Maryland Court of Appeals Thaws Assumption of the Risk Standard In Black Ice Cases
Maryland – Civil Practice/Assumption of the Risk
- Maryland’s highest court has overturned past precedent concerning application of the defense of assumption of the risk to snow and ice slip and fall cases.
- Knowledge of the potential for black ice formation, or of the existence of visible ice or snow, is no longer sufficient to demonstrate a plaintiff’s assumption of the risk of black ice.
- Where the facts, and all reasonable inferences therefrom, permit more than one conclusion as to whether a plaintiff assumed the risk of injury, summary judgment is improper.
For years, Maryland’s application of the defense of assumption of the risk to slip and fall cases placed defendants at a distinct advantage. Although Maryland law required that a plaintiff know and appreciate a given risk and voluntarily choose to encounter it, where it was clear that a reasonable person of normal intelligence would have understood the risk at issue, courts could – and often did – determine that an individual had assumed the risk of injury. As applied to cases involving snow and ice, Maryland jurisprudence found the risk posed by snow and ice was one which “any one of adult age must be taken to appreciate,” and, thus, the knowledge and appreciation of the risk posed by ice and snow was, barring exceptional circumstances, imputed to plaintiffs as a matter of law, thus clearing the way for courts to dismiss plaintiffs’ claims based upon their assumption of the risk of injury. Much to injured parties’ further dismay, Maryland courts have made no distinction between visible “white” ice and "black ice." “With white ice, you see it is there. With black ice, you infer the likelihood that it may be there. Either establishes the element of awareness.” Allen v. Marriott Worldwide Corporation, et. al., 961 A.2d 1141 (Md. App. 2008).
Now, following a pair of recent decisions sure to end the freeze on active prosecution of slip and fall cases, Maryland’s highest court has cleared a path by which those alleging to have slipped on black ice can avoid judicial disposition of their claims. In Poole v. Coakley & Williams Construction, Inc. and Forsgate Ventures II, LLC, 2011 Md. LEXIS 659 (October 27, 2011) and Thomas v. Panco Management of Maryland, Ltd., 2011 Md. LEXIS 671 (October 31, 2011), Maryland’s highest court overturned the precedent set forth in Allen, distinguishing “black ice” cases from the broader body of slip and fall litigation by concluding that knowledge of the risk of black ice should not be imputed to plaintiffs as a matter of law where the facts, or the reasonable inferences from such facts, are in dispute.
In Poole, the plaintiff slipped and fell on black ice while wading through a stream of water running across the parking lot at his place of employment. Mr. Poole testified that the majority of the parking lot was covered with visible ice and snow, and that he chose to walk through the stream of water because it contained no visible ice and he believed it to be safer than attempting to cross the otherwise icy parking lot. Mr. Poole testified that he could not see the black ice at the time he entered the path, and he did not know there was black ice in the path at the time he chose to wade through the water.
Mr. Poole filed suit in the Circuit Court for Montgomery County, claiming that Forsgate was negligent in failing to maintain the condition of the parking lot and that Coakley was negligent in failing to prevent the stream of water pumped from the construction site from flowing through the parking lot and causing the formation of black ice. The trial court granted summary judgment in favor of Forsgate and Coakley, finding that Mr. Poole had assumed the risk of his injury because the presence of visible ice and snow should have alerted Mr. Poole to the possibility that black ice might also be present. Mr. Poole appealed to the Court of Special Appeals, and prior to the intermediate court hearing Mr. Poole’s appeal, the Court of Appeals issued a writ of certiorari on its own initiative to determine whether the trial court erred in determining that Mr. Poole assumed the risk of his injury.
In reversing the trial court’s grant of summary judgment, the Court of Appeals first noted that to assume the risk of injury, Mr. Poole “must” have known that the risk – black ice – was actually present and that it was insufficient to argue that Mr. Poole “would,” “should” or “could” have known that the risk “might well be present.” The court reiterated that for Mr. Poole to have had knowledge of the risk, undisputed evidence of actual knowledge of the risk was required. The court noted Mr. Poole's testimony that, while there was obvious snow and ice covering the majority of the parking lot, he did not know there was black ice in the stream of water. Mr. Poole testified that he chose to walk in the water specifically because it contained no visible snow or ice, thus, leading him to believe it was a safer path. The court concluded that, on the basis of the record, the trial court erred in imputing knowledge of the risk of black ice to Mr. Poole, invalidating the core holding of Allen.
The Court of Appeals reiterated this position days later in its opinion in Thomas v. Panco Management of Maryland, Ltd., 2011 Md. LEXIS 671 (October 31, 2011). In Thomas, the plaintiff was injured after slipping and falling on black ice located on the sidewalk outside her apartment complex. Ms. Thomas testified that when she left her apartment complex early on the morning of the accident, she noticed patches snow and ice on the sidewalk. When she returned to the complex in mid-afternoon, the ice and snow had melted, leaving wet patches on the sidewalk. Ms. Thomas came and went from her apartment several more times that day and noticed that the sidewalk was wet but saw no salt pellets or other evidence that the walking surface had been treated. When she left her apartment at approximately 8:00 p.m. that evening, Ms. Thomas slipped on ice which she could not see and which she did not know had accumulated on the lowest step leading to the sidewalk. A neighbor, who rushed to assist Ms. Thomas following her fall, also slipped on what the neighbor described as “black ice” that had formed on the lowest step.
Ms. Thomas filed suit against the owner of her apartment complex and its management company. At trial, following the close of Ms. Thomas’ case, the defendants moved for judgment, asserting that Ms. Thomas had assumed the risk of injury. The trial court granted the defendants’ motion, noting that under Allen, Ms. Thomas had knowledge of the risk of slipping on black ice as a matter of law. The Court of Special Appeals, also relying upon Allen, affirmed, and the Court of Appeals granted certiorari to determine whether the Court of Special Appeals erred in concluding that, as a matter of law, Ms. Thomas knowingly and voluntarily assumed the risk of slipping on black ice when she left her apartment.
The Court of Appeals, citing liberally to its days-old opinion in Poole, determined that the trial court erred by imputing knowledge of the risk of black ice to Ms. Thomas as a matter of law. The court emphasized that, as stated in Poole, the Allen Court inappropriately expanded the “knowledge” aspect of the assumption of the risk test in such a way as to allow the trial court to impute knowledge of a risk in circumstances where the risk may not have actually been fully known to and understood by the plaintiff. Ms. Thomas, like Mr. Poole, testified that she had no knowledge that black ice had formed anywhere in the area, thus creating a jury question as to Ms. Thomas’ knowledge of the existence of black ice, her knowledge and appreciation of the danger of black ice, and whether she voluntarily chose to encounter it when she walked down the stairs. Because the facts presented, and all reasonable inferences from such facts, permitted more than one conclusion as to whether Ms. Thomas assumed the risk of her injury, the court concluded that the trial court incorrectly granted the defendants’ motion for judgment.
The Court of Appeals has clearly broadcast that dismissal of slip and fall claims by application of assumption of the risk is no longer a foregone conclusion. Poole and Thomas make clear that Maryland courts must proceed with caution when called upon to determine, as a matter of law, whether a plaintiff assumed the risk of injury when encountering icy and snowy conditions. Defendants, in turn, must be prepared to shift defense strategies when faced with claims involving black ice, as the risk of this hazard is one that is now unlikely to be imputed to plaintiffs as a matter of law.
* Lauren, an associate in our Harrisburg, Pennsylvania, office, is licensed to practice in Pennsylvania and Maryland. She can be reached at 717.651.3703 or by e-mail at firstname.lastname@example.org.
Defense Digest, Volume 18, No. 1, March 2012