeals noted that it had previously viewed the statute setting the 120-day trial date as merely “directory,” i.e. not mandatory, since the General Assembly had not mandated the dismissal of charging documents violating the 120-day rule by explicit language.  The Court noted that it had passed court rule 746 establishing the same timeline as the General Assembly had set, but that the court’s rule was in fact mandatory and was justified under the court’s state constitutional authority to govern the administration of justice.

The Court found, however, that the trial court erred insofar as it concluded that the State had failed to show extraordinary cause; the absence of the Defendant rose to that level of cause and the State’s failure to extradite or otherwise bring the Defendant into court did not weaken that extraordinary cause.  The Court noted that the court rule is not implicated by Sixth Amendment constitutional jurisprudence:

The time limits prescribed by Rule 746 are not, however, the measure of the Sixth Amendment right to a speedy trial. While the rule was adopted to facilitate the prompt disposition of criminal cases, it stands on a different legal footing than the Sixth Amendment’s constitutional right to a speedy trial.

The Court reversed the prior decision and remanded the matter to the trial court to reinstate the indictment.

A strong dissent by Judge Davison, joined by two of the other six judges of the Court of Appeals, urged that the State had not shown extraordinary cause insofar as the State did have the power to compel the presence of the Defendant and elected or failed to do so, and that to view the 120-day statute as having less force than the Sixth Amendment in fact undercut the speedy trial rights of all persons including Hicks.

On a motion for reconsideration by the State a month later, the Court further stated that, due to prior ambiguities in the interpretation of the applicable rules, the holding in Hicks was to be applied only prospectively to cases with defendants making a first appearance in court or their attorneys entering an appearance after the date of the supplemental opinion.  The Court also stated that dismissal of a charging document for a failure to try the case timely would not be appropriate in cases where the Defendant had assented to a later trial date, or in cases where the trial date was within 120 days but the Clerk had merely taken longer than 30 days to set the date, also required by the applicable rule.

What do we as practitioners take away from Hicks?  Hicks is not a Sixth Amendment speedy trial right case but a court administration case applying mandatory rules authorized under the power of the courts under Maryland’s Constitution to administer their own affairs.  The mandatory trial date, almost always referenced as the “Hicks date”, is now 180 days after the earlier of the defendant’s appearance or the entry of appearance of counsel under Md. Rule 4-271.  But Hicks remains a critical case.

I remain skeptical of the Court’s reasoning.  On the one hand, the Court seems to describe its own Rule as the fulfillment of legislative intent.  On the other hand, the Court seems to be imposing severe results – dismissal – for violations of its own rule when the statute did not require such a drastic result for a failure to show “extraordinary cause.”  Does this case constitute judicial obedience to statute or an aggressive judicial branch power grab in excess of what the Constitution and applicable statute required?  Either way, neither the General Assembly nor the Court of Appeals has seen fit to recalibrate any separation of powers questions in this case; Hicks remains very good law in Maryland.

Your blogger is a total Homicide: Life on the Streets fan.  (Note: the FTC requires me to disclose the attached link to the left is an affiliate link to Amazon, which occasionally pays this blog a commission for sales of goods.)  In one of the final episodes of the series, Detective Tim Bayliss learns to his horror that a sexual predator got released from custody and his charges dismissed due to the failure of the State to get its necessary witnesses and the Defendant into court within the Hicks date.  Bayliss later executes the predator on the streets of Baltimore, and confesses to that killing to his former partner Frank Pembleton in a Homicide movie special after the end of the series.

On a lighter note, I recall hearing about (though not confirming) the ire of a West Virginia resident who objected that he deserved better from the State of Maryland than to be subjected in its official correspondence to the abusive reference of the “Hick’s date.”  I don’t know whether this is a true story but dear Heaven it deserves to be true.