*1
v. CORP. RAILROAD PASSENGER NATIONAL 143, Sept. Term, 2009. No. Appeals Maryland.
Court of
Dec. *5 Darby (Guy P. Matthew M. Albertini and H. David Leiben- Berman, Sobin, Gross, LLP, sperger of Feldman Darby, & Towson, MD), brief, on for petitioner/cross-respondent. (Daniel Setliff, B.
Stephen Caplis Goldberg W. Turner & Holland, P.C., Baltimore, MD), brief, for respondent/cross- petitioner. BELL, C.J., HARRELL, BATTAGLIA,
Argued before GREENE, MURPHY, BARBERA, ADKINS and JJ.
GREENE, J. jury are asked to determine whether We instruction in a suit to the proposed by plaintiff brought pursuant (“FELA”), Liability §§ Act 51- Employers’ Federal U.S.C. (“Petition- (2006), improperly denied. Michele Collins “Collins”) brought survivorship wrongful er” death against Passenger Corporation actions the National Railroad “Amtrak”) (“Respondent” or that Amtrak’s alleging caused the death of her husband and former Amtrak employ- (“Decedent” Collins”). ee, Robert or “Mr. Collins Mr. Collins assignment was electrocuted while on to take read- alignment ings span of overhead electrical wires on a of railroad track. trial, solely At Amtrak contended that Mr. Collins was respon- injuries sible for his fatal because he mounted the roof of a work vehicle and came into contact with an wire energized any specific absent order to do so and in violation of a trial, company proposed rule. At Collins explaining against negli- that Amtrak could not defend gence by asserting claim that the Decedent had assumed FELA injury. Although expressly risks of his bars the as- defense, sumption injected by of risk it was into the trial Amtrak; therefore, the trial judge by abused his discretion providing cautionary instruction.1 shall Accordingly, we reverse and remand for a new trial. instruction”, phrasing referring "cautionary adopt to a we When cases, Employers’ Liability e.g. used federal courts in Federal Act see
I. *6 17, 2005, February working On Mr. Collins was his normal shift, a.m., 10:00 weekday p.m. 6:00 as an Electrical Trac- tion Lineman based out of Perryville, Maryland, Amtrak’s facility. maintenance Mr. employed Collins had been Department Electrical Traction for approximately eight years. (“the He was a member of a crew of five men “D- crew” or 126”) foreman; including: the crew Operator; the Cat Car2 Lineman; an Electric Traction and an Electric Traction Line- man Trainee. job Mr. Collins’s involved routine maintenance of the electrical catenary system3 along Amtrak’s northeast corridor, specifically the Perryville section between and Balti- more, Maryland. a.m.,
Around 3:40 the crew was directed to conduct align- ment readings catenary of the system recently on a serviced section of track. The electricity remained on while the read- taken, ings were so the crew foreman a safety conducted briefing to working discuss under the energized wire. The R.R., 1309, Taylor (9th Cir.1986) Burlington v. N. 787 F.2d 1316 and we meaning
understand the to be an instruction that clarifies the distinc- contributory negligence. tion between of risk and For Co., example, Burlington in Sauer v. Northern R.R. 106 F.3d (10th Cir.1996) approved following the Tenth language Circuit as an appropriate cautionary instruction: You part plaintiff, find on the however, simply request because he acceded to the or direction of the responsible representatives employer danger- of his that he work at a job, dangerous place, ous or in a or under unsafe conditions. (10th Cir.1996) omitted); (quotations F.3d and citations (3d Operations, accord Fashauer v. N.J. Transit Rail 57 F.3d Cir.1995); Co., 206, 209-10, (9th Jenkins v. Union Pac. R. 22 F.3d Cir.1994); (7th Cir.1989). Transp., Gish v. CSX 890 F.2d vehicle, colloquial "Cat Car” is the catenary term for a maintenance 2. diesel-powered which is a rail car that is used to assist crews in the taking alignment readings along the railroad track. The crew routinely along perform rode these cars the railroad to their mainte- nance duties. catenary system provides The electrical current to electric trains through a series of overhead wires which run above the railroad tracks. was record- the crew foreman taken and while readings were men wit- assignment, during collected ing the data then a on flash, thump explosion, heard bright nessed a the roof of in flames on Boone found Mr. Collins the roof. Mr. burns fatal electrical Collins suffered the Cat Car. Robert the roof railing an electrified into contact with coming after the Cat Car. the roof of the Cat Decedent mounted It presumed physical manually pantograph,4 tie down Car to injuries fatal Decedent sustained his indicated that evidence method used crew was a “Stomping” “stomping.”5 while Division to commu- Amtrak’s Mid-Atlantic South members of needed pantograph operators nicate to Cat Car a crew member required method lowering. “stomping” *7 stomp portion and to on the roof of the Cat Car atop climb trial, At directly operator.6 above of the roof that was a member had to break testified that crew Amtrak officials rule, employees requires which company’s “three-foot” catenary system, distance from the three feet of maintain cross-examination, method. On stomping to use the order equipped pantograph, which is with 4. The roof of the Cat Car catenary system. When wire of the to the overhead contact raised wire, energized pantograph becomes electri- contact attached to an de-energized only when it is cally charged. pantograph becomes pantograph be tied catenary wire. Before a can from the unattached down, requires pantograph, operator must lower the which the Cat Car operator the Cat Car to communicate to a crew member lowering. crew used two methods of pantograph Decedent’s needs communication, ''stomping” Car or namely on the roof of the Cat yelling. injuries groin The Court to his area. suffered severe burn Decedent presumption physical evidence Special Appeals accepted the that the stomping engaging practice of when he suggested was in the Decedent Md.App. Passenger Corp., 187 Nat’l R.R. was electrocuted. Collins v. (2009). is no that the There contention 978 A.2d presumption. this presented at trial rebutted evidence directly operator was within above the Cat Car part of the roof 6. The therefore, pantograph, crew member had to straddle three feet of the bar, pantograph, to safely within three feet of the which was located stomp roof. on the Amtrak officials conceded awareness of “stomping” meth- od, but acknowledged that it did not bar the practice. trial,
During Amtrak officials and Decedent’s fellow crew members testified about Decedent’s work experience, safety training, his decision not to invoke Amtrak’s Right of Refusal policy.7 Collins offered an instruction on the inapplicability of the assumption of risk defense “because of the potential overlap with of risk and contributory comparative negligence---- might What happen is that \f\ they say they could believe there, Mr. Collins standing he knew that the pantograph took, was energized you and he know, the classic voluntary assuming, getting close to the pantograph job.” to do his
Collins’s proposed instruction No. 17 stated: (sic) § 45 U.S.C. 54 of the Federal Employer’s Liability Act provides in pertinent part
In any brought action against any common carrier under or by virtue any of the provisions of this chapter to recover damages injuries for ... any employees, its such employee shall not be held to have assumed the risks of his employment where such injury ... resulted whole or in part from the negligence any officers, agents or employees of such carrier....
Assumption of risk is not a proper defense in a FELA action and as such it not be in any way considered reaching your decision. *8 §
45 U.S.C. 54[J The trial judge denied Collins’s proposed jury instruction. According to the trial judge, the evidence inject did not assumption case; of therefore, risk into the an assumption of risk instruction would have only confused jury the on the issue of contributory negligence. jury returned a verdict in favor of Amtrak at the conclusion of a five-day trial. Right
7. Under Amtrak’s policy, employees of Refusal may decline to particular work under they circumstances if feel that the work cannot completed safely. be 226 Special Appeals, to the Court of subsequent appeal
In her was from ample that “there evidence Petitioner contended have, did, improperly most jury likely the could which recover that should not be- [Petitioner] draw the conclusion the risk of the incident.” Col- cause assumed [the Decedent] 295, 307, 187 Passenger Corp., Md.App. R.R. 978 lins v. Nat’l 822, filed a condi- Amtrak (Md.Ct.Spec.App.2009). A.2d appellate that the intermediate cross-appeal requesting tional City’s for denial of review the Court Baltimore court Circuit should it decide to reverse the judgment Amtrak’s motion for Appeals The Court judgment. Special Court’s Circuit that judgment, cautionary the instruc- agreeing affirmed all of the evidence tended to necessary tion was not because of risk. assumption not implicate Collins, 315-16, 978 at 834. Collins filed at A.2d Md.App. and asked: for a of certiorari this Court petition writ case of Appeals, in this first Special
Whether
Court
rule
impression
[8]
in FELA cases that a
Maryland,
erred
jury
not
instruction
applying
stating
majority
minority
majority
to
We
not cast
decision relative
or
rule
do
our
analysis
dichotomy.
law
our
of federal case
reveals no such
because
Rather,
fact-specific holdings
opinions
show
on
instruc
federal
issue,
employee’s injury:
which
the whole context of the
tion
consider
orders,
dangerous
specific
knowledge
general or
whether there were
risk,
conditions,
alternatives, extraordinary
ordinary
customary
safe
or
rules,
policy,
operating
opt-out
exercise
or evi
deviation from
of an
Operations,
v.
generally
of choice.
Fashauer N.J. Transit Rail
dence
See
Inc.,
Cir.1995)
(3d
(holding
57 F.3d
that an
was
required
jury
would
not raised
trial and the
not
because it was
defense);
sponte
v. Union Pac. R.R.
have sua
considered
Jenkins
Co.,
Cir.1994)
(9th
(holding
227 assumption of the risk is not a given defense should be where there is any danger that the defense was explicitly or implicitly by evidence, raised and in doing so erroneous ly affirmed the decision of the trial court not to give instruction in this case.
Amtrak filed a cross-petition for certiorari and presented question: this
Whether the Court of Special Appeals
erred
not review-
ing and not overturning the trial court’s denial of Amtrak’s
motion for judgment as the decedent was the sole cause of
injuries.
granted
We
both petitions. Collins v. Nat’l R.R. Passenger
598,
411
Corp.,
(2009).
Md.
particles jobsite at his and the circumstances of the case called for a "careful distinction” between risk and negligence); Hamrock Corp., v. Consol. Rail Ill.App.3d Ill.Dec. 501 N.E.2d (holding that an instruction required plaintiff put because performing evidence of a "dan gerous job under customary orders and in the manner without safe alternatives”). *10 to the necessary jurors was instruct cautionary instruction the risk conclude that Mr. Collins assumed they may that to the law they apply applicable of and that were injuries his they if found first that Amtrak only to negligence that Mr. Collins’s negligent, secondly and not harmless injury. to fatal error was contributed his the risk if the found that Decedent had assumed jury because by voluntarily choosing energized to under injuries of work and lines, negated duty operated determination Amtrak’s that Further, recovery. we shall complete as a bar to Petitioner’s failing not err in the court did appellate hold that intermediate cross-appeal, to the issue raised Amtrak’s conditional reach that decision affirm light it was moot of court’s to because We shall reverse the judgment the Circuit Court. Special Appeals the of and direct that court of Court judgment for of purposes to the to Circuit Court a new remand case trial.
II. of the abuse of discretion standard review apply We proposed jury trial denial considering judge’s when of State, 180, 186, 414 A.2d Sidbury See v. Md. 994 instruction. (2010) 948, that decision of whether to (stating give 951 “[t]he the discretion of the instructions within sound supplemental and not be disturbed on absent a clear judge appeal trial will discretion.”) State, 217, 237, Md. (citing Roary v. 385 abuse State, (2005)). 1106 In v. 347 Md. Gunning A.2d 351-52, (1997), reiterated that A.2d we ... of trial is a matter of the decision the court “[w]here on on a clear except discretion it will not be disturbed review is, discretion, manifestly of abuse of discretion showing unreasonable, grounds, on untenable or for unten exercised judge by assessing A trial able reasons.” exercises discretion a particular the at trial warrants produced whether evidence to that evidence legal principles applicable instruction Therefore, the parties. to theories the onus is on jury trial and ensure instructions judge discern to the case. encompass applicable substantive law While judge’s ruling, improper we defer to the trial exercise in revers party discretion cause and result prejudice to Bell, 27, 33-34, A.2d ible Flores v. Md. error. Cf. (2007) complaining (noting upon 719-20 that the burden is prejudice and error that party probability show both “manifestly substantially injurious”). is both wrong analysis three to our requisite components
There are proposed incorpo of whether the instruction should have been (1) jury: requested rated into the ultimate to the charge law; exposition must be a correct applicable law evidence particular must have been to the *11 (3) requested before the and jury; the substance of the not instruc fairly by instruction must have been covered the Jewelers, v. actually given. Wegad tions See Howard Street Inc., 409, 414, 123, (1992) 326 (noting Md. 605 A.2d 126 the 2-520(c) impact of Rule on the third Maryland component State, 187, 197-98, analysis); the see 404 946 Dickey v. Md. (2008) 444, A.2d 450-51 (holding requirements the same arise 4—325(c)); from the criminal law Md. Rule accord counterpart 55, Hamrock v. Corp., Ill.App.3d Consol. Rail 151 103 Ill.Dec. 736, 1274, (1986) 501 N.E.2d 1279 that “a court’s (stating charge ... only will be deemed proper adequately where it and correctly covers the requested substance the instruc tions and to is fair both parties”). Maryland,
In litigants are entitled to have their theory of case presented jury, the to the provided theory the exposition is a correct of the and is supported by law the 414, evidence. Wegad, 326 Md. 605 (citing A.2d at 126 Pickett, 186, Sergeant 194, 651, Co. v. 285 Md. A.2d (1979)). Consequently, a FELA case a litigant is entitled to some defense, assurance that a by abolished the governing statute, will not be jury. considered the The use of instructions, negative i.e. instructions the should ‘not’ doctrine, should, hinge its resolution on an inapplicable howev er, given only be when necessary. Ellsworth v. Lin Sherne Inc., 581, 599-600, (1985) gerie, Md. 495 A.2d negative when a instruction judges determine
(indicating deliberations). jury’s harmful the helpful will be not case, actually given by the In the instruction present of risk nor trial did not reference judge involving FELA cases inapplicability the doctrine task, therefore, is to determine whether action.9 Our to the evidence proposed applicable presented instruction was Co., & Tel. Chesapeake also v. Potomac at trial. See Fearnow (stating any one “[i]f 342 Md. 676 A.2d met, will court’s the test is we affirm trial part of instruction”). review part for As our request denial of the instruction to applicability proposed of Collins’s evidence, consider that the absence of probability we jury’s deliberations. impacted III. focus on Decedent’s
Petitioner contends that Amtrak’s face of a voluntary dangerous action knowledge carelessness, condition, to the implicitly appealed rather than In Re- response, of risk. forbidden defense cause of fatal spondent argues that Decedent the sole no order to mount the roof of the injury gave because Amtrak car, dangerous, and he must have known it was Decedent therefore, wire; energized the instruc- chose to encounter the *12 and applicable sufficient. negligence tion If, at exclu- as the evidence adduced trial Respondent argues, from sively injury Decedent’s fatal resulted implicated that employer to conditions that the carelessly adding dangers new maintained, there have been no abuse negligently would If the evi- proposed in instruction. denying discretion however, dence, voluntary, knowledgeable to show tended necessarily acceptance of a condition encountered dangerous (as perceive we perform employment the duties of concluded, agree, Special Appeals we 9. The Court fairly proposed of law and was not "was a correct statement instruction 6, Collins, 308, Md.App. fn. by the other 187 covered instructions.” 830, 6. 978 A.2d at fn.
231 reveal) judge record to abused his by denying discretion the instruction.
Upon review of federal case interpreting law 45 U.S.C. 54,10 trial, § instructions, the evidence adduced at the jury sheet, the verdict and in light applicable of the standard of review, we hold that there was error in omitting instruction on the inapplicability of the assumption risk affirmative prejudiced defense and that the error Petitioner.11 Assumption A. An of Risk Defense Prohibited 1906, FELA, In Congress enacted a broad remedial frame- work addressing recovery injured for railroad workers.12 See Atchison, Co., Buell, Topeka 557, & Santa Fe Ry. v. 480 U.S. 10. explicitly of risk doctrine is addressed in the Federal ("FELA”), Employers’ (2006), Liability §§ Act 45 U.S.C. 51-60 a federal statute; therefore, we consider federal substantive law in addition to Maryland Rules of Civil Procedure and related case law in our analysis Dickerson, of the Ry. issue. St. Louis Sw. Co. v. 409, 411, 1347, 1348, U.S. 105 S.Ct. 84 L.Ed.2d matter, (stating general adjudicated "[a]s a FELA cases in state courts rules, subject procedural are to state governing but the substantive law federal”); them is Transp., Bickerstaff, see also CSX Md.App. Inc. v. 187, 241, (2009). 978 A.2d This Court looks to the decisions courts, interpret the federal application which of FELA's aboli- tion of the affirmative Ry. defense of of risk. See S. Norfolk Sorrell, 158, 166, 799, 805, v. 549 U.S. 127 S.Ct. 166 L.Ed.2d (2007). Harris, P.A., 310, 319, 11. See v. Harris David S. 310 Md. 529 A.2d (1987) (stating perceived that "unless it is that the error causes the injury merely there can be no reversal because there is error. 'We have injury, prejudice litigant, defined or to the as error that influenced the ”) (citation omitted). outcome of the case.' Liability under pertinent FELA is described part: Every by common engaging carrier railroad while in commerce ... damages any person shall be liable in suffering injury while he is commerce, employed by or, such carrier in such in case of the death employee, of such personal representative, to his or her for the surviving benefit of the injury widow ... for resulting such or death part officers, in whole or any from the agents, carrier, employees or of such any reason of defect or insuffi- cars, ciency, negligence, due to its engines, appliances, in its machin- track, roadbed, works, boats, ery, wharves, *13 equipment. or other (2006). § 45 U.S.C. 51
232 563, 1410, 1414, (explain- 571 562, 94 L.Ed.2d 107 S.Ct. FELA to a remedial provide intended ing Congress that and to eliminate several employees for railroad framework liability); v. River defenses to tort Green common law cf. Cir.1985) (6th Co., 805, (noting 763 F.2d 806 Ry. Terminal FELA of liberally provisions construe that courts should in of the remedial employees light railroad injured in favor of statute). objective of the FELA, of of the doctrine passage
At the time of
... because of
“applied generally
risk was
assumption of
employee’s compensation
theory
of the
acceptance
and that he
position
risk to his
the added
upon
was based
Tiller,
Atl. Coast Line
he
ex. v.
quit
pleased.”
could
when
444, 448,
610,
Co.,
54, 61,
L.Ed.
63 S.Ct.
R.R.
318 U.S.
(1943).
doctrine, however,
distinct
practically
was never
overlap
and so the
“became
from
Tiller,
63,
S.Ct. assump- every vestige § 54 to abolish ed for 45 U.S.C.
233
FELA).
arising
tion of risk defense from all claims
under
in
abolished the doctrine of
of risk
Congress
assumption
FELA
acknowledge
cases because the doctrine failed to
that
employers, not
controlled
See
employees,
working conditions.
Tiller,
65,
450,
(noting
Assumption of risk
employee’s
common law an
“[a]t
voluntary, knowledgeable acceptance
dangerous
of a
condition
”
that
him
necessary
is
for
perform
Taylor,
duties....
68,
(citing
§
FELA
statute, thus,
is a comparative negligence
a
recovery may only
claimant’s
be
upon
showing
reduced
a
contributory negligence.13
§
45 U.S.C.
“Contributory
53.
...
negligence
complete
is not a
bar to a plaintiffs recovery
but, rather, operates to diminish the
recovery
proportion to
parties’ comparative
fault.” Butynski
Springfield
v.
Ter
(1st
Cir.2010) (citation omitted).
minal
Ry.,
F.3d
“Contributory
...
a
negligence
is
careless act or omission on
the plaintiffs part tending to add new dangers to conditions
employer
that the
negligently
permitted
created or
to exist.”
Taylor,
(citing
FELA case sufficient an undue of harm in conduct that caused risk ployee engaged herself, should be instructed to himself or then any employee of fault to the so percentage apportion “The appropriately can then be reduced. damages awarded de- cannot recover because argument plaintiff [the] merit. wholly without ceased’s it diminish the amount of Contributory negligence, while to a cause of action [complete] not a defense recovery, is Act, §§ Employers’ Liability on the Federal bottomed *15 Co., R. 135 Valley §§ 53.” Ramsouer v. Midland U.S.C.A. Cir.1943). (8th does Contributory negligence F.2d cases, the amount of the in FELA it reduces recovery not bar award. damage assumption the doctrine of the abolition of
Despite
explicit
brought pursuant
from the resolution of claims
of risk
FELA,
similarity
of its
to contribu-
practical complications
the
defense,
permitted
persist.
is a
tory negligence, which
of
[assumption
a
exonerates a servant from
statute
“[W]hen
risk],
it
the defense of contribu-
if at the same time
leaves
the
master,
then,
great
to the
unless
tory negligence
open
still
taken,
rights
by simply
the
will be sacrificed
care be
servant’s
under another name.”
assumption
him with
of risk
charging
(3d Cir.1963)
Co.,
Pa. R.R.
318 F.2d
Koshorek v.
omitted).
(citation
finding
contributory negli-
Because a
of
will reduce his or her
part
employee
on the
gence
would bar
finding
of risk
damages, while
job
the delicate
juries]
separat-
have
recovery, “courts [and
from evidence on the other.”
theory
evidence on one
ing out
Fashauer,
B.
Cautionary Instruction
view,
FELA sets a low
interpreting
In
federal case law
our
of the risk
determining
for
whether
threshold
warranted;
however,
there
no consensus
is
is
evidentiary scenar-
precise
the federal courts as to the
among
The Third
cautionary
instruction.
ios which necessitate
Fashauer,
that,
concluded,
part
“the
difficult
most
Circuit
merit
instruc-
determining
[the
when the facts
inquiry
court,
the Fashauer
by
In the
the intermediate
Fashauer
suggested by the
ployed
analytical approach
did not explicitly
and concluded that Amtrak’s evidence
court
Fashauer,
1274-75:
14. As noted
the Third Circuit in
57 F.3d at
*16
it,
put
statutory
As one court has
‘the
elimination of the defense of
risk,
assumption
in FELA cases where that
when read to the
pleaded
argued,
only
has been neither
nor
serves
to obscure
‘defense’
Co.,
Ry.
Elgin,
361
the issues in the case.’ Casko v.
Joliet and Eastern
748,
(7th Cir.1966).
Appeals
751
The Court of
for the Second
F.2d
Circuit, relying
proposition
give
'it is a mistake to
case,'
subjects
directly
v.
instructions on
in issue in a
DeChico
R.R.,
856,
(2d Cir.1985) (cita
Commuter
758 F.2d
861
Metro-North
omitted),
assumption
that ‘an
of risk instruction
tion
has cautioned
"might
particularly inappropriate
well cause
be
in cases where it
to water down or even eliminate the issue of
such confusion as
’
contributory negligence.”
(quoting
Pennsylvania
Id. at 861
Clark v.
591,
denied,
1006,
Co.,
(2d Cir.),
84
R.R.
328 F.2d
595
cert.
377 U.S.
1943,
N.,
(1964));
Burlington
S.Ct.
responsible contributory negli- under for his own order, But carries gence. employee when out a direct if even he has reason to the order him exposes know danger, contributorily negligent; he is not rather his con- duct falls under the abolished doctrine of of the risk.
Jenkins,
added).
F.3d at
(emphasis
Under Fashauer
Jenkins,
implicate
risk,
direct orders
general
implicate contributory negligence.
while
orders
Fashauer,
if
Secondly,
general
under
there is evidence of a
order,
discretion,
if the employee exercised
or alternative
available,
methods to
the task
perform
were
then the reason-
employee’s
dispositive
ableness of an
actions is
and “unreason-
able
of risk
assumptions
constitute evidence of
Fashauer,
negligence.”15
Our concern with Fashauer, is that it did not address pursuant decided jury may inferences that the have full of reasonable spectrum both orders and discre- regarding drawn from the evidence tion, say action. cannot and reasonable or unreasonable We assumption that the of risk defense was as a matter of law fact it was injected the case because as a matter of into Thus, denied the the evidence. was implicated rendering before having explained explicitly benefit of the law masquerad- of the risk “assumption a verdict. Here we have name,” cautionary under another and a ing Schwartz, § (quoting 9- at 1280 4(c)(2), Victor E. Negligence, Comparative (3d 1994)). ed. Smith, expert reasonably Third Circuit held that an skier In therefore, dangerous slope; assumed the risk of his descent down a he negated recovery the defendant’s was barred from because his conduct care, slope, duty the same he or but if a novice skier had encountered unreasonably be have assumed the risk of his or her she would found to recovery with conduct and his or her would be reduced in accordance comparative negligence. Special Appeals the doctrine of If the Court case, applied analogy it had this from the Fashauer court to the instant skier, expert likely was an would most have concluded that Mr. Collins eight years experience, as an Electrical Traction Lineman with who dangerous slope, by working within an area with descended down a Thus, machinery. applying electrically charged heavy the Third Cir- analogy, engaged in a cuit’s Mr. Collins reasonable implicating under Fashauer the defense of of the risk risk necessitating cautionary instruction. *18 238 to of
required proper application ensure a the statute to the jury. evidence to the v. River presented Ry., Green Terminal (6th Cir.1985) 763 F.2d that in (explaining light of FELA’s remedial the purpose, liberally “statute should be injured constructed favor of the plaintiff’).
Therefore, in light analysis, of the Fashauer we think it prudent judge give cautionary for the trial to instruction when evidence of an employee’s knowledge of dangerous employment conditions of is the jury, before where jury must draw inferences from facts about orders, general existence of direct or determina where tions of reasonableness must made. in cautionary be “[A properly given when the issue assumption struction] of of expressly implicitly jury, risk is or before the though even Hamrock, explicitly raised at trial.” 103 Ill.Dec. N.E.2d at 1279. As noted by Special Appeals: the Court of impermissible no evidence of
[I]f of risk has jury, reached the a correct contributory However, if, will do. either because evidence introduced at trial or because statements made coun sel in opening closing arguments, there is a risk that the implied theory consent seeped risk its case, way into the should be that it may instructed not find on the part plaintiff simply ... because he acceded the request or direction of responsible of his representatives employer that he dangerous job, dangerous work at a or in a or under place, unsafe conditions.
Collins,
Fashauer,
Md.App.
(citing
We
of the delicate task before a trial judge
who must discern whether the evidence adduced might evoke
an impermissible
jurors,
line of reasoning among while
under the
being required
Maryland rules of civil procedure
and common law to adequately
theory
address a defendant’s
case,
affirmative
R.R.
including
defenses.
Clark v. Pa.
Cf.
Cir.1964)
(2d
assump-
that an
(holding
Co.,
F.2d
confusion as
cause such
“might well
of the risk instruction
tion
issue of
eliminate the
down or even
to water
injured employee,
to an
prejudice
The potential
negligence”).
however,
careful
warrants
recovery,
complete
bar
namely
jurors
the inferences
the evidence and
scrutiny of
of the case.
presentation
reasonably draw from
Applicable
*19
in the Instant Case
Instruction
was
C.
negligence was
on
jury
because the
it was insufficient
yet
to the evidence
applicable
risk. See Siciliano
assumption of the
implicated
also
evidence
R.R.,
413, 415
364 P.2d
2d
&
Utah
v. Denver R.G.W.
denied,
Amtrak contended that the Am- acting to injury pursuant his fatal because he was orders, mount the roof of dangerous he knew it was to trak’s Car, place he chose to himself risk voluntarily the Cat re- wire. The record energized because he encountered an flects, empha- Amtrak argument and at oral before this Court sized, that the it Decedent’s choice and that was baffled choice, effect, Amtrak’s under the precluded only to De- circumstances because causation was attributable not, however, An employer may cedent. benefit from a find- ing of non-negligence impermissible based inference by the jury, which is our perception of the result in this case. Special Appeals
The Court of
analyzed
potential
two
eviden-
tiary
behest,
sources of confusion for the jury, at Collins’s
namely
Right
Policy
of Refusal
and Decedent’s decision to
mount the roof of the Cat Car. That court held that there was
no error in denying Collins’s proposed jury instruction be-
cause neither evidentiary source
necessitated an
Collins,
314-16,
risk instruction.
In light of the evidence adduced that
the Decedent
(2)
care,
violated the standard of
there was a reasonable
alternative in instructing
operator
panto-
lower the
graph, and
no crew member ordered the Decedent
go
onto the roof of the Cat Car and
get
somehow
close to the
pantograph, we conclude that the
doctrine of
risk
not implicated by
the evidence elicited at trial
pertaining to the Decedent’s decision to go onto the roof of
the Cat Car when
pantograph
was energized.
*20
Collins,
315-16,
Md.App.
at
essence,
We that there was evidence adduced that acting custom, Mr. Collins was pursuant to it was to be presumed that he acted reasonably, and Amtrak mounted a defense directed to the elements of assumption of the risk in to, of, addition if not to the near exclusion contributory Co., negligence. Joyce See v. Atlantic 651 F.2d Richfield (10th Cir.1981) that, (holding under the Jones Act apply- FELA, of ing principles of the risk instruction necessary was because the evidence focused on the employee’s acceptance of the dangerous condition and not employee’s the omission); negligent Lines, act or see also Rivera v. Farrell Inc., (2d Cir.1973) 474 F.2d 257-58 (stating that a jury employee’s on the based finding of line in his condition dangerous that a knowledge “strength of “assumption duty” line of was in that working ... his duty of name”). cautionary A under another masquerading risk of the jury direct needed to instruction clarifying or carelessness, of risk.17 acceptance not his Decedent’s consider Policy Right of Refusal of the 1. Evidence into the Case Injected Doctrine decision the Decedent’s evidence of that Petitioner asserts cautionary Refusal warranted Right of to invoke his not concluded that may have because he did employment of his because the risks assumed Decedent conditions, particular under the job perform refuse to not that the evidence asserts Respondent line. energized i.e. the assignment, or out of the opt decision not the Decedent’s from the area electricity be shut down that the request contributory negligence, evidence of track involved is that safer shows the evidence of risk because alternatives, available. quitting, besides were in Amtrak employees that undisputed
It is
into
which was offered
policy,
of Refusal
Right
voke the
Di
testimony
Nangle,
through the
Gerard
evidence
According to Mr.
Traction Maintenance.
of Electrical
rector
engineering department ha[d]
Nangle, “any member
The inter
they
unsafe.”
[felt was]
to refuse work
right
Am
describing
that evidence
court held
appellate
mediate
“expressly
implicitly
did not
Right
policy
of Refusal
trak’s
Collins,
the trial.”
of the risk into
inject[] assumption
reasoning
The court’s
Collins,
(first
Respondent’s Appeals’s are both fashion under analysis persuasive not because an net inclusive to catch the instances where risk is needed. solicited Testimony Respondent Right from he summarized Nangle immediately Mr. after stated, statement, example, opening 19. For in it’s Amtrak’s counsel person totally this one who would have and could have avoided “[T]he tragedy is S. ... science. Had Mr. Robert Collins It's rocket de-energized procedure [tying followed that down latched Collins Furthermore, today.” closing argu- pantograph], be he would alive ment, this ... Amtrak's counsel stated "Amtrak did not cause accident surely you he Mr. Collins was the main cause because must believe that opportunity every from situation ... this had extricate himself nobody up shortcutting job ... wanted him to be was Mr. Collins there.” of Refusal on the policy, knowledge focused Decedent’s policy, safety extent briefing just prior to executing assignment, the “decision of job the crew” to do the under energized juxtaposition wire. The of the evidence of ‘opt-out’ with policy repeated testimony related Mr. knowledge Collins’s experience particular line of *23 work evokes elements of the of the risk defense and not from careless deviation the standard of care.
The Special Court of Appeals’s Right consideration of the Refusal and Policy that court’s conclusion that it could not have raised impermissible an inference of the case, risk is also its holding inconsistent with in a similar CSX al., Transp., Bickerstaff, 187, Inc. v. Richard Md.App. et 187 (2009), 978 A.2d in a cautionary instruction was which on given upheld appeal.20 In Bickerstaff, the Court of Special Appeals identified presented evidence at trial the appellant that the trial employer supported judge’s decision to instruction, cautionary a give to namely “making choices work a rail particular yard, at to mount and dismount moving a equipment particular at speed, job to take [and] on involving walking....” more The court concluded:
The
argument
evidence adduced and
presented concerning
appellees’ choice
work or work
support
site thus
appellees
inference
voluntarily
that
and knowingly accepted
dangers
inherent
in working
appellant
for
they
when
performed
jobs.
their
Such evidence and
in-
argument
that,
instruction,
creased the risk
in
an
the absence of
jury
improperly
would
that appellees
infer
had assumed the
Therefore,
risk in performing their
subject jury
work.
charge adequately, and quite appropriately, distinguished
between
constituting contributory
conduct
negligence and
constituting assumption
conduct
Accordingly,
risk.
Collins,
appellate
opinion
intermediate
Md.App.
court’s
20.
295,
(2009)
August
Bickerstaff, Md.App. added). case, Appeals Special the Court of In the instant to policy of Refusal beyond Right the evidence went was offered then for which evidence purpose divine in alignment to with the purpose wholly declare that be offering for evi- management’s proffered railroad reason dence, defense. namely to bolster a court satisfied in appellate The intermediate was Bickerstaff site, however, analogous choice to the that evidence of of work energized despite under line recourse to the choice work clarifying, sufficient to warrant a Right Policy, Refusal cautionary Special Appeals instruction. The Court of offered distinguish no reason in the instant case to its persuasive from conclusion here the one reached Bickerstaff. case, also Special
In the the Court of held present Appeals reasons and presented regarding evidence trial roof of why about decedent went onto the presumptions *24 Car, the departed Cat “tended to show that Decedent from the unreasonably care and acted under the circum- standard of stances, contributory the of implicating negli- thus defense Collins, not of the gence assumption Md.App. risk.” omitted). (citation at In its closing 978 A.2d jury, highlighted statement to the Amtrak Mr. Collins’s knowl- energized of the edge dangers catenary system the of to pantograph. choice mount the roof to tie down the This however, theory consistent the of argument, assump- is with tion of risk. evidence,
In
it
light
conflicting
is unclear whether the
acting
Decedent
the discretion that is central to the
was
with
reasoning and conclusion that
appellate
intermediate
court’s
assumption
the
It is
implicated.
risk was
unknown
roof,
exactly why Collins went on the
but
evidence
physical
thereby
to
on the car roof
suggests
position
stomp
he was
alerting
operator
tying-down
the
that he was
the pantograph.
jury necessarily
conflicting
was confronted with
evidence
why
on in
precisely
power
particular
on
the
remained
this
circumstance,
especially
light
repeated testimony
kind of
performed
this
routine maintenance was
under a de-
line
the time.
energized
99% of
Petitioner elicited testimony
at trial
to cast Amtrak
tending
directing
as
the crew explicitly,
decision,”
work
through
energized
“conscious
to
under an
however,
Respondent,
line.
contends that it
the
“crew’s
to
alignment reading
energized
decision”
do the
under
wire.
members,
Breader,
the
George
One of
crew
testified that it
foreman,
Boone,
was the crew
the
Thomas
who made
decision
energized line,
to do the
under an
reading
and the crew
trial,
with
agreed
that decision. At
Amtrak official testified
that an
the
advantage
keeping
power
on was that “when
you
power,
remove
trains won’t run on certain
One
areas.”
the crew members also testified that
advantage
“[t]he
[to
less
keeping
power
people
on]
that the
that have to be
involvedf,] ...
time
requires.”
less
that it
A reasonable
jury could have inferred from this evidence that Amtrak
directed Mr.
to ‘accept
dangerous
Collins
condition’ of
employment and that there
company
was a benefit to the
assignment.
leaving
power
during
According
Circuit,
Tenth
“when
the evidence could
either
support
negligence
risk,
only
instructions which
define contributory
are
prevent
not sufficient to
from applying assump-
Co.,
tion of
risk.” Sauer v. Burlington Northern R.R.
(10th
Cir.1996)
F.3d
(involving
a FELA case where
the instruction did address
the risk and its
inapplicability,
mentioning
albeit without
the defense by
name);
Thomas,
see e.g.,
Ry.
S.
Co. v.
258 Va.
Norfolk
(1999) (noting
S.E.2d 620
same
evidence
be
defenses). Here,
to both
*25
relevant
Amtrak’s
theory
case
was that Mr. Collins elected to encounter the known risks of
working
vicinity
the
of an energized
jury
wire. The
could
Mr.
have concluded that
Collins was carrying
continuing
out
orders from Amtrak to tie
pantograph
down the
as matter of
This interpretation
course.
of the evidence could have led to a
of
finding
contributory negligence or
risk.
assumption of
Implicates Assumption
of Risk
Evidence
of Custom
concluded,
the
“it is clear that
Special Appeals
The Court
impliedly
show
Decedent
adduced does not
that the
evidence
a task
manner which
‘perform[
[Amtrak]
to
the
]
consented
” Collins,
Md.App.
Although produced explicit neither evidence party that pantograph, to mount the Cat Car tie down order alignment when an customarily what was done precisely was completed. Tying pantograph down the was job was D-126 among custom members universally understood it officials who did not crew and was known Amtrak trial, attorney definitively stop practice. At Amtrak’s Nangle: asked Gerard just jurors,
Did so are clear anyone night, we have crew member—either you any any did information that Breader, Backer, foreman, Boone, operator, Mr. Mr. Mr. time, he doing I maybe think was there at was who information any any have crew things—do you other get and somehow go up top member ordered Mr. Collins any for pantograph, close to reason? “No, answered, one, gave no Nangle knowledge, to our
Mr. Boone, for the crew go up.” him to Thomas foreman, however, contradictory testimony that there offered general always pantograph. instruction to tie down Fora, You were told Mr. COUNSEL]:
[COLLINS’S down the Engineer, pantograph Assistant Division to tie *26 even it though completely was any failure, without history of correct?
Mr. Boone: Correct.
[COLLINS’S Had you COUNSEL]: ever seen anything writing about the tying-down of the pantograph? (No Mr. Boone: audible response.) [COLLINS’S Had you ever been given any COUNSEL]: detailed instructions about tying-down the pantograph? Mr. Boone: Just to tie them down.
[COLLINS’S And that was COUNSEL]: direction from Mr. Foura to tie it circumstances, down under all correct? Mr. Boone: Correct.
Further, Mr. Boone testified that he did not know whether the rule applied when the wires energized were or de-energized. trial, Foura, Later at Walter Project Senior Officer in the Mid-Atlantic Division testified that he verbally communicated to foremen and supervisors to pass down to their subordinates the rule that the pantograph down, was to be tied but only under a de-energized line. In response question to a about why none of Amtrak’s ground crews seemed to know about rule, this caveat to the that it be tied down under de-energized Mr, lines, Foura said that it was the responsibility of the foreman and supervisors to disseminate the information. Then, Mr. Foura testified about a 2004 memo written upper level management explicitly stating the pantograph was never to be tied down under any circumstance. Evidence was also adduced at trial the crews tied down the pantograph routinely because a latch on the Cat Car which should have functioned keep the pantograph secured to the roof of the vehicle did not function at the time of Decedent’s fatal injury, had never Thus, functioned properly. evidence on subject this was contradictory. conceivable,
It is in light evidence, of this that the jury may have inferred that Collins was following his employer’s di- rection that the pantograph should be tied down at the end of an alignment reading job in accordance with his understanding of his position on the crew and the customary procedure. that, order” under inference invoke “direct This would Fashauer, cautionary instruction. This evidence warrants along tie with evidence procedure, about the down prior job investigative report safety meeting *27 the acted orders mount finding that the Decedent without to wire, to live directs attention Decedent’s approach roof and choice, jury may awareness risk. have knowledge, and the about testimony dismissed Amtrak’s characterization and Be- relating tying-down pantograph. and rules custom know jury properly cannot whether the considered cause we carelessness, relative to we only aspects those of the evidence conclu- jury’s be confident that the verdict reflects cannot injury of the Decedent’s was his own sion that sole cause or that it was his the risk. See carelessness (9th Cir.1994) Jenkins, 206, 22 211-12 (noting the as- F.3d if risk instruction is warranted the evidence sumption either of the prove can risk). 55, Ill.App.3d
Hamrock v. Rail 151 103 Corp., Consol. 501 appel Ill.Dec. N.E.2d 1274 illustrates how an a it was unclear if the late court Illinois resolved case where was under In employee acting general direct or orders. Hamrock, Hamrock’s about conductor “informed” crew need made to train align the movements that would to be in the each configuration, cars desired member was Hamrock, part job. decide how to execute his of the 736, 501 said: Ill.Dec. N.E.2d at The court support there in the record for plaintiffs Because merely performed dangerous job under theory he customary manner without safe alterna- orders him, tives available to there was evidence from which reasonably plaintiff could have inferred that assumed cautionary the risk and should have been given.
Hamrock,
Hamrock,
1280. In
Ill.Dec.
N.E.2d at
attempt
court
to show that the
determined “defendant’s
injury
own
plaintiffs
sole cause
was his
carelessness
brakeman,
familiarity
as
plaintiffs years
emphasizing
maneuver,
with the coupling
and his knowledge of the condi
tion
yard
of the
the need for a cautionary
underscore^
instruction____” Hamrock,
103 Ill.Dec.
The case
Hamrock,
is instructive because Mr.
like Mr.
Collins, “was familiar with the railroad’s safety rules but
stated that he and other train men customarily rode moving
cars and manipulated the
cock
angle
with their feet.” Ham
rock,
added).
Ill.Dec.
N.E.2d
1276 (emphasis
practice,
This
tying-down
like
the pantographs, was not in
accordance with the formal rules set by the employer. The
court in Hamrock also
just
stated that
because an employee
rule,
safety
violates a
that does not establish that the employ
*28
ee was the sole
injuries
cause
“particularly in light of
evidence that the rules were seldom utilized or were nullified
by
Hamrock,
custom.”
103 Ill.Dec.
3. Petitioner was Harmed the Omission Cautionary
of a Instruction Respondent contended argument at oral that Petition question er’s before this Court is moot because the jury answered “Question “No” to 1” sheet, on the verdict asserting, it, as we understand that jury because the found that Amtrak was not negligent it necessarily perform did not any analysis of proposed, implied affirmative Respondent’s defenses.21 Question No. 1 of the verdict sheet read as follows: Defendant, you 1. Do find the Passenger National Corpo- Railroad (Amtrak) negligent
ration regard February with to the incident of 1” “Question that the structure recognize fails to argument in not error the trial court’s compounded on the verdict sheet jury inapplicability on the instructing question, to the first answering In “No” risk defense. had assumed employee have concluded that jury may duty Amtrak’s negating thereby employment, risks of his Amtrak was found that jury could have entirely, or the because, injury fatal did not cause Mr. Collins’s negligent but it, for his “solely responsible” characterized he was as Amtrak injury. FELA is under negligence case of
A
facie
prima
federal
in accordance with
the common law elements
based
causation.22, Szekeres
breach, foreseeability, and
duty,
law:
Cir.2010)
Inc.,
(6th
(citing
617 F.3d
Transp.,
v. CSX
Cir.1990)
(6th
Inc.,
Transp.,
v.
F.2d
Adams CSX
negligence
a cause of
asserting
FELA
(holding
plaintiff
that a
com
the traditional
“prove
her
must
against
employer
his or
breach, foreseeability,
duty,
negligence:
mon law elements of
contributed,
in whole or
caused or
2005 and
part,
injuries
Collins?
to the
and death of Robert
Question ‘Yes’or 'No'.
Answer this
Question
'Yes’,
question
proceed
No. 2.
is
If the answer to this
'No', you may
question
inform the Court
If
answer to this
questions.
further
you
a verdict and should answer no
have reached
are to be deter-
22. of the instructions and the verdict sheet
form
Amtrak,
Pryor
procedural
v.
state
law. See
mined in accordance with
628, 633,
Ill.App.3d
The issue in the petition raised for certiorari is not moot. case, In the present negligence causation were combined Here, into the first on the verdict question sheet. the evi- presented dence focused on knowledge danger volun- addition, In tary encounter of risks. the lack of a cautionary instruction, compounded by a verdict sheet that did not sepa- causation, rate from suggests jury may have concluded that impermissibly Mr. Collins assumed the of his injuries thereby negating duty. risk Amtrak’s
We look to the instructions that were given trial to determine they light whether are relevant issues raised and the evidence presented.24 pre Jurors are sumed to have followed the provided by instructions to them court, legal system necessarily proceeds upon” that “[o]ur Moulden, 666, 678, v. presumption. State 292 Md. 441 A.2d Dennis, (citing v. 292 Md. Blanchfield (1982)). A.2d 1330 This directs our presumption attention to instruction, the substance of the which critically important 24. Because did not raise Petitioner an issue as to the instruction as given, only objected proposed jury she at trial to the denial of her instruction, only language given we review the of the instruction as language likely impermissible so far as its to contribute to consid- jury. eration *30 upon if have relied the defense jury may in determining injury. the risk of his that Mr. Collins assumed in to considered determin- discussing After the elements be judge if the trial instructed ing negligent, Amtrak was care, had acted with due i.e. that Mr. Collins jury presume to because he was deceased reasonably, that he had acted testimony on his own behalf. present could to regard about the law with then instructed negligence: discharged duty
In the Plaintiff determining whether him, proper you care it is for take ordinary imposed upon familiarity with the which he place into consideration his familiarity worked and his with the nature of customarily customarily performed place. the work which was case, In this the Defendant contends that Mr. Collins’[s] injuries negligence. and death were due to Plaintiffs own This is referred to as If find contributory negligence. you not, negligent that Mr. Collins was and that Amtrak was then the Plaintiff prevented recovering damages from (sic) under the Federal Act. Employer’s Liability If you find that the on the of Mr. Collins negligence part part and on the of the Defendant each a role in played death, causing injuries Mr. then Mr. Col- Collins’[s] linsjs] negligence is referred as Rather, prevented and he is not from recovering damages. Mr. are damages proportion reduced to the Collins’[s] of contributory negligence amount attributable to him and I explain will that in some detail very shortly. more you there way dangerous way was both a and a If find safe which the performed could have his work and Plaintiff he knew or in ordinary the exercise care should have known way doing voluntarily such work and safe the dangerous way injured thereby, chose and was and if you negligence that such choice constituted on the find part Plaintiffs and that such was the cause sole if then Plaintiff cannot alleged injury, any, to return your duty recover and it would be a verdict for the *31 Defendant.25 added.)
(Emphasis given adequately While the instruction covered the law negligence contributory negligence, and it failed applicable because, substance, in as a matter of law it did not address all of the evidence and the reasonable inferences to be drawn from the evidence. of the risk is a “distinctive Assumption contributory negligence,” jury kind of and so a should be in a way theory instructed that removes this from consider- generally ation. See 68, § Torts, and Keeton Prosser on instruction, particularly language emphasized Because the above, choice, voluntary jury invokes a should have also been instructed to consider evidence of Decedent’s careless- independently knowing ness of Decedent’s encounter with a instructed, in the course of danger employment. his As of the risk were with the assumption entangled elements negligence. elements of “In distinction, out the the courts have arrived at the working that is a assumption knowledge conclusion risk matter of it, danger intelligent acquiescence in while contributo- is a matter of some fault or from the ry negligence departure conduct, unwilling protest- standard of reasonable however Koshorek, see 367; be.” 318 F.2d at ing plaintiff Co., (2d Cir.1956) v. Erie R.R. Johnson 236 F.2d (holding only instructing al- jury lowed for the to consider of the risk in verdict). its rendering given,
As a result of the instructions
it is uncertain whether
jury
found Amtrak to be not
or whether
negligent
jury’s
“Question
1” meant
found
response
reproducing
charge
pertinent part,
cognizant
25. While
we are
light
made
that our consideration must be
of the instruction in its
entirety, meaning,
phrases
we do not take
out of context. Greenbelt
Bresler,
324, 364,
Coop. Publ'g
Md.
Ass’n v.
252 A.2d
,
grounds,
rev’d on other
398 U.S.
90 S.Ct.
IV. In response to cross-petition case, Amtrak’s in the instant we hold that the appellate intermediate court did not err in declining to reach the presented issue Amtrak’s conditional *32 cross-appeal, which requested the Court of Special Appeals to review the trial court’s denial of Amtrak’s renewed motion for judgment at the close all the evidence. The intermediate appellate court judgment affirmed the of the trial court ruling that, in light evidence, of the proposed Collins’s instruction Hence, was unnecessary. Thus, Amtrak won the appeal. issue presented in Amtrak’s cross-appeal was rendered moot by the appellate intermediate court’s decision to affirm judgment of the trial court. Hagerstown See Reproductive Fritz, Health 268, 272, Services v. 846, Md. 454 A.2d (1983) (holding that rarely courts review the merits of a moot case); Pickett, City Frederick v. 392 Md. cf.
A.2d (noting appellate that an court “could affirm ... ‘on any ground adequately record, shown whether ”) or not relied upon by the trial court’ (quoting Karvounis, 259, 263, Berman v. 308 Md. 518 A.2d (1987)). Accordingly, we hold that the Court of Special Ap- peals did in address, merits, not err to declining on the issue raised in Respondent’s cross-appeal. conditional
The effect of judgment our in this case is a remand for a new trial conformance with this opinion. Because we hold that the trial judge erred in giving requested Collins’s the trial court whether
instruction, not determine we need judgment. Amtrak’s motion for correctly denied V. Decedent’s knowl- case, tended to show the evidence
In this equipment energized with the voluntary encounter edgeable, his work envi- Car, condition of dangerous a aboard the Cat duties as a member ronment, customary executing while Am- have relieved jury may Consequently, D-126 crew. was the sole the Decedent by finding liability trak of the risks involved because he assumed injury his fatal cause of Therefore, judge the trial job. dangerous performing clarify to cautionary failing give erred to applicable were contributory negligence only negligence finding prejudiced because case. Petitioner in apportionment have resulted would contributory negligence disguised finding of damages, but a complete in a bar would result of the risk as recovery. APPEALS THE COURT OF SPECIAL OF
JUDGMENT THAT COURT REMANDED TO CASE REVERSED. THE TO REMAND CASE TO INSTRUCTIONS WITH A CITY FOR FOR BALTIMORE THE COURT CIRCUIT PAY THE TO COSTS. TRIAL. NEW RESPONDENT J., BATTAGLIA, dissents.
BATTAGLIA, J., dissenting. *33 Special Appeals, the Court of by presented
For the reasons
on the interme-
colleagues
Our
judgment.
the
I would affirm
none of
determined that
properly
court
appellate
diate
inserted
implicitly
or
jury expressly
to the
presented
evidence
this
the facts of
trial. Based on
risk into the
assumption of
Refusal and
case,
Right
of
regarding
the evidence
suggested
the train car
the roof of
choice to mount
decedent’s
“
refusing
per-
alternatives,
quitting
‘besides
reasonable
”
R.R.
v. Nat’l
way,’
unsafe
Collins
in an
form the task
822, 833,
295, 313, 315, 978 A.2d
Md.App.
Corp., Passenger
(2009),
Operations,
Transit Rail
Fashauer v. N.J.
quoting
(3d Cir.1995),
Inc.,
only the
such that
F.3d
was in
of
issue.
defense
OF Petitioner
v. CHARLES, Respondent.
James G. 4, Sept. Term, Docket
Misc. AG No. 2010. Appeals Maryland. of
Court of
Dec. ORDER This matter came before the on Court the Joint Petition of Attorney of Maryland Respon- Grievance Commission dent, Charles, consent, by James G. to disbar Respondent, from the practice further of law. Court, Petition, having day considered the it is this 2nd December, 2010,
ORDERED, the Court by Appeals Maryland, that the Respondent, Charles, James G. be and he is disbarred hereby practice consent from the Maryland, law State of further, it is
ORDERED, Respondent’s that effective date of the 31, further, disbarment December and it is ORDERED, shall, the Clerk of this Court Decem- 31, 2010, ber removed the name of James from G. Charles register attorneys in the Court and fact to certify