Schultz v. Bank of America, N.A.

Dissenting Opinion by ADKINS, Judge, which BELL, C.J., and MURPHY, J., Join.

I respectfully dissent from the majority’s holding that expert testimony was necessary to establish Bank of America’s standard of care in this case. In my opinion, the alleged negligence in this case was well within a layperson’s understanding, and was properly evaluated by the trial jury.

I agree that “professional standards are often ‘beyond the ken of the average layman,’ ” and that in some cases, expert testimony is needed to “elucidate the relevant standard for the trier of fact.” See Majority Op., supra, at 28, 990 A.2d at 1086 (citing Bean v. Dep’t of Health & Mental Hygiene, 406 Md. 419, 432, 959 A.2d 778, 786 (2008) (citation omitted)). But, as the majority acknowledges, we do not require expert testimony in every case of professional negligence. See Majority Op., supra, at 29, 990 A.2d at 1086-87.

We have previously held, in other contexts, that an obvious error on the part of a professional practitioner would not require expert testimony to establish a standard of care. In Central Cab Company v. Clarke, 259 Md. 542, 551, 270 A.2d 662, 667 (1970), for example, an attorney failed to notify his client that he had terminated representation of the client; the omission ultimately resulted in a default judgment against the client. We analogized that case to “cases involving medical malpractice in which a dentist pulled the wrong tooth,” or *42where a physician amputated the wrong limb. Id. (citing McClees v. Cohen, 158 Md. 60, 148 A. 124 (1930)). Because the attorney’s behavior in Clarke was a “clear violation of [his] duty ... the trial court should have ruled [against him] as a matter of law.” Id.

In this case, the challenged activity was the addition of a signatory to the decedent’s bank account by way of a signature card presented to the bank. The majority suggests that this process “may occur behind closed doors, out of the sight of the customer, and may involve numerous unknown procedures.” Majority Op., supra, at 35, 990 A.2d at 1090. Such activity, the majority says, involves “internal banking procedures that the trier of fact could not be expected to appreciate.” Majority Op., supra, at 36, 990 A.2d at 1091. This analysis is inapt. Although security mechanisms may be “internal procedures,” the lack thereof may be visible and obvious.

For example, if a bank allowed an unknown person to walk in and withdraw cash based only on her oral attestation that she was the named account holder, that would be a case of obvious negligence. If the rule were otherwise, persons depositing money in that bank would have no assurance as to the safety of their funds. Without such simple precautions, the account holder would have little if any reason to maintain an account.

The obvious nature of the breach of the ordinary standard of care in this example demonstrates that negligence in security measures need not always be proven by expert testimony as to the standard of care. A layperson’s everyday experience with common commercial transactions—from opening bank accounts to making credit card purchases to using automated teller machines—informs an everyday understanding of what precautions a financial institution should use in safeguarding an account holder’s assets. Imposing the requirement of an expert witness to prove negligence in a commonplace transaction imposes a financial barrier to a litigant who has been injured, and should not be done lightly. The duty of care owed by Bank of America to Schultz falls within the everyday *43experience and common sense category. Whatever Bank of America’s professional standard of care might have been, it logically could not have been less than a reasonable person’s duty to take ordinary care in day-to-day life.

In determining the standard of care in a negligence action, “[t]he interest that must be sacrificed to avoid the risk is balanced against the danger.” 3 Fowler V. Harper, et al., Harper, James And Gray On Torts § 16.9, at 524 (3d Ed. 2007). The jury could have concluded that a reasonable bank would carefully examine identification before adding a signatory to an account, in order to protect the assets of its borrowers. A jury could certainly determine that a bank violated this reasonable care standard if it allowed adding a signatory to an account based on a document that the bank had reason to know was not signed by the account holder.

Again I look to the seminal torts treatise, Harper, James and Gray on Torts in which the authors opine:

As a general proposition it is not essential to a party’s case that it prove or otherwise show what its opponent should have done in the circumstances. It is enough to show what the opponent did and what the circumstances were. It is then for the jury to determine whether, in the light of their common experience in human affairs, they find he failed to act as a reasonable person would have acted.... In this sense the jury need not fix or agree on a standard of conduct regarding precautions to be taken, but need only find that the conduct of the party falls short of any standard that they would agree on as reasonable.1

Id. § 17.1 at 600-02 (footnote omitted). This treatise also explains that “[ejxcept for malpractice cases (against a doctor, dentist, or the like) there is no general rule or policy requiring expert testimony as to the standard of care, and this is true even in the increasingly broad area wherein expert opinion will be received.” Id. § 17.1 at 605 (footnote omitted).

*44In this case, Schultz argued that the signature card presented to the bank was a document that the bank, in the exercise of ordinary care would have known was a forgery. Schultz called an expert witness to testify that the decedent’s signature on the card was fabricated. This fact was disputed. The jury may have weighed the expert testimony about the signature along with its own examination of the signature card, and determined that the forgery was sufficiently obvious that Bank of America should have recognized the card as a forgery. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 1104(A), at 457 (3d Ed. 1999 & 2008 Cum.Supp.) (“The trier of fact (judge or jury) is permitted to compare an authenticated writing with the disputed writing.”). Although the bank would not have the benefit of the expert testimony at the time of the transaction, the bank manager testified that he checked the identifications of Schultz and Holbrook, so he could have compared Schultz’s signature on his identification document •with the signature on the signature card used to add Holbrook’s name to Schultz’s bank account.

Additionally, the jury could also have taken into account that the signature card was printed on a personal computer rather than a bank generated document, that the decedent’s Social Security Number was electronically printed while Holbrook’s Social Security Number was handwritten, and that the two signatures were transposed. All of these discrepancies could inform the jury’s evaluation of both the signature card itself and Bank of America’s level of negligence in allowing Holbrook to be added to the account.

In considering the evidence, the jury was not being called upon to evaluate security protocols for an international wire transfer or mechanisms for operating “sweep” accounts, an electronic method to maximize the interest customers earn on their money. Rather, it was reviewing a commonplace transaction involving common sense procedures. It was appropriate for the jury to rely on its members’ experiences with, and expectations about, commonplace banking transactions.

*45The jury verdict, therefore, was a declaration that Bank of America failed to adhere to even the ordinary standard of care charged to a reasonable person. This standard is by definition the minimum that the bank could have employed, and no expert testimony was needed to define a hypothetically greater professional standard of care. The jury determined that Bank of America was negligent under this standard, and the jury verdict should stand. I would reverse the judgment of the Court of Special Appeals.

Chief Judge BELL and Judge MURPHY authorize me to state that they join in this dissenting opinion.

. They also provide extensive examples of cases where negligence was proven without expert testimony. 3 Fowler V. Harper, et ah, Harper, James And Gray On Torts § 16.9, at 600-06 (3d Ed. 2007).