Thursday, March 24, 2022

Maryland Court of Special Appeals: Contributory Negligence as a Matter of Fact is Reserved for the Jury Despite Multiple Inferences of a Plaintiff’s Potential Negligence

Jacqueline Cador v. YES Organic Market Hyattsville Inc., No. 0898, September Term 2020. Opinion by Moylan, J. (Court of Special Appeals February 1, 2022).

In a recently published decision by the Court of Special Appeals, Maryland’s intermediate appellate court clarified the distinction between the evidentiary predicate requiring a finding of contributory negligence as a matter of law and the predicate allowing for a finding of contributory negligence as a matter of fact

On September 21, 2016, Jacqueline Cador ("Plaintiff") went shopping with her family in a grocery store owned and operated by Yes Organic Market Hyattsville Inc. ("Defendant"). It was near closing time and the floors had recently been mopped by an employee of the Defendant. Upon entering the store, the Plaintiff spent a few moments talking to an employee in the check-out area near a conspicuously placed sign reading "Caution: Wet Floor." Although the Plaintiff never acknowledged seeing this "Wet Floor" sign, she was standing very close to it when talking to the employee. The Plaintiff then proceeded to walk down an aisle and fell almost immediately after entering the aisle. Very close to the site of the fall, on the side of the aisle, was a yellow mop bucket. 

As a result of the fall, the Plaintiff required partial knee replacement surgery. The Plaintiff subsequently filed suit against the Defendant for negligence. Prior to trial, the Defendant filed a motion for summary judgment arguing the Plaintiff’s contributory negligence barred recovery. The Defendant argued that, based on the proximity of the Plaintiff to the "Wet Floor" sign after she first entered the store and the mop bucket near to where she fell, the Plaintiff must be deemed to have seen one or both of those objects and was thereby put on notice that the floor was dangerous. Accordingly, the Defendant reasoned that the Plaintiff had notice that heightened caution was necessary and that she failed to exercise that caution. The trial court agreed, concluding that the undisputed evidence showed that the Plaintiff was contributorily negligent by failing to exercise heightened caution when required.

The question raised on appeal was whether the existence of contributory negligence a question of law for the judge or a question of fact for the jury. The Court of Special Appeals cited to Menish v. Polinger Company, 277 Md. 553, 356 A.2d 233 (1976) in support of the proposition that knowledge of a dangerous condition may be imputed to a plaintiff when the supporting factual predicate is so "distinct, prominent and decisive" that reasonable minds could not differ with respect to its message. On the other hand, when the factual predicate is not unequivocal but emits permitted inferences in different directions, then a case of contributory negligence that satisfies the burden of production is not necessarily a case of contributory negligence as a matter of law. Id. at 563.

In the instant case, there was no direct evidence that the Plaintiff was aware that the floor was wet. However, the Court focused on whether the evidence permitted the inference that the Plaintiff should have been aware of the condition of the floor, given her proximity to the "Wet Floor" sign and the yellow mop bucket to where she fell. The Court also raised the question of who is entitled to draw such an inference — the Judge or the Jury.

The Court found that the existence of one "Wet Floor" sign at the entrance of the market was insufficient to warn customers of the wet condition of the floors throughout the store. But what about the yellow mop bucket right next to the spot where the Plaintiff fell? If reasonable minds could not differ that the evidence demonstrated (1) that the Plaintiff actually saw the yellow mop bucket, and (2) that observation communicated the message that the aisle floors were wet, then a finding of contributory negligence as a matter of law would be appropriate.

The Court cited a string of cases which held that “such failures to observe and to avoid are generally deemed to be questions of fact left to the jury.” G.C. Murphy Co. v. Greer, 75 Md. App. 399, 403 (1988); see also Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552, 558 – 59 (1957). Here, the inference that the Plaintiff must have seen the mop bucket was permitted even though she testified that she did not see it. However, that inference was for the jury to make, not the judge. With respect to the message communicated by that mop bucket, the message that the floor was recently mopped, and therefore wet, was one such conclusion that could have been drawn. On the other hand, another conclusion could be that the mop bucket was placed there in advance, waiting for the arrival of an employee to mop the aisle.

        Given the fact that multiple inferences were permitted, when considered in the light most favorable to the Plaintiff, a genuine dispute of material fact existed. Since reasonable minds could have differed as to whether the Plaintiff was put on notice that the floors were wet, the Court concluded that summary judgment on the issue of contributory negligence was not appropriate. Although the evidence permitted a finding of contributory negligence, that finding was for the jury to make and not the judge.

        - John K. Thompson, Associate Attorney

Wednesday, March 16, 2022

Maryland Court of Appeals Clarifies 

Firefighter’s Rule & Limits Application of Schreiber

Topper v. Thomas, 2022 Md. App. Lexis 3 (Md. App. 2022)

Earlier this year, the Maryland Court of Special Appeals issued a decision clarifying the “firefighter’s rule,” which bars firefighters and police officers injured in the course of their duties from suing individuals whose actions caused them to respond to the scene. Simply put, the very nature of their jobs limits their ability to sue tort-feasors for work-related injuries. The exception to this rule occurs when firefighters and officers suffer either injuries after the initial period of the risk has surpassed or injuries that were not reasonably foreseeable as a part of the anticipated risk they would face.

In February 2017, Deputy Kassondra Topper responded to a motor vehicle collision where the at-fault driver had rear-ended another driver. At the scene of the accident, Deputy Topper requested the at-fault driver move his vehicle because he was blocking other travelling vehicles. As he was attempting to move his vehicle, he seemingly lost control and in order avoid colliding with another vehicle in front of him, he swerved to the side, colliding with Deputy Topper instead. Deputy Topper filed a complaint against the driver’s estate to recover for the injuries and damages that she suffered. The trial court granted summary judgment to the estate finding that because the accident that injured Deputy Topper occurred during an incident she had responded to, the firefighter’s rule barred her from recovery.

Deputy Topper appealed, arguing that her case fell under the exception to the firefighter’s rule pursuant to Schreiber v. Cherry Hill Constr. Co., Inc., 105 Md. App. 462 (1995). In Schreiber, a state trooper had responded to the scene of a motor vehicle collision near a construction site, where another trooper had set up flares to create a safety zone. While the trooper was responding to the accident, a driver uninvolved in the initial collision lost control of her vehicle and struck the trooper in the safety zone. The Schreiber Court held that the firefighter’s rule did not bar the trooper from recovery because it was unforeseeable that the trooper would be struck by a car while responding to an accident. Likewise, Deputy Topper argued that her being struck while responding to an accident was also unforeseeable and similar to the situation in Schreiber.

The Court of Special Appeals, affirming the trial court’s  judgment, distinguished this case from Schreiber, finding that Deputy Topper’s arrival at the accident scene, facilitating exchange of insurance information, and ensuring the safety of the scene by directing traffic to accommodate other drivers, is what caused her injury--and therefore, because her injury arose from the initial collision to which she responded, her injuries were a foreseeable risk. To the contrary, this Court noted that in Schreiber, the trooper’s injuries did not result from the accident that she had been investigating, but an uninvolved driver losing control of her vehicle as a result of the safety flares and construction zone. Therefore, the cases were distinguishable.

The Court’s decision is notable because it creates a standard that an officer responding to a car accident and accidentally injured by the involved parties is a foreseeable risk of her duties, whereas an officer who is struck by an uninvolved party to an accident is seemingly unforeseeable, especially if she can point to other contributing circumstances that caused the second accident. 

- Rima Kikani, Associate Attorney

Sunday, March 13, 2022

The Maryland Court of Special Appeals analyzes Assumption of the Risk, Battery, and Summary Judgment Regarding Injuries Sustained by a Fan at a Ravens Game.

Callinan v. NFL, No. 994, 2021 Md. App. LEXIS 1121 (Spec. App. Dec. 23, 2021)

In November 2015, Paulina Callinan was attending a football game between the Baltimore Ravens and the San Diego Chargers at M & T Bank Stadium. She had entered the game with a ticket that contained the following language on the back “Ticket holder assumes all risks incident to the game or related events, including the risk of lost, stolen or damaged property or personal injury of any kind.” She was seated 6 rows behind the sideline and was recording the players on her cellphone as they ran out from the tunnel. Around this time, Ravens punter, Sam Koch was practicing punts on the sideline. Koch then kicked an errant punt which struck Callinan in the face.

            Callinan filed suit in the Baltimore City Circuit Court alleging negligence against the Ravens, Koch, and the NFL. The Ravens and Koch then moved for Summary Judgment on two grounds claiming that as a spectator, Callinan assumed the risk of being struck by an errantly kicked football during a game, and that the exculpatory clause in which was printed on the back of her tickets barred her claims as a matter of law. Callinan then filed an amended complaint alleging battery against Koch. The Defendants moved to dismiss the battery count on the grounds that it was a claim in which relief could not be granted. The Circuit Court held a motions hearing in which all parties participated in oral argument for both motions. The Court then granted the motion to dismiss and the motion for summary judgment. The Court stated that there were no disputes as to any material facts, Callinan assumed the risk as a matter of law, the exculpatory clause was valid and did not fall into any of the exceptions to enforceability under Maryland law, and the complaint failed to plead facts showing that Koch intended to harm Callinan.

            Callinan then appealed stating that the circuit court erred three ways: 1. in dismissing the battery claim against Sam Koch; 2. in ruling that Callinan assumed the risk; and 3. that the Circuit Court erred in not allowing additional discovery.

            The Court of Special Appeals first addressed the dismissal of the battery claim. The Court stated that battery occurs when one intends a harmful or offensive contact with another person. In this matter, Callinan failed to allege facts sufficient to show that Koch intended to case harmful or offensive contact. The Court also found that Callinan’s alleged facts did not show that Koch had a general intent to unlawfully invade another’s physical wellbeing though offensive or harmful contact. The Court therefore did not err in dismissing the battery claim.

            The second question before the Court examined whether Callinan had undertaken an “assumption of risk.” The Court analyzed the three elements of assumption of the risk: 1. knowledge of the risk; 2. appreciation of the risk; and 3. voluntary exposure to the risk. The Court ultimately found that Callinan had full knowledge of the likelihood of a football flying into the stands, which she would appreciate as a football fan, and that she voluntarily attended the game.

            The final question before the Court was if Callinan was entitled to additional discovery before the Court’s ruling on the motion to dismiss and motion for summary judgment. The Court ruled that she was not entitled to any additional discovery in the matter, upholding the decision of the trial court. The Court of Special Appeals found that there was no dispute as to any material fact, that Callinan assumed the risk as a matter of law, and the Court did not err in denying Callinan’s request to stay that decision pending further discovery.


Kari Martiniano, Law Clerk