Thursday, March 1, 2012

Recent Court of Appeals Decision Significantly Alters Notice Element in the Defense of “Black Ice” Cases in Maryland

            For years, the “assumption of risk” defense has been used by defendants in slip-and-fall premises liability cases.  Essentially, the elements of this defense are that a plaintiff knew of and appreciated a dangerous condition, and voluntarily decided to proceed in the face of that danger.  Until recently, Maryland precedent allowed a defendant to prevail as a matter of law prior to trial by filing a motion for summary judgment, under the theory that when a plaintiff ventured outside in inclement weather, the plaintiff knew or should have known that there existed a possibility of slipping and falling on ice or other precipitation, and voluntarily assumed that risk.  In other words, all that was required to prove the “knowledge” element of the assumption of risk defense was that weather conditions existed at the time of the alleged occurrence that could have produced slippery and unsafe conditions.  The plaintiff was then presumed to have knowledge and appreciation of that danger.

            The Maryland Court of Appeals opinion in Poole v. Coakley & Williams Construction, Inc., et al., which was released in October 2011, overruled prior case law as it related to proving knowledge and appreciation of a dangerous condition on the part of a plaintiff.       

            George Poole alleged that he slipped and fell on “black ice” one morning as he was walking through a parking lot toward the rear entrance of his place of employment.   Water was being pumped from a nearby building and a stream ran through the parking lot into a drain.  The defendants allegedly owned and controlled the building, or took part in pumping water out of pipes and into the parking lot.  The plaintiff sued the defendants alleging several counts of negligence, including negligence for failure to “prevent a stream of water from flowing onto the parking lot, thereby causing black ice to form.”  The plaintiff argued that he thought that it was safe to proceed through the stream because he had walked through it previously without incident.  In the trial court, the defendants filed a motion for summary judgment under an assumption of risk theory, which was granted.  The trial court applied the rule in Allen v. Marriott, stating, “[t]he Court of Appeals and the Court of Special Appeals have made it abundantly clear that when someone is aware of icy conditions in an area and nevertheless elect[s] to proceed through those areas they assume the risk as a matter of law.”    

The plaintiff appealed to the Maryland Court of Special Appeals; however, the Court of Appeals issued a writ of certiorari on its own initiative.  The Court subsequently reversed the granting of summary judgment, finding that the plaintiff “did not assume the risk of his injuries as a matter of law.”  The Court held that a particular plaintiff must have “actual, subjective knowledge” of a risk before he can be held to have assumed that risk as a matter of law.  Assumption of risk will only be granted if the “undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.”  Notably, the Court distinguished “black ice” cases from those where a plaintiff encounters visible snow and ice.  In the former, knowledge may be imputed as a matter of law, with the rationale being that the plaintiff fell on snow or ice that was plainly visible.  “Black ice,” on the other hand, is difficult or impossible to see and does not reflect as much light as regular ice. 

The crux of the Poole holding is that actual knowledge may not be imputed to the plaintiff.  In other words, the Court of Appeals overruled the holding in Allen v. Marriott to the extent that the previous rule allowed the courts to bridge the gap between imputed knowledge of a given risk (i.e., there may have been icy conditions) and actual knowledge of a given risk (i.e., there were icy conditions).  This holding, however, does not otherwise alter or affect the use of the assumption of risk defense.  It simply defined and clarified when a plaintiff can be held to have knowledge and appreciation of a given risk as a matter of law, which is a factual determination. 

Article contributed by James Buck & Danielle Williamson

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