Assumption of the Risk - Slip and Fall on Icy Sidewalk
In Mary Thomas v. Panco Management of Maryland, LLC, et al., ___________ Md. App. ____________ (Oct. 1, 2010), the Maryland Court of Special Appeals affirmed a ruling from the Circuit Court for Prince George's County, holding that, in a slip and fall case, a plaintiff can be held to have voluntarily assumed the risk of slipping on ice or snow even if the plaintiff has no alternative safe route to reach his or her destination, provided, however, that the plaintiff has some alternate safe course of action.
Ms. Thomas sued the owner and management company of her apartment complex for personal injuries that arose when she fell on black ice on the sidewalk in front of her apartment building and fractured her right leg.
In order to establish assumption of the risk, the defendant must establish that the plaintiff (1) had knowledge of the risk, (2) appreciated the danger of the risk, and (3) with this knowledge and appreciation voluntarily encountered the risk. At trial, Ms. Thomas testified that the sidewalk in front of her apartment did not get much direct sunlight and that she knew that when the snow and ice did melt in this area that water would flow onto the sidewalk, making it wet. Further, it was known to Ms. Thomas that when wet, icy conditions could develop on the sidewalk if temperatures fell below freezing. Ms. Thomas encountered icy conditions in the morning of the injury on her way to work. Ms. Thomas then encountered wet conditions two more times later in the day before the temperatures fell below freezing. Later that evening when Ms. Thomas left her apartment for a third time, ice had developed on the sidewalk and Ms. Thomas, who did not see the black ice slipped and fell and broke her leg. The trial court found that Ms. Thomas, based on bits and pieces of information that she possessed and gathered throughout the day as well as her experience at the apartment complex as a longtime resident, had knowledge of the risk that she might be stepping down upon ice and that a reasonable person in her position would have appreciated the danger of that action.
Ms. Thomas argued that even if she had knowledge of the risk and appreciated the risk, she did not voluntarily assume the risk since she had no alternative means of egress from her apartment to the parking lot. However, the Court opined that Ms. Thomas had alternatives, she could have called the apartment complex?s maintenance staff to put down salt, or she could have refused to take her granddaughter to church in the first instance knowing the sidewalks might be icy. Thus, in affirming the trial court, the Court of Special Appeals concluded that Ms. Thomas? actions would only be considered involuntary if she lacked the free will to avoid the situation. Accordingly, even though Ms. Thomas did not have an alternative safe path to her car, she did have a safe alternative course of action to not encounter the known risk, such that her decision to leave her apartment constituted voluntarily encountering the risk which satisfied the third and final prong.
Posted by Robert A. Anderson on 10/21/2010 at 01:23 PM