by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Rachel Stewart Edited by Brian Cafritz When dealing with a restaurant or retailer’s obligations to protect invitees from fights or other violent acts, the phrase “danger zone” is more than a catchy phrase from the “Top Gun” soundtrack. New rulings have broadened the “danger zone” or “zone of imminent harm” that a business must recognize to avoid potential liability from criminal conduct. Under Maryland law, restaurants and retailers may be liable for a patron’s personal injuries caused by the criminal acts of a third party when the business is deemed to possess certain knowledge and a presumed ability to foresee the harm to their patrons. There are three recognized theories of negligence in which the courts will impose a duty on restaurants and retailers to protect customers from criminal activities: When the property owner has knowledge of prior similar incidents and has failed to eliminate conditions that contributed to the criminal activity, such as providing security personnel, lighting, locks and similar instrumentalities; When the property owner has knowledge of prior conduct of the criminal actor thereby making the criminal activity foreseeable; or When property owner has knowledge of events occurring on the premises prior to and leading up to the criminal action, which make imminent harm foreseeable. Recent rulings have looked at the third theory – whether or not imminent harm is foreseeable. The majority of Maryland’s case law dealing with the foreseeability of imminent harm test focuses on the property owner’s knowledge of events then occurring on their premises. The takeaway from these cases is that if a restaurant or retailer has reason to foresee imminent...
by kpmAdmin | Apr 28, 2015 | KPMBlog, News, Uncategorized
When a worker is injured and there is a question as to whether the employee is an independent contractor or an employee of the direct employer or general contractor, several factors need to be considered to determine whether an employer/employee relationship exists. If the facts of the case demonstrate that the worker is an independent contractor, the general contractor may not be held liable for the worker’s injury. The court has recently addressed the factors that are considered to determine whether an employer/employee relationship exists and has noted that the key consideration is the level of control the employer has over the employee. Maryland Labor and Employment § 9-202 provides that “An individual, including a minor, is presumed to be a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.” “To overcome the presumption of covered employment, an employer shall establish that the individual performing services is an independent contractor in accordance with the common law or is specifically exempted from covered employment under this subtitle.” Maryland case law has addressed the factors which establish an employer/employee relationship under the traditional common law test. A worker will be deemed a “covered employee” unless it is established that he or she is an “independent contractor” under the common law rules. The courts have considered the following factors to determine the existence of an employer/employee relationship (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of...
