Statutes of Limitations (MARYLAND)

All Tort Claims - 3 yrs. [MD Code, Courts and Judicial Proceedings § 5-101]

Personal Injury - 3 yrs. [MD Code, Courts and Judicial Proceedings § 5-101]

Wrongful Death - 3 yrs. (from date of death) [MD Code, Courts and Judicial Proceedings § 3-904]

Property Damage - 3 yrs. [MD Code, Courts and Judicial Proceedings § 5-101]

Contracts (Written and Oral) - 3 yrs. [MD Code, Courts and Judicial Proceedings § 5-101]

Strict Product Liability - 3 yrs. [Phipps v. General Motors Corp., 363 A.2d 955 (Md. 1976)]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [MD Code, Commercial Law § 2-725]


Pursuant to “discovery rule,” a cause of action accrues when Plaintiff knew (or should have known) that actionable harm was done [Bragunier Masonry Contractors, Inc. v. The Catholic University of America, 796 A.2d 744 (Md. App. 2002)].




Statute of Repose (Products) (MARYLAND)




Admissibility of Expert Testimony (MARYLAND)

Before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. According to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence [Reed v. State, 391 A.2d 364 (Md. 1978)].


Causes of Action (MARYLAND)

Plaintiff in any products liability action must establish three product litigation basics: (1) the existence of a defect; (2) the attribution of the defect to the seller; and (3) the causal relation between the defect and the injury. Although the themes of negligence, breach of warranty, and strict liability are distinct, they converge for they all require proof that the product was defective when it left the hands of the manufacturer, and that the defective condition was the predicate cause of the injuries or damages of which the plaintiff complains [Mohammad v. Toyota Motor Sales, U.S.A., Inc., 947 A.2d 598 (Md. Ct. Spec. App.  2008)].

Strict Liability – Maryland has adopted Rest. (2nd) of Torts, 402A.  One who sells any product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for harm thereby caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user without substantial change in the condition in which it is sold [Mohammad v. Toyota Motor Sales, U.S.A., Inc., 947 A.2d 598 (Md. Ct. Spec. App. 2008)].


Negligence – Separate cause of action.  A “negligent but not strictly liable” verdict was allowed [Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. Spec. App. 1998)].


Breach of Warranty – Maryland has adopted the standard UCC express warranty [Md. Code Ann. Com. Law § 2-313]; implied warranty of merchantability [Md. Code Ann. Com. Law § 2-314]; implied warranty of fitness for particular purpose [Md. Code Ann. Com. Law § 2-315].  Seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home or any other ultimate consumer or user of the goods or person affected thereby if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [Md. Code Ann. Com. Law § 2-318].


Definition of “Defect” (MARYLAND)

A defective condition in the manufacture or design means the product containing such condition may reasonably be expected to be capable of inflicting substantial harm [Lahocki v. Contee Sand & Gravel Co., 398 A.2d 490 (Md. Ct. Spec. App. 1979)].


In determining whether a product is defective in its design or its manufacture, Maryland usually applies the consumer expectation test under which a “defective condition” and “unreasonably dangerous” conditions are explained in terms of consumer expectations.  However, the risk/utility test is applied when something goes wrong with a product [Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (Md. 1985)].

Also, see discussion below: re: design defects.


Liability of Sellers (MARYLAND)

Sellers may be protected by the “sealed container” defense [Md. Code. Ann., Cts & Jud. Proc. § 5-405].


It is a defense to an action against a seller if the seller establishes that: (1) the product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form; (2) the seller had no knowledge of the defect; (3) the seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care; (4) the seller did not manufacture, produce, design, or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant's injury; and (5) the seller did not alter, modify, assemble, or mishandle the product while in the seller's possession in a manner which was the proximate and substantial cause of the claimant's injury.


The defense is not available if: (1) the manufacturer is not subject to service of process in Maryland; (2) the manufacturer has been judicially declared insolvent in that the manufacturer is unable to pay its debts as they become due in the ordinary course of business; (3) the court determines by clear and convincing evidence that Plaintiff would be unable to enforce a judgment against the manufacturer; (4) Plaintiff is unable to identify the manufacturer; (5) the manufacturer is otherwise immune from suit; or (6) the seller made any express warranties, the breach of which were the proximate and substantial cause of the claimant’s injury.


“Sealed container” means a box, container, package, wrapping, encasement, or housing of any nature that covers a product so that it would be unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition in the product. A product is deemed to be in a sealed container if the product, by its nature and design, is encased or sold in any other manner making it unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition.


“Seller” means a wholesaler, distributor, retailer, or other individual or entity other than a manufacturer that is regularly engaged in the selling of a product whether the sale is for resale by the purchaser or is for use or consumption by the ultimate consumer. “Seller” includes a lessor or bailor regularly engaged in the business of the lease or bailment of the product.





Defenses (MARYLAND)     

Contributory/Comparative Negligence – Maryland follows strict contributory negligence (Plaintiff is barred from recovery even if 1% at fault) [Board of County Com'rs of Garrett County, Md. v. Bell Atlantic-Maryland, Inc., 695 A.2d 171 (Md. 1997)].  However, contributory negligence is not a defense to strict liability claims [Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md. 1992)].


Assumption of Risk – Affirmative defense.  When a person undertakes work which exposes him to obvious dangers which he knows (or has the opportunity to know), he must be considered as having assumed such risks, and he cannot recover for any injuries resulting therefrom.  Defendant must show that Plaintiff: (1) had knowledge of the risk of danger; (2) appreciates that risk; and (3) voluntarily exposes himself to it [Liscombe v. Potomac Edison Co., 495 A.2d 838 (Md. 1985)].


Product Misuse – Misuse of a product may bar recovery where the misuse is the sole proximate cause of damage, or where it is the intervening or superseding cause.  Misuse is a “defense” only in the sense that proof of misuse negates one or more essential elements of a plaintiff’s case, and may thereby defeat recovery [Ellsworth v. Sherne Lingerie, Inc., 495 A.2d 348 (Md. 1985)].


Product Alteration/Modification – Seller is not liable where mishandling or alteration after delivery of the product renders it unsafe [Ellsworth v. Sherne Lingerie, Inc., 495 A.2d 348 (Md. 1985)].





Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (MARYLAND)

There is no recovery under negligence or strict liability theories for purely economic losses resulting from defective product [A.J. Decoster Co. v. Westinghouse Elec. Corp., 634 A.2d 1330 (Md. App. 1994)].


However, Plaintiff may still recover in tort if defect creates substantial and unreasonable risk of death or personal injury [U.S. Gypsum Co. v. Mayor and City Council of Baltimore, 647 A.2d 405 (Md. App. 1994)].  In order to assert a products liability theory, an action sounding in tort, but one premised on economic loss alone, Plaintiff must allege facts that demonstrate that the product creates a dangerous condition, one that gives rise to a clear danger of death or personal injury; when the risk of serious injury/death and the likelihood of the damage are great enough, the cost to remedy the product defect stands in the place of actual physical injury [Lloyd v. General Motors Corp., 916 A.2d 257 (Md. App. 2007)]






Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (MARYLAND)

Factors to be considered in determining whether a product defect may be inferred from circumstantial evidence include: (1) expert testimony as to possible causes; (2) the occurrence of the accident a short time after the sale; (3) same accidents in similar products; (4) the elimination of other causes of the accident; and (5) the type of accident that does not happen without a defect [Harrison v. Bill Cairns Pontiac, Inc., 549 A.2d 385 (Md. Ct. Spec. App. 1988)].


Design Defects (MARYLAND)                                                                                               

In determining whether a product is defective in its design or its manufacture, Maryland usually applies the consumer expectation test under which a “defective condition” and “unreasonably dangerous” conditions are explained in terms of consumer expectations.  However, the risk/utility test is applied when something goes wrong with a product [Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (Md. 1985)].


When applying the risk/utility test, there are seven factors which should be considered in determining whether a product is reasonably safe: (1) the usefulness and desirability of the product; (2) the availability of other and safer products to meet the same need; (3) the likelihood of injury and its probable seriousness; (4) the obviousness of the danger; (5) common knowledge and normal public expectation of the danger; (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings); and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive [Phipps v. General Motors Corp., 363 A.2d 955 (Md. 1976)].


The “risk-utility” test regards a product as defective and unreasonably dangerous, for strict liability purposes, if the danger presented by the product outweighs its utility. Where this test is applied, the issue usually becomes whether a safer alternative design was feasible, for, if so, that would likely alter the balance by reducing the extent of the danger.  A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller and the omission of the alternative design renders the product not reasonably safe [Halliday v. Sturm, Ruger & Co., 792 A.2d 1145 (Md. 2002)].


Although the issue of a manufacturer's compliance with industry standards may be relevant to a claim based on negligence, it is generally considered to be irrelevant in a strict liability case [Banks v. Iron Hustler Corp., 475 A.2d 1243 (Md. Ct. Spec. App. 1984)].



Failure to Warn (MARYLAND)

The seller of a product is required to give warning against the danger, if he has knowledge (or by the application of reasonable, developed human skill and foresight should have knowledge) of the danger. A product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. A manufacturer of a product, which is defective only because of the lack of an adequate warning, is not liable when the failure to warn resulted from an absence of knowledge of the dangerous quality of that product.  The presence of the required knowledge can be established by evidence that the dangerous quality of the product should have been known by a manufacturer because it was known in the scientific or expert community. The manufacturer is held to the knowledge and skill of an expert. This is relevant in determining whether the manufacturer knew or should have known the danger. The manufacturer’s status as expert means that at a minimum he must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby.  In a failure to warn case, negligence concepts to some extent have been grafted onto strict liability. In such cases, an element of knowledge or “state of the art” evidence is directly pertinent to a cause of action, and liability is no longer entirely “strict.”  In a strict liability failure to warn case, "state of the art" evidence is relevant with regard to the defendant's liability [Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md. 1992)]. 


There is a presumption that a plaintiff will heed a legally adequate warning had one been given.  The evidence offered to rebut the presumption is for a trier of fact to consider in determining whether receipt of a warning would have changed a plaintiff’s behavior [United States Gypsum Co. v. Mayor of Baltimore, 647 A.2d 405 (Md. 1994)].


Under the bulk supplier/sophisticated user defense, a bulk supplier who supplies a dangerous product to a sophisticated purchaser cannot be held liable for not warning the ultimate users of the product of its dangers [Sara Lee Corp. v. Homasote Co., 719 F. Supp. 417 (D. Md. 1989)].



Independent Cause of Action for Evidence Spoliation (MARYLAND)

Not addressed/recognized.