What is Contributory Negligence?

Posted on by Horman Nichols, LLC

Written By: Andrew Nichols

            You’re almost late for a meeting downtown and after grabbing a cup of coffee, you step between two parked cars and look both ways.  Not seeing any oncoming traffic, you dart across the street, only to be hit by a driver you didn’t see.  A driver who was on her cell phone, sending text messages and driving 20 MPH over the posted speed limit.  After you get out of the hospital, you limp into an attorney’s office, ready to sue the pants off the at-fault driver.  You’ve got thousands of dollars in medical bills, you’re currently unable to work and your doctor told you it’s possible you’re going to have a limp for the rest of your life.  After explaining the facts of your accident, you’re shocked when the attorney tells you there is nothing he can do for you.  Under Maryland law, the attorney says your claim is likely barred by contributory negligence.  

            What is contributory negligence?  It’s a legal standard that can completely prevent an injured party from recovering any monetary damages if they contributed to their own injuries in any way.  Contributory negligence is not followed in the majority of jurisdictions.  In fact, only Alabama, Maryland, Washington D.C., Virginia and North Carolina allow the defense of contributory negligence.  

            Contributory negligence is not an automatic defense or bar.  This means a judge or jury has to find as a factual determination that you were contributorily negligent.  However, it is a defense that is often used aggressively by at-fault drivers and their insurance companies, and for good reason.  I was involved in an appeal where a jury found contributory negligence on the part of an injured pedestrian who, at the time of trial, had been in a coma for 5 years after being struck by a driver who was rushing to make it through a yellow light at an intersection.  The injured plaintiff by all accounts was a great guy.  He had worked for a religious non-profit for 2 years and had 2 young children.  After deliberation, the jury found he had stepped off the sidewalk when he did not have the right-of-way and was contributorily negligent.  A man who would likely never awake from his coma and leave a widow and two young children behind was completely barred from recovering monetary damages.  

            Contributory negligence has a “sibling” that can also completely prevent you from recovering for injuries you sustain as a result of someone else’s negligence – assumption of the risk.  A plaintiff is said to “assume the risk” of injury if he or she voluntarily enters a dangerous situation fully aware of the risk involved.

            What is the practical application of these legal defenses for you?  When you’re getting ready to do something potentially stupid or reckless and you hear that voice in your head that says, “Hey, maybe this isn’t a good idea” – listen to that voice.  Always use reasonable caution and care, and always use a crosswalk.  

            If you have any further questions or would like to consult with Horman Nichols, please call 30.663.8101.

Why You Need an Adoption Attorney

Posted on by Horman Nichols, LLC

Written By: Trevor Addie-Carter

A fairly common question that family lawyers get asked is whether prospective adoptive parents need to hire an attorney in connection with their decision to adopt a child.  Maryland adoption law itself is a very specific field with its own specific sets of statutes and procedural rules that govern the court process.  Here are a few reasons why prospective adoptive parents need to work with an attorney:

  • There are different types of adoption in Maryland – Maryland law establishes three types of adoption in Maryland:  Public Agency Adoption, Private Agency Adoption, and Independent Adoption.  Each of these case types have their own sets of statutes that apply specifically to that type of adoption.

Public Agency Adoptions are adoptions through which the prospective adoptive parents are seeking to adopt a child who is in the care of a county Department of Social Services (also known as a Department of Health and Human Services in some counties). The public agency adoption statutes are Maryland Code, Family Law Article §§ 5-301 to 5-362.

Private Agency Adoptions are adoptions through which the prospective adoptive parents seek to adopt a child through a licensed child placement agency (such as Adoptions Together).  The private agency adoption statutes are Maryland Code, Family Law Article §§ 5-3A-01 to 5-3A-45.

Independent Adoptions are adoptions where no agencies are involved.  The most common type of independent adoptions are stepparent adoptions and intra-family adoptions (for example, where a grandparent adopts a grandchild from the natural parents).  As there are no agencies involved in an independent adoption, it is these adoptions for which the need for an attorney to guide the prospective adoptive parents is the greatest.  The independent adoption statutes are Maryland Code, Family Law Article §§ 5-3B-01 to 5-3B-32.

In addition, depending on circumstances, the Interstate Compact on the Placement of Children and other Interstate Compacts may apply.

  • There are specific procedural rules governing how natural (biological) parents are notified – Under Maryland law, both natural (biological) parents—the child’s mother and father—must be notified of the adoption proceedings and be given the opportunity to consent or object to the adoption.  This is true even if the prospective adoptive parents do not know where the natural parent lives.  This notice can be given by serving legal papers or through publication in the newspaper and on a Maryland Department of Human Services website.

There are specific rules that apply to each situation and each specific document that needs to be served (for example, a Consent form versus a Show Cause Order).  If these rules are not properly followed, it is possible that a parent may not receive the necessary notice, which can place the adoption proceedings in question.

  • The rules change if a natural parent objects – When both natural parents and the person to be adopted all give their consent, the Court must find that the proposed adoption is in the best interests of the child in order to grant the adoption.  If one or both of the natural parents object to the adoption, then the prospective adoptive parents must prove by clear and convincing evidence that very specific statutory requirements apply in order to terminate the objecting parent’s parental rights.

This is done through a Contested Adoption Hearing, which is a trial held for the purposes of determining whether the court can legally grant the adoption over the natural parent’s objection and, if so, whether the adoption is in the child’s best interests.  If the prospective adoptive parents cannot prove that the Court can legally grant the adoption over parental objection, then the Court cannot grant the adoption. 

Even if the natural parents both consent, there is a window of time for them to revoke their consent before it becomes finalized.  Further, the Court cannot grant an adoption if the person to be adopted objects.

If you have questions about adoption or are thinking of adopting, it is important you speak with an adoption attorney who can help explain the process to you.  For more information, call us at 301-663-8101.

Dog Bite Cases in Maryland

Posted on by Horman Nichols, LLC

We all love dogs. Well, most of us. Occasionally, dogs can be aggressive and that aggression can turn into a bite. When looking at Duncan the thought seems impossible, but it does happen. Here are the important facts you need to know if you are involved in an incident where a dog has been aggressive.

  1. In Maryland, dog bite cases are fact specific.
  2. Maryland also has a rebuttable presumption that the owner of the dog should know their dog’s disposition.
  3. Has the dog bitten someone in the past? An owner should know about previous bites, however, in the state of Maryland there does not need to be evidence of a previous bite to prove aggression.
  4. Did the individual who was bitten provoke the dog in any way? Dog can bite as a result of being scared or startled.
  5. What is the status of the individual on the property? Is this someone who was invited or are they trespassing?

Is It Down to the Wire?

Posted on by Horman Nichols, LLC

You’ve doubtless seen articles and social media posts about the release of the new iPhone 7.  One of the most talked about features is the lack of a headphone jack and the new AirPods (wireless earbuds).   Companies are trying to keep up with the demand for the newest and best technology and most consumers prefer wireless.

Convenience and technological advancements aside.  An often overlooked law is the fact that in Maryland it is illegal to drive with earphones in both ears or headphones covering both ears.  The Maryland Transportation Article Section 21-1120  says you “may not drive a motor vehicle on any highway…in this State” while wearing over or in both ears a headset or earphones attached to a radio, tape player, or other audio device.

Some may want to argue what the term “attached” means.  Does there have to be a physical attachment by the use of wired headsets or earphones?  Is it okay if you use wireless earphones or headsets and have both ears covered?

The answer is “no.”  The use of bluetooth or wireless headphones or earbuds in both ears is a violation of Maryland law and punishable by a fine of $45.00 and 1 point on your license.

The rationale behind this law is that having both ears covered prevents you from giving full focus and attention to driving.  Some experts have even referred to it as a form of sensory deprivation while operating a motor vehicle.  In 2015, Maryland had 520 traffic fatalities.  This was nearly a 20% increase from 2014 and ended a downward trend in traffic fatalities in Maryland from 2007-2014  (30% decrease from 2007-14).  Nationwide, there were 38,300 traffic fatalities in 2015.  This represented an 8% increase from 2014.

Understandably, police are continuing to crack down on distracted driving and the lack of a wire from your headset or earphones to your phone won’t save you from a ticket, a point on your license and a possible court appearance.  There is no need to make the road anymore of a dangerous place than it is already.  The next life you save by reducing your distractions while driving could be your own.

Maryland Judge Sentenced to Probation

Posted on by Horman Nichols, LLC

If you’ve ever appeared in front of a judge, especially if you’re not an attorney, it can be a little intimidating. However, one Maryland judge took things a bit too far.

Judge Robert C. Nalley, a former Charles County Circuit Court judge, pleaded guilty in February of 2016 to charges that he violated the civil rights of a criminal defendant when he ordered a deputy sheriff to physically shock the defendant, who was wearing a “stun-cuff” at the time.

On July 23, 2014, Nalley was presiding over the jury selection of Delvon King who was representing himself on gun charges.  Nalley asked King whether he had any questions for the potential jurors and rather than ask a question, King began reading from a written statement, during which time he questioned the Court’s jurisdiction over him.  King purported to hold a belief that he was a sovereign citizen.

Self-proclaimed sovereign citizens often adopt the position that they are accountable only to their personal interpretation of the common law and are not subject to any statutes or proceedings at the state or federal levels.

King refused an order from Nalley to stop and it was at that time that Nalley ordered King to be shocked.  King was later found guilty on the criminal charges.

Nalley was sentenced today in federal court and was ordered to take anger management classes and was also given a $5,000.00 fine and a year of probation.