We are asked to consider whether the trial court committed reversible error by denying Petitioner’s request to include on the special verdict sheet a question specifically addressing the assumption of the risk defense. Petitioner contends that by denying the requested question, the trial court prevented the jury from considering whether Respondent assumed the risk of her injuries and committed reversible error. We hold that under the facts of this case: (1) the intermediate appellate court was incorrect in concluding that assumption of the risk and contributory negligence were “substantially the same question;” (2) the verdict sheet, as written, would cause confusion over which defenses to consider and mislead a reasonable juror to fail to consider the defense of assumption of the risk; (3) failing to adequately present assumption of the risk constituted error because Petitioner had a right to present the defense to the jury; and (4) that error prejudiced Petitioner’s case.
Facts and Procedural History
On June 21, 2007, Elaine W. Jackson (“Respondent”) entered a gas station owned and operated by S & S Oil, Inc. (“Petitioner”). The gas station, located at 9105 Annapolis Road, Lanham, Maryland, was in the process of being renovated. The process included renovating the flooring near the soda machine in the store portion of the building.
Around five-o’clock in the evening, Respondent and her granddaughter drove to
When Respondent returned to her car, her granddaughter asked for a soda. Respondent agreed to buy one for her, and walked back into the building to locate the soda machine. When Respondent saw the machine, she walked toward it. During her walk, Respondent mis-stepped onto uneven ground. She did not fall, but she testified that her “foot twisted [her] knee” resulting in injury to her right knee and lower back. Respondent made several visits to doctors and had outpatient surgery on her right knee.
In 2008, Respondent filed a negligence suit against Petitioner in the Circuit Court for Prince George’s County. During the trial, Respondent testified that she was not looking at the floor during her walk to the soda machine as she had just been inside the station store and therefore “trusted [her] environment.” She stated that after her injury she could see that the area was un-level, “sloped,” and “lumpy.” There was evidence, however, in the form of testimony from the station owner, that there was orange or red caution tape across part of the construction area and a “Watch Your Step” sign somewhere in the immediate vicinity of Respondent’s injuries. Respondent testified that she did not see the caution tape, the warning sign, or any dangerous condition, and that she had assumed that the floor surface was level.
At the close of the three-day trial, the trial judge required the jury to return its verdict by answering a series of questions on a special verdict sheet. Additionally, the trial judge provided the jury -with a series of oral instructions. Earlier, Petitioner had requested that the trial judge instruct the jury on assumption of the risk pursuant to Maryland Pattern Jury Instruction 19:13. Respondent’s counsel objected to the instructions, asserting that there was no evidence that Respondent had assumed the risk of her injury. The trial judge overruled the objection and noted that, “that’s going to be the issue [for the jury].” At the close of the trial, the judge gave oral instructions to the jury as to the doctrine, stating specifically:
A plaintiff cannot recover if the plaintiff has assumed the risk of her injury, I guess. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger, or reasonably should have known and understood the risk of an existing danger and voluntarily chooses to encounter the risk.1
1. Was Defendant S & S Oil, Inc. negligent with regard to the incident of June, 21, 2007?
2. Was Defendant’s negligence a cause of injury to Plaintiff Elaine Jackson?
3. Did Plaintiff Elaine Jackson assume the risk of her injury, or was she contributorily negligent, in the incident of June [21], 2007?
4. Was Plaintiffs negligence or contributory negligence a cause of her injury?
After reviewing the contemplated verdict sheet, Petitioner objected to question three as proposed, arguing that the question should be separated into two questions, one for each affirmative defense. The trial judge responded by striking the reference to assumption of the risk altogether, reasoning that:
[Assumption of risk is a form of negligence ... [Assumption of [the] risk is part of contrib[utory negligence] or negligence. So it’s covered and it — in other words, assumption of the risk is negligence on the part of the Plaintiff____ [I]f the question says negligent or contributorily negligent, it covers assumption of risk and contrib[utory negligence].
Thus, the third question placed on the verdict sheet read: “Was Plaintiff Elaine Jackson negligent or contributorily negligent, in the incident of June [21], 2007?”
The jury returned a verdict in favor of Respondent, finding that Petitioner was negligent and that its negligence caused Respondent’s injuries. As to question three, the jury found that Respondent was not “negligent or contributorily negligent” under the circumstances. The jury awarded Respondent $12,416.41 for past medical expenses and $131,000.00 in non-economic damages, for a total award of $143,416.41. The trial court entered judgment in favor of Respondent.
Following unsuccessful post-trial motions, Petitioner appealed the judgment to the Court of Special Appeals. Petitioner argued that the trial judge committed error in both admitting evidence of certain medical bills
We issued a writ of certiorari in this case,
Whether a trial court may instruct a jury on the separate and distinct affirmative defenses of contributory negligence and assumption of the risk, yet only include a specific question on the verdict sheet as to contributory negligence, thus taking assumption of the risk away from the province of the jury and finding as a matter of law that assumption of the risk is included in the contributory negligence defense.
Standard of Review
We review the trial judge’s decisions with respect to the jury instructions given in this case under the abuse of discretion standard. We have previously held that “the decision to use a particular verdict sheet ‘will not be reversed absent abuse of discretion.’ ” Consol. Waste Indus. v. Standard Equip. Co.,
Under the abuse of discretion standard, this Court will overturn a trial judge’s decision to use a particular verdict sheet if we find both that the trial judge committed an error and that the error prejudiced Petitioner’s case. See Consol. Waste Indus.,
Analysis
The trial judge committed reversible error in this case by preventing the jury from considering the defense of assumption of the risk. The Court of Special Appeals erred when it upheld the trial court’s judgment based on an incorrect determination that the defenses of contributory negligence and assumption of the risk presented the “same substantial question.” In this case, Petitioner requested a jury instruction directing the jury to consider assumption of the risk. As requested, the trial judge gave an oral instruction on the defense. The trial judge, however, refused Petitioner’s request to put a specific question on the verdict sheet specifically asking the jurors to consider assumption of the risk. The trial judge refused Petitioner’s request because the judge determined that assumption of the risk was included in the contributory negligence defense. It was error for the Court of Special Appeals to conclude that the issues of contributory negligence and assumption of the risk overlapped and that it was proper to ask only about contributory negligence.
The task before this Court is two-fold. First, we will address the Court of Special Appeals’s and the trial judge’s incorrect conclusion that, in this case, assumption of the risk was the same as or was included in the defense of contributory negligence. Then, we will discuss how the effect of this incorrect conclusion prejudiced Petitioner.
The Maryland Rules of Civil Procedure indicate that the trial court “need not grant a requested [jury] instruction if the matter is fairly covered by the instructions actually given.” Md. Rule 2-520(c). We have previously stated:
In framing issues to be submitted for determination by a court of law, sitting either with or without a jury, the objective is to draft issues that are simple, concise and couched in plain and easily understood terms. It is also desirable that tedious duplicity be avoided by eliminating overlapping issues ... In our opinion, the correct rule to be observed, and the one which will best subserve the purpose of justice, is to grant no more than one issue presenting the same substantial question, and secondly, not to multiply the issues unnecessarily, and to grant such only as distinctly present the real questions in dispute.
Kruszewski v. Holz,
Assumption of the risk and contributory negligence are separate and distinct defenses. See Poole,
Our cases have shown that the two defenses completely overlap and should be presented as one defense when the risk allegedly assumed is unreasonable:
As noted previously by this Court, assumption of the risk and contributory negligence are closely related and often overlapping defenses and, the same conduct of a plaintiff can amount to both assumption of the risk and contributory negligence. Indeed, the overlap between assumption of the risk and contributory negligence is a complete one where the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable. When the overlap occurs, a discussion of contributory negligence may necessarily include assumption of the risk and the bar to recovery is two-pronged: 1) because the plaintiff assumed the risk of injury and 2) because the plaintiff was contributorily negligent. Conversely, the facts may warrant conflicting results under the theories, for example, a plaintiff who proceeds reasonably, and with caution, after voluntarily accepting a risk, not unreasonable in itself, may not be guilty of contributory negligence, but may have assumed the risk.
Thomas,
Whether an action is negligent or a risk is unreasonable is generally a decision for the trier of fact. The trial court should rule that a risk is unreasonable as a matter of law only when reasonable jurors would not differ as to that conclusion. See Sanner v. Guard,
The danger Respondent allegedly assumed walking in an area where there were renovations being done is not an extreme danger akin to entering a burning building. While it is unreasonable to conclude that the minor interest of saving one’s hat is in proportion with the danger of serious injury assumed from going into a burning building, reasonable minds might conclude that walking where there are renovations on the floor is not out of proportion with Respondent’s interest in obtaining a soda for her granddaughter. Therefore, the risk Respondent allegedly assumed in this case was not unreasonable as a matter of law, and the jury might have determined that Respondent assumed the risk without necessarily finding that Respondent was contributorily negligent.
Because determining that Respondent assumed the risk of her injuries did not necessarily require the jury to find that Respondent was contributorily negligent,
B. Based on the incorrect conclusion that assumption of the risk is “part of contributory negligence,” the trial court misled the jury and took the determination of whether Respondent assumed the risk of her injuries away from the jurors.
This Court is not persuaded that the jury in this case was given an opportunity to consider the defense of assumption of the risk. Reviewing courts are “strictly limit[ed]” in the “ability to inquire, post-verdict, into ‘the sworn juror’s mental processes in connection with the verdict.’ ” Barksdale v. Wilkowsky,
Maryland Rule 2-522(c), which governs the use of special verdicts, indicates that when a trial court requires a jury to make written findings, “[t]he court shall instruct the jury as may be necessary to enable it to make its findings upon each issue.” Petitioner sought to present both the affirmative defenses of assumption of the risk and contributory negligence. The trial judge gave separate oral instructions directing the jurors that Petitioner should not be held liable if Respondent was contributorily negligent and Petitioner should not be held liable if Respondent assumed the risk of her injuries. Nevertheless, when the trial judge altered the verdict sheet and removed any explicit reference to assumption of the risk, the trial court nullified the effect of the separate oral instructions and created confusion.
The verdict sheet that was proposed initially asked the jurors to determine whether Respondent “assume[d] the risk of her injury, or was she contributorily negligent, in the incident of June [21], 2007?” When the trial judge changed the language to ask only whether Respondent was negligent or contributorily negligent, Petitioner requested that there be a separate question that specifically addressed whether plaintiff assumed the risk of her injuries. The trial judge denied the request reasoning that assumption of the risk was part of contributory negligence or negligence and “if the question says negligent or contributorily negligent, it covers assumption of risk and contributory negligence].” As noted above, under the facts of this case, the jury should have considered the two
When the trial judge gave oral instructions to the jury on how to reach a verdict, she instructed the jury, “[i]n this case, it will be your duty to return your verdict in the form of written answers to the written questions, which are submitted to you by the [trial court]. It is your duty to answer each of these questions in accordance with the evidence in the case.” Essentially, the trial judge instructed the jurors to reach a verdict by considering four questions that addressed: (1) whether Petitioner was negligent; (2) whether Petitioner’s negligence caused Respondent’s injuries; (3) whether Respondent was contributorily negligent; and (4) whether Respondent’s contributory negligence caused her own injuries.
Additionally, the trial judge gave oral instructions directing the jurors that “you each have a copy of the verdict sheet which is for your use during deliberations. You do not have to write on it. If you wish to, you may. It’s just for your use during your deliberations.” The jurors were instructed that when they were deliberating on the facts of the case, they should use the verdict sheet as a guide. The verdict sheet made no mention of assumption of the risk. We presume that the jurors followed the trial judge’s directions in this regard. Thus, the jurors, with the verdict sheet in front of them as a guide, were instructed to reach a verdict by submitting written answers to written questions, none of which mentioned assumption of the risk.
There is a suggestion that, despite the trial judge’s decision to refuse to put a question on the verdict sheet that asked specifically about assumption of the risk, a particular juror might have considered the defense nevertheless. It is possible that a juror might have remembered the trial judge’s oral instructions that “[a] plaintiff cannot recover if the plaintiff has assumed the risk of her injury....” Additionally, in approving the trial judge’s decision, the Court of Special Appeals implied that by giving a further instruction the trial judge cured any inability of the jury to consider the assumption of the risk defense. The further instruction was that the trial judge informed the jury that “the instructions I’ve given you about premises liability, negligence, foreseeable circumstances, contributory negligence, and assumption of the risk, are the instructions that go into the first and third questions [on the verdict sheet].” The third question on the verdict sheet was about contributory negligence. It is possible that if a particular juror remembered all five issues that the judge instructed him or her to consider when deliberating on contributory negligence, that juror might have considered assumption of the risk. We are not persuaded, however, that this instruction was effective to cure the trial judge’s failure to provide the jury with an opportunity to specifically address assumption of the risk. Premises liability, negligence, foreseeable circumstances, and contributory negligence are all aspects of contributory negligence. Assumption of the risk is a distinct defense. Grouping it in with issues that all are aspects of contributory negligence in a question that only asks about contributory negligence undermines a reasonable juror’s ability to properly consider assumption of the risk on its own merits. In the very least, it would cause confusion in the mind of a reasonable juror whether to consider the defense of assumption of the risk.
First, the oral instructions themselves likely created confusion over which defenses to consider. The trial judge issued oral instructions that presented assumption of the risk and contributory negligence as two distinct defenses, and then moments later incorrectly instructed the jurors that assumption of the risk “go[es] into” the determination of contributory negligence. This would confuse a reasonable juror as to whether the juror should consider separately the defense of assumption of the risk. This confusion was compounded by the jury being instructed to consider assumption of the risk and then being instructed to reach a verdict by answering questions on a verdict sheet that did not give the jurors an opportunity to explicitly rule on the defense.
Second, even if the jury instructions did not cause confusion in the minds of the jurors, the trial judge’s decision to refuse to include a question specifically addressing assumption of the risk would cause a reasonable juror to fail to consider the defense. Instructing the jury to reach a verdict by answering a series of questions, none of which addressed assumption of the risk, would divert a reasonable juror’s attention away from considering that defense.
In Collins, the widow of an Amtrak employee brought a lawsuit, pursuant to the Federal Employers’ Liability Act (“FELA”), against Amtrak alleging that Amtrak’s negligence caused the death of her husband. The deceased worker was electrocuted while taking alignment readings of an overhead electrical wire on a span of railroad. The FELA expressly bars the use of an assumption of the risk
C. It was an error to take consideration of assumption of the risk away from the jury.
Where a jury instruction would cause a reasonable juror to fail to consider a defense that should have been considered, we have found error. See Consol. Waste Indus.,
Parties have a right to have their theory of the case presented to the jury if (1) the theory is a correct statement of the law, (2) the theory is supported by the facts of the case, and (3) the substance of the requested instruction is not fairly covered by the instructions actually given. See Wietzke v. Chesapeake Conf. Ass’n,
The first factor, whether Petitioner sought a correct statement of the law, is not at issue. This case came before this Court because Petitioner claims that by refusing to ask specifically about assumption of the risk on the verdict sheet, the issue was not presented to the jury. No party has argued that Petitioner sought an incorrect statement of the law.
We have already addressed the third factor. We have concluded that assumption of the risk was not adequately covered when the trial judge omitted the defense on the verdict sheet. As we indicate above, under the facts of this case, assumption of the risk is distinct from contributory negligence and, taken together, the oral instructions and the verdict sheet would lead a reasonable juror to fail to consider assumption of the risk.
The remaining factor is whether the facts in this case supported presenting the defense of assumption of the risk to the jury. Because we conclude that the facts support jury consideration of the defense, an error was committed by the trial judge in nullifying the jury’s consideration of the defense.
Respondent contends there is no evidence presented that she assumed the risk of her injuries.
“In Maryland, it is well settled that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” ADM P’ship v. Martin,
Respondent argues that the jury would not have concluded that she assumed the risk of her injury because during trial she testified that she did not see any dangerous area. Respondent’s claim that she did not know of or appreciate the risk is not dispositive. When there is evidence of a risk, like the caution tape and warning sign in the present case,
At this point, we need to address and remedy an apparent confusion as expressed in the arguments of both parties. As we held in both Poole v. Coakley & Williams Constr., Inc., 423 Md. 91,
When a trial judge determines that a risk is so obvious that all reasonable minds would determine that the plaintiff, herself, must have had actual knowledge and understanding of the risk, it would be appropriate for the trial judge to rule as a matter of law that the plaintiff assumed the risk. See Thomas,
When it is unclear that the plaintiff knew of the risk, but there is evidence that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the trier of fact. See Restatement (Second) of Torts § 496D cmt. d (stating that “[tjhere are some risks as to which no adult will be believed if he says that he did not know or understand them”); Restatement (Second) of Torts § 496D cmt. e (stating “[w]hether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable [people] could not differ as to the conclusion.”). The jury might conclude that the plaintiff must have actually known and understood the risk and voluntarily assumed it. This Court has quoted Prosser and Keeton on The Law of Torts with approval in stating:
At the same time, it is evident that a purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said[ ] in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not always differ greatly from that of the reasonable person. Thus,the plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. There are some things ... which are so far a matter of common knowledge in the community, that in the absence of some satisfactory explanation a denial of such knowledge simply is not to be believed.
Poole,
D. The trial judge’s error prejudiced the outcome of the trial.
As we noted above, this Court will reverse the judgement of a trial court if an error prejudiced Petitioner’s case. In the current case, the error involved the incomplete verdict sheet, which, in effect, prevented the jury from considering assumption of the risk. Petitioner was found liable for Respondent’s injuries. If the jury determined that Respondent assumed the risk of her injuries, it would have completely absolved Petitioner from liability. See Am. Powerlifting Ass’n v. Cotillo,
Even if this Court cannot say definitively that the error prejudiced the jury’s verdict, we cannot rule out the possibility
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR A NEW TRIAL. RESPONDENT TO PAY THE COSTS.
Notes
. In her oral jury instructions, the trial judge read verbatim from the Maryland Civil Pattern Jury Instructions' proposed instruction for assumption of the risk. MPJI-Cv. 19:13 (2009). When she read the instruction, the trial judge did not have the benefit of this Court’s decisions in Poole v. Coakley & Williams Constr., Inc.,
. Both parties have indicated that Respondent's injury occurred on June 21, 2007. The verdict sheet, however, incorrectly indicates in question three that the incident happened on June 1, 2007.
. This issue was not presented in the petition for certiorari, and, therefore, we do not address the issue.
. The Court of Special Appeals relied on its own decision in Baltimore Gas & Electric Co. v. Flippo,
. Respondent argues to this Court that the Court of Special Appeals’ decision in Fraidin v. Weitzman,
. Because FELA is a comparative negligence statute, a finding of contributory negligence would reduce, but not necessarily eliminate, the defendant's liability. Collins,
. Generally, we have considered the question of whether a trial judge committed error by denying a parly an opportunity to present its theory of the case in the context of erroneous jury instructions. While the current case involves the questions presented on a verdict sheet, the same standard applies in this case. Questions asked on a verdict sheet serve the same purpose as jury instructions; they are designed to instruct the jurors on how to deliberate and what issues to consider in reaching a verdict. Compare Chambers v. State,
. Based on Respondent’s incorrect argument that there is no evidence that she had actual knowledge of the risk assumed by walking where she was injured, Respondent argues that the defense of assumption of the risk in this case would only apply if the jury determined that Respondent should have known of the risk. As we indicate below, first, assumption of the risk does not apply when the plaintiff should have known of the risk, it applies when the plaintiff actually knew or must have known of the risk, and second, there is sufficient evidence for the jury to consider assumption of the risk based on what a reasonable juror might have concluded on the basis of the evidence in the record.
. Respondent highlights in her brief to this Court that in Rogers v. Frush,
. Respondent argues to this Court that the red tape was not in a position where it would serve as a "proper warning for the Respondent.” Whether Respondent was warned of danger by the tape is a question for the jury to resolve.
. There is a dispute between the parties over whether evidence of a yellow cone was admitted at trial. Based on our review of the transcript of the trial, it is not clear whether evidence and references to the yellow cone were admitted into evidence. Deciding this dispute, however, is unnecessary because, whether evidence of the cone was admitted, the evidence of the red warning tape and a warning sign notifying patrons of the danger of walking where there was construction constitute sufficient evidence to submit the issue of assumption of risk to the jury-
. In an argument to this Court that there was no evidence that Respondent assumed the risk of her injuries, Respondent contends that the trial judge said, "I don’t think you have a — I think you have not an open and obvious danger. I think you've got an uneven surface. I think you’ve got tape and warning that beyond — but you’ve — but you didn’t rope off the [Cjoke machine. As long as you didn’t rope off the [Cjoke machine, it is clear and obvious that a customer is going to want to go to that [Cjoke machine and you haven’t barred them from doing that. And if the area that — where the tape was, is on the other side of where she went, okay? In other words, the part that was uneven is between the tape and the [Cjoke machine. There was nothing to prevent her from going there.” The context of this statement was that the parties were discussing with the judge proposed jury instructions about the duty a shop owner owes to invitees. The judge noted that the duty to protect invitees against known dangers is not owed to an invitee who "fails to take reasonable care to avoid open and obvious dangers.” The judge determined that because the area immediately around the soda machine was not roped off in a way to prevent patrons from reaching the machine, the danger was not so obvious that it released the owner from a duty to make the area safe to all patrons. The trial judge’s ruling that the danger was not so obvious that the Petitioner was relieved from the duty to make the area safe to customers does not prevent the juty from finding that Respondent assumed the risk. Based on the caution tape and warning sign, the jury might conclude that Respondent knowingly assumed the risk of her injuries, even if the risk was not so obvious that Petitioner had no duty to make the area safe.
. Respondent argues in her brief to this Court that in Poole, we noted that “what the injured party ‘should have known’ is an issue.” This is a gross mis-characterization of our holding. The only references in the Poole decision to what a plaintiff "should have known” is either noting that the standard does not apply in an assumption of the risk analysis,
. Primarily, these cases address trial judges ruling on assumption of the risk as a matter of law. In that situation, the trial judge determines the issue if all reasonable minds would find that the plaintiff assumed the risk of injury. Where reasonable minds might disagree, the issue is for the trier of fact. Thomas,
. Respondent argues to this Court that the Court of Special Appeals in Pfaff v. Yacht Basin Co., 58 Md.App. 348, 355,
. In her brief to this Court, Respondent relies on a Court of Special Appeals decision, Diffendal v. Kash and Karry Service Corp.,
. Petitioner argues in its reply brief to this Court that "[t]he jury could have found that the warning signs were there and that the Plaintiff should have comprehended the obvious risks.” If the jury found that Respondent should have comprehended the risks, however, that finding would not give rise to a verdict that Respondent assumed the risk of her injuries. If the jury found that the warning signs were there and that Respondent did or must have comprehended the risks, the jury might have determined that Respondent assumed the risk of her injuries.