Foreseeability in Maryland Tort Cases


Foreseeability is often a key issue for a plaintiff’s Maryland personal injury lawyer in making a case for liability in a vehicle accident or medical malpractice case.

Under Maryland law, if a defendant could not reasonably have foreseen that someone might be hurt by his or her actions, then there is no liability in negligence (as opposed to strict liability). If the defendant’s negligence caused injury, he is liable for plaintiff’s injuries if “general field of danger” was foreseeable, not necessarily the particular kind of harm to which the injured party would be subjected as a result of the defendant’s negligence.

In other words, in the automobile accident context, the exact type of physical injury does not have to be foreseeable but the fact that a physical injury could occur from the defendant’s conduct would be the more appropriate question.

The Restatement (Second) of Torts § 435. Foreseeability of Harm or Manner of Its Occurrence, which has been adopted by the Maryland Court of Appeals, defines foreseeability:

(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.

(2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

Both plaintiffs’ accident and medical malpractice lawyers and defense lawyers stretch the arguments as to what is foreseeable. Defense lawyers argue that Maryland personal injury lawyers engage in hindsight bias when we argue the defendants knew it all along. When we were defense lawyers, we often analogized this to “having the answer to the math problem in the back of the book.” In other words, these lawyers contend that this bias occurs when knowledge of what happened causes overestimation of how certain the outcome was. On some level, this is certainly true.

Maryland plaintiffs’ attorneys, of course, attempt to minimize the arguably unforeseeable details.  We focus on the general principle that, whether the question of foreseeability is treated as a problem of duty or proximate cause, it was not necessary that the defendant might or should have expected the likelihood of the particular injury or harm, or the way in which the harm occurred.

Instead, we argue that it was only necessary that defendant should have reasonably anticipated that some injury might result from his conduct.  Which really makes more sense, right?  You don’t need to predict the EXACT injury, just the general class of risk.  When in doubt, courts should remember the consequences of all negligence are, on some level, foreseeable. Accordingly, it makes more sense that the wrongdoer should bear the liability instead of the innocent victim.

Summary of Hartford Ins. Co. v. Manor Inn

This was a personal injury auto accident case in Sykesville, Carroll County, Maryland. In this case, a mental patient in the state’s custody escaped, stole a vehicle, and negligently crashed into the Plaintiff, who hired a Maryland personal injury lawyer to bring a lawsuit against the state. The state conceded that a special relationship existed between it and the patient while he was in its custody and that the state had a duty to prevent the patient from harming others. But the Maryland Court of Appeals found that the foreseeable consequences of the patient’s mental problems did not involve stealing and crashing automobiles.

Because the patient stole a state truck where the keys had been left in the vehicle, the Plaintiff’s Maryland accident lawyer also argued that the negligence of state was a proximate foreseeable cause of Plaintiff’s injuries in the car accident. The court agreed that leaving the keys in the car was negligent and that it was foreseeable that the car would be stolen. But the court disagreed with the Plaintiff’s lawyer’s assertion that a car accident was a foreseeable consequence of this negligence. Accordingly, the court affirmed the trial judge’s ruling in favor of the defendant.

Take Home Message for Maryland Personal Injury Lawyers and the Accident Victims

Our attorneys recently had a similar type of auto accident with State Farm. A group of friends left a meeting.  One gentleman got his car, drove in front of the building where the meeting occurred, and ran into the building to get a soft drink. His friend, playing a practical joke, jumped into the car to hide it from his friend so that he would think it was stolen. Of course, he did it quickly and ran over our client who suffered a herniated disc in her neck. Like the personal injury lawyer in that case, we brought a claim against both the driver and the man who left his keys in the car. Although foreseeability was arguable, after we filed suit, State Farm settled the case anyway for the policy limits.

Maryland lawyers must be on the lookout for defense lawyers who are manufacturing a “scope of liability” problem where one does not exist by claiming that the type of injury was not foreseeable. Citing the principles articulated by the court would defeat such an effort in Maryland.

If a case is a true “scope of liability” problem, however, a plaintiff’s injury lawyer must show that plaintiff was a member of a class of persons entitled to protection from the defendant’s negligent conduct.

Stating the problem in terms of the elements of negligence, a plaintiff’s auto accident or medical malpractice lawyer, assuming an absence of affirmative defenses such as assumption of the risk or contributory negligence, must effectively argue that (1) there was a duty not to cause the alleged negligent action, (2) breach of the duty, (3) a causal relationship between the negligent driver’s conduct and the injuries suffered in the vehicle accident, and actual injury.

  • In Funk v. Taubman Co., Ltd., 102 F. Supp.2d 308 (D.Md. 2000), there was an altercation between teenagers at Marley Station Mall in Anne Arundel County. Three teenagers were accosted while shopping after ongoing harassment.  Judge Harvey Alexander, II applied Maryland’s foreseeability test to determine whether to grant the mall owners’ summary judgment.  Judge Harvey rule that there is a jury question on foreseeability, relying on the allegations that the mall owner knew that this was no exceptional behavior on a weekend at that mall.  The lesson from this case is that foreseeability is usually a question of fact.
  • In Smith v. Dodge Plaza Ltd. Partnership, 148 Md. App. 335 (2002), the victim was stabbed at a nightclub by another customer in the parking lot. Judge Lawrence F. Rodowsky applied the foreseeability test for the Maryland Court of Special Appeals.  Judge Rodowsky a
    cknowledged there were a ton of incidents at this nightclub. But he found that the prior incidents did not involve a weapon so the harm to the victim was not foreseeable. (If you disagree with this opinion, you join us.)
  • Underwood-Gary v. Mathews, 366 Md. 660 (2001) (is malpractice foreseeable after a car crash case?– short answer?  YES)
  • Kiriakos v. Phillips: It is foreseeable that if you give alcohol to a minor, there is a good chance that minor is going to hurt or kill someone behind the wheel of a car
  • Maryland Law Update (more Maryland injury cases of significance)
  • Appellate Court Decision on Special Medical Malpractice Jury Interrogatory
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