Premises Liability: Maryland Court of Appeals clarifies assumption of risk defense in black ice case
In George Poole v. Coakley Williams Construction, Inc., et al., No. 130 Sept. Term 2010 (Oct. 27, 2011), and Mary Thomas v. Panco Management of Maryland, LLC, No. 133 Sept. Term 2010 (Oct. 31, 2011) the Court of Appeals overruled the Court of Special Appeals decision in Mary Thomas v. Panco Management of Maryland, LLC, et al., 195 Md. App. 245; 6 A.3d 304 (Oct. 1, 2010) and disavowed Allen v. Marriott Worldwide Corp., 183 Md. App. 460, 961 A.2d 1141 (2008), cert. denied, 408 Md. 149, 968 A.2d 1065 (2009), to clarify that in order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, the plaintiff "must" have known that the risk was actually present, not that he or she "would", "should", or "could" have known that the risk "might well be present."
There are three requirements that a defendant must prove to establish the defense of assumption of the risk: (1) that plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. The question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is ordinarily a question for the jury, unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.
In both the Poole and Thomas cases, the plaintiffs slipped and fell on "black ice" which is distinguishable from "white ice." White ice, such as snow or ice layer, is visible. On the other hand, black ice, even though common knowledge dictates that ice is slippery, is not perceivable or knowable by its nature until the moment it is encountered and experienced.
In Poole, the plaintiff was walking through the parking lot toward the back entrance of his place of employment when he slipped and fell on "black ice" while wading through a stream of water that created a path through an otherwise icy parking lot. Plaintiff alleged that water was being pumped into the parking lot where he was walking due to construction, resulting in a stream of water an inch deep and between two and three free wide that ran through the lot to a drain. Plaintiff testified that, the day before his injury, there was water and ice in the same general area where he fell and that he had noticed that the area was slippery and even warned a co-worker to be careful. Relying on Allen, the trial court granted summary judgment in favor of the defendants on the basis that the plaintiff had knowledge of the icy conditions in the area and choose to proceed under those conditions, thereby assuming the risk of danger.
In Thomas, 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. The trial court granted judgment for defendants applying the rationale in Allen. On appeal, the Court of Special Appeals affirmed the trial court applying Allen and held that even though Ms. Thomas did not have an alternative safe path from her apartment to her car, she did have a safe alternative course of action, which was to not encounter the known risk at all, such that her decision to leave her apartment constituted voluntarily encountering the risk which satisfied the third and final prong.
In Poole and Thomas, the Court of Appeals reversed the granting of judgment as a matter of law on two grounds: (1) it invaded the province of the jury where there was a disputed question of material fact concerning the plaintiff's knowledge of the risk of danger posed by black ice; and (2) the lower court's reliance on Allen, an outlier case that altered the prior meaning and effect of the knowledge prong of the assumption of the risk test.
The Court of Appeals disavowed the reasoning in Allen, concluding that the constructive knowledge test, with an objective standard borrowed from contributory negligence, improperly invades the province of the jury. Thus, to the extent that Allen suggested that the compilation of facts and inferences, amounting to less than actual knowledge, may be sufficient to impute knowledge to a plaintiff as a matter of law, that case is overruled. Instead, the Court reaffirmed the standard stated in Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119 (1991), that "the doctrine of assumption of the risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff." 323 Md. at 283, 592 A.2d at 1123 (emphasis added).
The issue of assumption of the risk rests upon the plaintiff's subjective knowledge. But because the focus is on what the plaintiff actually knew, understood and appreciated, the issue is ordinarily left to the jury to resolve. However, Maryland law has historically suggested that the trial judge apply an "objective standard" when determining the appropriateness of applying the defense as a matter of law. The objective standard language stands for the proposition that there are certain risks which any one of adult age must be taken to appreciate, and, in those cases, a simple denial from plaintiff concerning his or her knowledge of the risk will not be sufficient to avoid judgment for the defendant as a matter of law. Thus, in certain circumstances, "when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court." Id. These types of dangers, the "certain risks which anyone of adult age must be taken to appreciate" include such things as "the danger of slipping on ice, of falling through unguarded openings or lifting heavy objects . . . and doubtless many others."
The Court noted that in the cases where the Court of Appeals has approved the entry of judgment as a matter of law based upon assumption of the risk, the danger has been one that any person in the plaintiff's position must have understood, meaning either a foreseeable consequence of engaging in an activity, or an otherwise patent or obvious danger. When a risk is a foreseeable consequence of engaging in a particular activity, there is an implied consent to relieve others of liability for injury and assumption of the risk may be established as a matter of law. The primary distinction between Poole and Thomas and the cases in which the Court approved the grant of judgment, was whether the plaintiff encountered "white ice", which is visible, or "black ice", which is not perceivable until the moment of experience. In cases involving black ice, the Court has consistently held that a plaintiff does not consent to waive claims for liability beyond "those risks which might reasonably have been expected to exist."
In Poole and Thomas, the Court found that the record suggested that the presence of black ice was more akin to an "unusual danger", so that consideration by the trier of fact was necessary to determine if it was "assumed or not." Therefore, for a plaintiff to have knowledge of the risk, as a matter of law, there must be undisputed evidence that he or she had actual knowledge of the risk prior to its encounter. Actual knowledge can be proven, for example, by evidence of the particular plaintiff's subjective knowledge of a risk, e.g. previous experience with or sensor perception of the danger, or objective knowledge of a risk that the law deems "so obvious that it could not have been encountered wittingly."
Accordingly, the Court of Appeals held that the trial Courts in Poole and Thomas should not have concluded that the plaintiffs actually knew of the risk of slipping on "black ice" as a matter of law, because it is unclear whether they had subjective knowledge of the risk, nor is the risk one that "a person of normal intelligence" in the positions of plaintiffs "must have understood."
Posted by Robert D. Anderson on 12/19/2011 at 10:33 PM
Independent contractor rule in D.C.: WMATA not liable for tuberculosis exposure
In a recent case before the District Court for the District of Columbia, the plaintiff unsuccessfully attempted to invoke two exceptions to the "independent contractor rule." Andrews v. Wash. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 119916 (D.D.C. 2011). That rule provides that a principal is generally not liable for the actions of his independent contractor.
Mr. Andrews filed suit against the Washington Metropolitan Area Transit Authority (WMATA), asserting that a driver of a MetroAccess bus was infected with tuberculosis and exposed his passengers to this disease. WMATA filed a motion to dismiss, on the grounds that the driver was an employee of an independent contractor, MV Transportation, Inc. This motion was later converted into a motion for summary judgment.
Mr. Andrews asked the court to find WMATA liable for the actions of its independent contractor on two grounds. First, Mr. Andrews argued that the independent contractor was engaged in an inherently dangerous activity. Second, MV Transportation was an apparent agent of WMATA because WMATA holds out the MetroAccess bus service as being part of a network of services provided by WMATA.
The court granted WMATA's motion to dismiss. First, this was not an inherently dangerous activity. Driving a bus does not usually pose a danger to others when the driver exercises reasonable care. Even though the particular driver who was infected with tuberculosis posed a risk to passengers, there was no reason WMATA should have known of this risk.
Mr. Andrews' claim of apparent agency was also rejected because it was not supported by competent evidence. The court noted that apparent agency usually does not apply to a government entity as a matter of law, because someone who enters into a formal arrangement with the government bears the burden of ascertaining that "he who purports to act for the government stays within the bounds of his authority." However, the court stated that passengers on a MetroAccess bus would not bear this burden, given the limited and informal nature of their interaction with WMATA. Therefore, if Mr. Andrews had produced evidence in support of his apparent agency argument, he might have prevailed.
Posted by Raphael J. Cohen on 12/16/2011 at 11:12 PM
District of Columbia
Federal jurisdiction and venue: New Legislation Takes Effect
On December 7, 2011, the President signed into law the Federal Courts Jurisdiction and Venue Clarification Act. 112 P.L. 63. The Act is applicable to all actions filed on or after January 6, 2012. This new law makes small but important changes to the procedure for removal to federal court and clarifies the scope of diversity jurisdiction. It also expands federal courts' authority to grant a transfer of venue for the convenience of parties and witnesses.
With respect to removal, the Act clarifies a confusing issue that arises when a plaintiff sues multiple defendants, and different defendants are served with the complaint at different times. Under the new statute, each defendant has thirty days after being served with the complaint to file a notice of removal. 28 USCS sec. 1446(b)(2)(B)-(C). Previously, however, the federal Circuits were split. Some Circuits adopted the rule that is now mandated by the Act. See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008). Others, including the 4th Circuit and the D.C. Circuit, held that a notice of removal cannot be filed more than thirty days after the first defendant is served with the complaint. Barbour v. Int'l Union, 594 F.3d 315 (4th Cir. 2010); Princeton Running Co. v. Williams, 2006 U.S. Dist. LEXIS 62622 (D.D.C. 2006); Phillips v. Corr. Corp. of Am., 407 F. Supp. 2d 18 (D.D.C. 2005). Thus, in cases where the second defendant was served more than thirty days after the first defendant, the second defendant would have no opportunity to remove the case to federal court. Recognizing the unfairness of this approach, the new law gives each defendant the same amount of time for removal.
In addition, the Act curtails removal jurisdiction in cases involving both state and federal claims. The statute now provides that when the claims under state law are unrelated to the federal claims - that is, when they do not arise from a common nucleus of operative fact - the court must sever the state law claims and remand them to state court. 28 USCS sec. 1441(c)(2). The previous version of the statute gave federal courts discretion to either decide the state law claims in federal court or to remand. However, the constitutionality of this rule had been called into question. See Salei v. Boardwalk Regency Corp., 913 F. Supp. 993 (E.D. Mich. 1996).
The new law also makes several changes to removal jurisdiction in diversity cases. The Act provides that the amount in controversy is legislatively deemed to be the amount demanded in the complaint. 28 USCS sec. 1446(c)(2). If the amount in controversy is not clear from the face of the complaint, then the defendant seeking removal must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. The same rule applies if the complaint demands less than $75,000, but state law permits recovery in excess of the amount demanded.
If the plaintiff's discovery responses indicate that the amount in controversy requirement has been met, the deadline for filing a notice of removal is extended until thirty days after receipt of the discovery responses. Sec. 1446(c)(3). However, the extended deadline cannot be more than one year after the complaint is filed, unless the plaintiff deliberately failed to disclose the amount in controversy in order to prevent removal or otherwise acted in bad faith.
Additionally, the Act addresses the status of resident aliens and foreign corporations for diversity jurisdiction purposes. Id., sec. 1332(a)(2), (c). These provisions are designed to limit the ability of foreign citizens and corporations to invoke diversity jurisdiction in order to sue each other in federal court.
Finally, the new law contains a number of provisions relating to federal court venue. The Act permits federal courts to grant a change of venue to almost any federal district or division if all parties consent. Id., sec. 1404(a). The previous version of the statute would not permit a case to be transferred to a venue in which it could not have originally been brought. The Act also eliminates the distinction between diversity and federal question jurisdiction for venue purposes. Id., sec. 1391(b).
The changes mandated by the Act are technical but highly significant. One commentator has called them "the most far-reaching package of revisions to the Judicial Code since the Judicial Improvements Act of 1990." Although they are plainly an attempt to clarify the complex rules governing federal jurisdiction and venue, they will almost certainly raise their own complexities, requiring further revisions of the Judicial Code. And while none of these provisions have been tested or interpreted by the courts, they will be the rules of the road for the foreseeable future.
Posted by Raphael J. Cohen on 12/16/2011 at 05:44 PM
Federal Civil Procedure