E-Newsletter, March 2005

ARTICLES IN THIS ISSUE:

 

GRUMPY NEIGHBOR CASES IN THE DISTRICT OF COLUMBIA, MARYLAND, AND VIRGINIA

By:  James P. Steele, Esq. and Aaron W. Knights, Esq.

I. INTRODUCTION

There are few things homeowners value more than their property. Homeowners invest time, effort and money into buying and maintaining their homes. They raise their families and entertain their guests in those homes, and rely on those homes to be havens from the hectic outside world. Naturally, threats to property, real or perceived, cause homeowners to become highly emotional. Who wants to work hard and save money for years to own property, only to see its value or beauty threatened by a neighbor’s surface water run-off?

On the other hand, commercial developers invest money and time buying and developing economically viable locations. These developments are intended to be an asset for the community. They provide the community with a tax base for schools, hundreds of jobs and a variety of goods and services. Commercial developers are subject to county, state and Federal regulations regarding, among other things, how they discharge their surface water run off. Occasionally, a commercial development’s surface water run-off travels onto downhill residential properties, creating disputes between residential and commercial neighbors that are often referred to as “grumpy neighbor” cases.

Consider this hypothetical. A couple buys 10 acres of wooded property for their dream house. At the time of the purchase, they are aware that the property abuts commercially zoned property. A decade after the purchase, development begins on a shopping center in the commercially zoned property. The development includes a stormwater management pond that will collect surface water off the parking lot in a stormwater management pond. The pond then discharges water through a single outfall pipe onto riprap and down a hill onto a portion of the couple’s property. The outfall pipe is located at a point of the pond to discharge into a pre-existing natural drainage way.

The couple now feels their bucolic paradise is spoiled. More importantly, they do not want “polluted stormwater” gushing down the hill onto their property. They bring a nuisance and trespass suit against the owner/developer. They seek money damages and an injunction, preferably requiring the pond to be dismantled and rebuilt to discharge the water somewhere else. If that causes the development to cease being economically viable, so be it.

But has the uphill landowner done anything wrong? If you are in the greater Washington, D.C. metropolitan area, the answer may depend on which jurisdiction you are in.

II. SURFACE WATER DISCHARGE LAW IN DC, MD & VA

A. The District of Columbia

The District of Columbia follows the so-called “common law,” or “Massachusetts rule,” regarding surface water discharge. Ballard v. Ace Wrecking Co., 289 A.2d 888, 889-90 (D.C. 1972). This rule states that surface water is a common enemy that may be repelled or deflected onto the land of other proprietors, provided that such deflection is the result of the ordinary use of land and is not accomplished by means of channels, ditches or other extraordinary construction. Id. See also, United States v. Shapiro, Inc., 202 F.2d 459, 460 (D.C. Cir. 1953). The District of Columbia Court of Appeals, following the lead of courts in other “common law” jurisdictions, has qualified the rule to account for “reasonable” use of the uphill property. See Ballard, 289 A.2d at 890. Under the modified “common enemy” doctrine, an uphill landowner may improve or protect his property in a manner that fights off surface water, subject to the qualification that he must exercise his rights not wantonly, unnecessarily or carelessly, but in good faith and with such care as not to injure needlessly the adjacent owner’s property. See Id.

B. Maryland

Maryland follows the “civil law” rule regarding surface waters, which states that an upper landowner has the right to have surface waters flow naturally over the lands of lower landowners. See Sainato et ux. v. Potter et ux., 222 Md. 263, 159 A.2d 632 (1960) (citations omitted). In Whitman v. Forney, 181 Md. 652, 659-60 (1943), the Maryland Court of Appeals adopted and applied the “reasonableness of use” rule, which balances the upper landowner’s right to improve and develop its property against the potential harm to the lower landowner. See Whitman, supra. See also Battisto et al. v. Perkins et al., 210 Md. 542, 546, 124 A.2d 288, 290 (1956). Under this rule, the upper landowner has a duty to use reasonable precautions to protect the lower landowner from harm. See Battisto, Sainato, supra. See also Kennedy-Chamberlin Development Co., et al. v. Snure, et al. 212 Md. 369, 376-77, 129 A.2d 142, 146-47 (1957). “What would be reasonable is ordinarily a question for the jury.” Battisto, supra, 210 Md. at 546 (emphasis added); See also, Whitman, 181 Md. at 659-60.

C. Virginia

Virginia follows the modified common law rule regarding surface water drainage, which states that surface water is a common enemy that each landowner may fend off, provided he does so reasonably and in good faith and not wantonly, unnecessarily or carelessly. McCauley v. Phillips, 216 Va. 450, 452, 219 S.E.2d 854 (1975). A landowner may, in the reasonable development of his property, grade it or construct a building on it without becoming liable for the discharge of additional diffused surface water resulting from such improvements. Id. (Citations omitted). Virginia has an exception to the modified common law rule, under which a landowner may not collect surface water into an artificial channel and discharge it in concentrated form upon the land of another to his injury. Id. (Citations omitted). Under another exception, a landowner may not injure another by interfering with the flow of surface water in a natural channel or watercourse that has been worn or cut into the soil. Mullins v. Greer, 226 Va. 587, 589, 311 S.E.2d 110 (1984).

III. DISCUSSION ISSUES

The law relating to surface water run-off in each of these three jurisdictions recognizes an uphill landowners’ right to develop its property. Maryland imposes upon the uphill owner the duty to use “reasonable precautions” to protect downhill properties from harm. The District of Columbia and Virginia also require uphill owners to fend water off “reasonably,” and not “wantonly, unnecessarily or carelessly.” Each of these jurisdictions appears to preclude the redirection and channeling of water through artificial means. Does this prohibition necessarily preclude the use of stormwater management ponds?

The law permits uphill development, but prohibits or sharply curtails “redirection.” Yet development usually involves grading land, and grading necessarily results in at least some amount of redirection. Additionally, paving graded property creates an impervious surface that will necessarily increase the volume of surface water run-off. Commercial developers and owners manage this increase in redirected surface water run-off through the use of stormwater management ponds.

While at first glance, a stormwater management pond seems quintessentially “artificial,” such ponds include many features that are arguably “reasonable precautions,” to protect downhill landowners from harm. For example, the ponds are usually designed so that the outfall pipe through which the water is discharged takes advantage of natural drainage ways near the commercial development. The ponds are designed so that the discharged water’s rate of flow is no greater post-development than it was prior to development. This requirement is mandated by many state and local codes.

Is a pond’s use of a single outfall pipe “channeling” of the surface water? Usually, the pipe is but one element of the discharge. Ponds use riprap, level spreaders or other means to dissipate water once it leaves the outfall pipe. And, again, the pond discharges water into a natural drainage way. Thus, a stormwater arguably places water into natural water courses where water traveled before development, and at a rate of flow that is the same or less than prior to the development.

When these grumpy neighbor cases make it to trial, the jury is typically asked to decide whether the discharged surface water constitutes a nuisance or trespass. Such findings may lead to injunctive relief to abate the nuisance. Thus, an uphill landowner must be able to demonstrate to a jury that its system for dealing with surface water run-off is reasonable. The uphill owner can point to the pond’s features, as discussed above, as well as county and state permits and approvals as compelling evidence that the stormwater management pond reasonably protects downhill properties from harm. Downhill property owners will point to changes in drainage characteristics post-development and how the drainage has affected their property to argue that they have been harmed. Ultimately, it is up to a jury to determine whether the uphill owner is reasonable in how it manages its surface water run-off or whether the downhill neighbors actually have something to be grumpy about.

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VIRGINIA RULE AFFIRMED INVALIDATING AGREEMENT ENTERED INTO PRE-INJURY RELEASING A TORTFEASOR FROM LIABILITY FOR NEGLIGENCE RESULTING IN PERSONAL INJURY

By:  Mariana D. Bravo, Esq.

A Fairfax Circuit Court jury in Jackson v. Gold’s Holding Corp., At Law Number 217012, recently awarded damages to a gym member who was injured while using a Nautilus weight machine, despite a waiver of liability provision included in the plaintiff’s gym membership contract.

Citing a 1992 Supreme Court of Virginia case, Hiett v. Lake Barcroft Community Association, 244 Va. 191 (1992), Jackson’s attorney filed a Motion in Limine before trial was to begin, contending that the waiver provision in Plaintiff’s membership contract was void for being against public policy. The plaintiff in the Heitt case also executed a similar waiver form releasing a triathlon sponsor from all claims for damages potentially arising from the plaintiff’s involvement in the event. Id. While participating in the triathlon, the plaintiff sustained injuries rendering him a paraplegic, and thereafter sought damages. Id. Defendants in the case argued that Plaintiff was barred from recovery, contending that the waiver form releasing defendants from liability was enforceable.Id. The Court disagreed and held that the pre-injury waiver was void for being against public policy, allowing plaintiff to seek damages against the sponsor. Id.

Relying on the Heitt Court’s decision, the Judge in Jackson granted the Plaintiff’s Motion, and redacted the waiver provision contained in the gym contract, opening the door for Plaintiff to recover damages. In doing so, the long-standing Virginia rule voiding an agreement entered into prior to an injury releasing a tortfeasor from liability for negligence resulting in personal injury, which dates back more than one hundred years to the Virginia Supreme court’s holding in Johnson Adm’x v. R. & D.R.R. Co., 86 Va. 975, 11 S.E. 829 (1890), was again upheld. 1 As noted in the Johnson case, the Court reasoned that such waivers were against public policy because:

“To hold it was incompetent for one party to put the other

parties to the contract at mercy of its own misconduct…can

never be lawfully done where an enlightened system

of jurisprudence prevails.” Id.

Notwithstanding Virginia’s well-settled law, however, contracts including waiver of liability provisions continue to appear in Virginia contracts as revealed in the Jackson case. Regardless, a party seeking to release itself from claims of negligence prior to an injury occurring will be barred from doing so.

The doctrine of Assumption of Risk, however, continues to be a recognized defense in Virginia tort law and, if applicable, express assumption of risk provisions, whereby a contracting party voluntarily agrees, in advance, to explicitly assume an appreciated or known risk of danger or injury, may be included in contracts, potentially relieving a party from future liability. Such provisions are not considered invalid or against public policy, but may nevertheless serve to bar recovery for future acts.

1      Since Johnson, Virginia court’s have carved out specific exceptions to the rule including upholding release and waiver provisions related to future property damage claims, indemnification from liability to third parties and inherently dangerous activities. See Nido v. Ocean Owners’ Council, 237Va. 664, 378 S.E. 2d 837 (1989)(holding that a waiver to bring a potential future property damage claim was valid); Elswick v. Lonesome Pine Int’l Raceway, 54 Va. Cir. 368; 2001 Va. Cir. Lexis 186 (2001) (holding that releases from liability involving inherently dangerous activities such as car racing are valid and not against public policy).

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REDUCING NURSING HOME LIABILITY EXPOSURE FROM DAY ONE

By:  Edward J. Krill, Esq. and Michael J. Sepanik, Esq.

Nursing home litigation has experienced tremendous growth and evolution over the past decade, however many of the claims made against nursing homes may be preventable through better communication with a resident’s family. It is the family, not the resident, that most often initiates litigation, therefore a positive and open line of communication between a resident’s family and the nursing home staff is vital.

The first impression a nursing home makes on a resident’s family will often times dictate the family’s perspective on the nursing home’s level of care and attention throughout the stay of their loved one. Thus, the initial meetings with a resident’s family and the intake of a resident can have long-term ramifications for both the family and the nursing home staff.

Resident intake is critical in two regards. First, a new nursing home resident must receive a thorough medical examination that fully documents any potential health problems of the resident. Foremost, if a resident is being released from a hospital environment, they likely may show signs of a nascent decubitus ulcer, commonly referred to as a pressure sore. At its inception, a pressure sore often looks innocuous – a small patch of discolored skin – but it must be documented, because the affected area can develop into a cavernous stage four decubitus ulcer, exposing muscle or even bone. Without documentation that the sore began prior to the resident’s arrival, the only conclusion a concerned family member is left to draw is that something happened – or did not happen – after the resident arrived at the nursing home.

Second, during the resident’s initial intake, a nursing home representative should discuss with the family members their goals for their loved one, and the fact that most nursing home stays are not rehabilitative in nature. In addition, a frank discussion of common problems experienced by the aging should take place, such as loss of brain function, Alzheimer’s, loss of control over bowel functions, weight loss, and the likelihood that an immobile resident may develop pressure sores. The representative needs to make clear to the family that the nursing home resident will likely experience some of these age-related problems despite the best efforts, attention, and care of the nursing home staff. 1

Such an open discussion about the harsher aspects of aging may seem to run counter to traditional resident recruitment and enrollment, but it will help foster a greater respect and understanding by family members of the role of the nursing home staff and the challenges they face when caring for the aging. It may also serve to eliminate the initial shock- the type of shock that may lead to a call to an attorney- when a family member first sees a pressure sore, or their loved one partially nude or laying in fecal matter.

The nursing home’s representative should explain to family members that even the most attentive staffing procedures cannot equate to all residents being monitored at all times.2 For instance, the methods available to reduce the risk of falls should be discussed with the family. Unfortunately, in severely weakened residents, the only way to fully prevent the loss of balance and resulting falls is to confine the resident to a wheelchair and to provide assistance with any motile activity. A family that has been engaged in a discussion of the benefits of continued mobility versus the risk of falls can be expected to have a greater acceptance in the event of a fall.

Nursing home residents, especially those that are partially or fully immobile, are particularly vulnerable to pressure sores because they will likely experience several of the contributing factors. Although persistent pressure to the skin is the salient cause of a pressure sore, the following factors increase the risk of pressure sores: moisture- wetness from urine or feces caused by incontinence; decreased movement- persons who are unable to shift their weight; poor nutrition; circulatory problems- impaired blood flow makes the skin more susceptible to breakdown; decreased sensation- persons cannot recognize need to shift weight as they cannot feel the effects of prolonged pressure; and thinning skin resulting from advanced age. Thus, aging and immobile individuals are at a very high risk of developing pressure sores.

Although many family members may already have an understanding of these risks, it should not be assumed that every family member of an aging person has a working knowledge of pressure sores. Once again, better for the family members to first hear of the risks of pressure sores from a nursing home’s representative than from an attorney.

The facility’s policy regarding turning or rotating immobile residents should be made clear to the family, i.e. immobile residents are repositioned on a consistent and periodic basis. Finally, it is critical that the family is told that even with turning and rotating every 2 hours (or more frequently), pressure sores may still develop, even with the most attentive and highly-trained staff. The facility’s policy regarding “least restrictive environment” and the reluctance to use restraints should also be discussed in appropriate cases, so that the family is involved in any decisions regarding restraints.

Finally, the role of Ombudsperson should be discussed with the family, and if possible, the family members should be asked to review a written description of the Ombudsperson and initial or sign that they understand that any questions, complaints or concerns regarding resident care should be directed to the Ombudsperson as soon as possible. A nursing home should also post a placard in clear view at or near the entrance of the facility welcoming any family members to refer any questions, complaints or concerns regarding resident care to the Ombudsperson.

Attorneys who have handled a substantial number of medical malpractice cases generally note that many lawsuits could have been avoided had the physician or caregiver communicated differently with family members, especially after a medical procedure with a poor outcome. Aggrieved family members often feel that a physician’s explanation is inadequate, or that the physician was too busy to answer their questions (even though they have lost a loved one), which is understandably considered unacceptable. The same is true of a nursing home in its role as caregiver- an open and positive communication channel between nursing home representatives and residents’ families could be the key to a permanent reduction in liability exposure.

1      A national standard of patient care in acute care nursing facilities is set by the Medicare Regulations, 42 C.F.R. § 483.10(b) (2)(i)(2002). Compliance normally includes a statement of “Resident’s Rights” which should be discussed, in some detail, at the initial meeting with the family.

2      The Medicare Regulations include a section styled “Resident behavior and facility practices,” which sets forth the conditions of participation for skilled nursing facilities, including the appropriate use of restraints, seclusion and other methods to control the activity of confused or belligerent patients. See 42 C.F.R. § 483.13. Certain states enacted regulatory requirements that are more detailed. See, e.g., Health General, Annotated Code of Maryland §19-343 et seq. (resident’s rights).

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MARYLAND COURT OF APPEALS’ REVERSES $2.5 MILLION AWARD BASED ON IMPROPER REFERENCES TO RACE DURING TRIAL

By:  Michael J. Sepanik, Esq.

In a recent decision, Tierco Maryland, Inc. v. Linda Williams, et al.1 the Court of Appeals reversed an award of $1 million in compensatory damages and $1.5 million in punitive damages in a case brought by several patrons of a theme park alleging assault, battery, false imprisonment and negligent supervision.

The case stemmed from a fracas that ensued after theme park employees denied four-year-old Shaniqua Smith access to a log flume ride on the basis that she did not meet the ride’s forty-six inch minimum height requirement. Shaniqua Smith’s family members and associates, whom are African American, took issue with the theme park’s policy, and refused to leave the ride unless Shaniqua was permitted to accompany them. Certain of the members of the group alleged that prior to boarding the ride, they had seen “white children” who were smaller than Shaniqua permitted on the ride. 2

A standoff ensued, which soon turned violent, with allegations of punches thrown by one of the plaintiffs and excessive force used by security personnel to subdue the scene and handcuff several of the plaintiffs, who were then forced to walk approximately one thousand feet to the park security office.3 The plaintiffs then sat in the security office for an hour, during which time, theme park personnel issued them “trespass letters,” informing them they were no longer welcome on park property. 4 Upon arrival of the Prince George’s County Police Department, the plaintiffs’ handcuffs were removed and they were escorted to the park gate and released. 5

Upon release, the plaintiffs drove to a local hospital where examination by physicians revealed only superficial cuts and bruises, as well as handcuff-induced swollen wrists, but no fractured bones or permanent injuries. 6 Aside from the injuries described above, plaintiffs’ suit sought recovery for embarrassment, public humiliation and upset feelings. 7

The jury verdict of $1,000,000 was awarded in the following fashion: $250,000 in compensatory damages to Charles Smith, $250,000 to Shaniqua Smith, $200,000 to Katrina Smith, $200,000 to Linda Williams, and $100,000 to Frances Williams. The jury also assessed $1.5 million in punitive damages against the theme park. The punitive damage award was vacated by the trial judge on the basis that the evidence offered at trial did not support a finding of malice, however the Court of Special Appeals reinstated the punitive damage award and affirmed the compensatory damage award.

The Maryland Court of Appeals reversed the judgment and remanded the action to the Circuit Court for Prince George’s County for a new trial. The Court of Appeals found that although the Complaint contained no allegations of racial discrimination, and that- prior to trial- plaintiffs’ never posited any theory of recovery on any real or perceived racial animus, race became a major focus of the trial.8 The Court of Appeals took special note that the issue of race, or a particular race, was mentioned sixty-three times during the three day trial. 9 In addition to several witnesses testifying regarding issues of race, counsel for plaintiff injected race as an issue in his opening argument by stating: “[T]hey had questioned the fact that Shaniqua was one of the only children singled out, and they had seen younger, smaller, whiter children get on the boat. Smaller, whiter children get on the boat, and had not been stopped.” 10

The Court of Appeals reversed the judgment due to the improper focus on the issue of race where race was not relevant to prove any element of the theories of recovery pled by the plaintiffs.11The Court of Appeals held that the gratuitous and repeated references to race, and the strong reactions of the jury to the race-tinged testimony, caused such prejudice to the owners of the theme park that they were denied a fair trial. 12 The Court of Appeals also noted that the excessive verdict in light of the de minimus injuries led to the conclusion that the verdict was the product of the jury’s inflamed prejudice and passion.

1      381 Md. 378, 849 A.2d 504 (2004).

2      Id. at 382.

3      Id. at 383.

4      Id. at 383.

5      Id. at 383.

6      Id. at 384.

7      One of the plaintiffs, a nurse, also claimed two days worth of lost wages.

8      Id. at 384.

9      Id. at 384.

10      Id. at 404.

11      Id. at 401.

12      Id. at 414.