Pеtitioner, Mary Thomas, filed a negligence action in the Circuit Court for Prince George’s County against the owner of her apartment complex, Foxfire Associates Limited Partnership d/b/a Foxfire Apartments, and the apartment management company, Panco Management of Maryland, LLC (collec tively Respondents). Petitioner’s personal injury claim stems from a slip and fall incident on “black ice” 1 that occurred on the premises of the apartment complex. Respondents filed, and the court granted, a motion for judgment at the end of Petitioner’s case based on Petitioner’s alleged assumption of the risk. Based on the record before us, we cannot say, as a matter of law, that Petitioner assumed the risk of slipping and falling on black ice when she exited her apartment building. Therefore, we shall hold that the trial judge erred by failing to submit the issue of assumption of the risk to the jury for resolution.
FACTS AND PROCEDURAL HISTORY
On February 21, 2007, Petitioner lived in the Foxfire Apartments complex in Laurel, Maryland, with her daughter and granddaughter. Petitioner had resided in her apartment since 1998. The evidence producеd at trial showed that the primary means of egress from the apartment complex to the parking lot where Petitioner kept her car was a central, covered flight of stairs, followed by four additional stairs that led to a sidewalk. There was also a separate, back exit from the central stairway that led to an “unpaved, dirt area.”
Petitioner testified that the front of her apartment complex did not get much direct sunlight. Consequently, in the winter months snow and ice would melt more slowly than in other locations. Petitioner also stated that she knew that when snow and ice melted, the sidewalk would become wet and that icy conditions could develop in freezing temperatures.
At approximately 8:30 a.m. on the morning of the injury, Petitioner left her apartment to go to work. Petitioner walked down the steps of the primary exit and over the sidewalk to the parking lot, where she noticed some patches of ice and snow. When she arrived at her vehicle, she had to hold onto it for support due to the surrounding conditions. When Petitioner returned from work between 2:30 and 3:00 p.m., the temperature had “warmed up” and she noticed that the ice and snow had melted but that the sidewalks were wet.
Petitioner left her apartment again at approximately 6:00 p.m. on the evening of the accident to drop off her granddaughter at a youth group meeting at a nearby church. Petitioner returned home at approximately 6:15 p.m. When she arrived home, Petitioner again noticed that the sidewalk in front of her apartment was wet, but she saw no sign of salt or melting pellets on the sidewalk or walkway. At approximately 8:00 p.m., Petitioner left her apartment to pick up her granddaughter
At the conclusion of Petitioner’s presentation of her case, Respondents moved for judgement, asserting the defenses of contributory negligence and assumption of the risk. While the trial judge denied the motion as to contributory negligence, he granted the motion for judgment on the grounds that Petitioner had assumed the risk of her injury as a matter of law.
2
Noting that the Court of Special Appeals had decided
Allen v. Marriott Worldwide Corp.,
The Court of Special Appeals affirmed.
Thomas v. Panco Mgmt. of Md., LLC,
I.
We review the trial court’s grant of Respondents’ motion for judgment
de novo,
considering the evidence and
reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.
See
Md. Rule 2-519;
C & M Builders, LLC v. Strub,
Thus, the grant of Respondents’ motion for judgment based on assumption of the risk was appropriate only if all evidence and reasonable evidentiary inferences, viewed in a light most favorable to Petitioner, could have led only to the conclusion that she assumed the risk of her injuries.
C & M Builders,
II.
In Maryland, there are three requirements that a defendant must prove to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger.
ADM P’ship,
In Allen, the Court of Special Appeals affirmed the trial judge’s grant of summary judgment in favor of the defendant, Marriott Corporation, on the ground that one of its guests, Mr. David Allen, had assumed the risk of slipping and falling on black ice while walking across the parking lot from the entrance of the hotel to his wife’s car. Allen,183 Md.App. at 462, 478-80 ,961 A.2d at 1142, 1151-52 .
Notwithstanding the fact that black ice is, by its nature, invisible or difficult to see, the Allen court stated that “the path to knowledge is not limited to the sense of sight alone.... Knowledge springs not only from direct sense perception but from the drawing of inferences from circumstantial evidence. Induction is as worthy a highway to knowledge as is sensation.” Allen,183 Md.App. at 473 ,961 A.2d at 1149 . The court concluded that because the plaintiff had testified that he observed visible ice and snow in the vicinity prior to his slip and fall and “acknowledged his general familiarity with the phenomenon of black ice” that “when the bits and pieces of information about the appellant’s awareness of risk came together, they were enough, objectively, to achieve critical mass” and so “[t]he question was properly one of law for the court to decide on summary judgment.” Allen,183 Md.App. at 476, 478-79 ,961 A.2d at 1150-51 . The Allen court bolstered its holding with the following reasoning, in which we also find error:
To assume a risk as a matter of law, a plaintiff, objectively speaking, must have reason to know of the risk. In a case such as this, the risk is that of slipping on ice. The required knowledge is not knowledge that ice is actually present. It is the appreciation of the reasonable likelihood that, under the weather conditions and other circumstances, ice might well be present. The assumed risk is not that of stepping on ice per se. The assumed risk is that of stepping onto an unknown surface with an awareness that it might well be icy. With white ice, you see it is there. With black ice, you infer the likelihood that it may be there. Either establishes the element of awareness.
Poole v. Coakley & Williams Constr., Inc.,
I find this is almost exactly the Allen case. The test as set forth in the Allen decision is [that] a plaintiff objectively speaking must have reason to know of the risk. In a case such as this, the risk is that of slipping on ice. The required knowledge is not knowledge that ice is actually present, which is what we all were talking about prior to yesterday, but it is the appreciation of the reasonable likelihood that under the weatherconditions and other circumstances, ice might well be present.
The assumed risk is not that of stepping on ice, per se. The assumed risk is of stepping onto an unknown surface with an awareness that it might well be icy. With white ice, you see it there. With black ice, you infer the likelihood that it may be there. Either establishes the element of awareness.
So, I do find that as a matter of law, she was or should have been aware of the risk, that she appreciated it because she said she was familiar with it, and that she voluntarily assumed that risk by undertaking to cross it that day.
On review, the intermediate appellate court similarly found
Allen
to be apposite in the present case. It stated: “We agree with [the trial judge] that the uncontradicted first-level facts developed in this case objectively showed that [Mary] Thomas, like David Allen, had at the time of her fall, knowledge of the risk that she might be stepping down upon ice and that a reasonable person in her position would have appreciated the danger of that action.”
Thomas,
It was error for the trial court to rule, as a matter of law, that Petitioner had knowledge of the risk for the same reasons we explained in Poole, namely that the Allen case expanded the knowledge prong of the assumption of the risk test to permit the trial judge to impute knowledge under circumstances where the risk of danger may not have been fully known to and understood by the plaintiff. Thus, we restate our reasoning in Poole at length because of its applicability to the present case:
Allen expands the knowledge prong of the assumption of the risk test to permit the trial judge to impute knowledge under circumstances where the risk of danger may not have been fully known to and understood by the plaintiff, thereby enlarging the category of cases in which a court may impute knowledge to a plaintiff as a matter of law.
As explained, supra, “the doctrine of assumption of 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.” Schroyer,323 Md. at 283 ,592 A.2d at 1123 (emphasis added). When it is clear, however, “that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Id. Thus, in order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, we require that a 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.” See Kasten Constr. Co. v. Evans,260 Md. 536 , 544-45,273 A.2d 90 , 94 (holding that even though defendant argued that plaintiff, a utility linesman, “should have known” of the danger involved in climbing a utility pole, the issue was properly one for the jury because there were no signs of structural instability, and his knowledge of the danger was not clear and undisputed); cf. McClearn [v. Southeast Concrete Co.], 253 Md. [135] at 139, 251 A.2d [896] at 899 (stating that plaintiff was experienced in the cement finishing business, and therefore “certainly must have been aware” of the danger of directing the driver in the process of backing up a cement truck) (emphasis added); see also Martin v. Heddinger,373 N.W.2d 486 , 490 (Iowa 1985) (“[Assumption of risk is a matter of whether the plaintiffknew of the risk, not whether the plaintiff should have known of it.”).
The Allen court’s formulation diminishes the requirement that a plaintiff actually and fully know and understand the risk he or she is confronting and proposes that a plaintiff may be judicially charged with knowledge in a circumstance where he or she should infer the existence of a dangerous condition.
Maryland jurisprudence, however, directs that courts may only impute knowledge to the plaintiff, as a matter of law, when there is undisputed evidence of awareness, e.g., physical interaction with or sensory perception of the dangerous condition in the case of Schroyer, ADM P’ship, or Morgan State; the risk of danger is so obvious that any person of normal intelligence will be taken to comprehend it, as in Gibson or C & M; or the risk is an usual and foreseeable consequence of the plaintiffs conduct, as in Cotillo.
Beyond these circumstances, we have held that “[wjhere there is a dispute whether the risk is assumed or not, that question is usually left to the jury[,]” Bull S.S. Lines [v. Fisher ], 196 Md. [519] at 526, 77 A.2d [142] at 146, because the role of the fact finder is to assess the credibility of the evidence and to draw a conclusion from among the inferences which may be reasonably drawn from that evidence. See American Law of Torts, § 12:53, at 433 (“Only where reasonable men could not differ as to the conclusion to be reached, the court itself may determine the issue.”)
In Allen, the рlaintiff testified that he had crossed the parking lot without incident after the snowfall but prior to his slip and fall. Also, while he observed visible ice and snow piled against the curb of the parking lot, he had not seen any in the area of the lot on which he stepped, and did not see the ice upon which he fell. The intermediate appellate court aptly defined “black ice,” and described the “meaningful contrast” between “white ice” and “black ice,” as “between essentially visible ice and essentially invisible ice.”183 Md.App. at 469-470 ,961 A.2d at 1146-47 . Whereas the Allen court did not find the invisibility of the black ice to be a significant factor in withholding judicial imputation of knowledge to the plaintiff, this Court does.183 Md.App. at 472-73 ,961 A.2d at 1148-49 . "While, indeed, “the path to knowledge is not limited to the sense of sight alone,” it is not for the courts, as a matter of law, to determine that although a danger was, by its nature, imperceptible by direct sensation, “inferences from circumstantial evidence” were drawn by a particular plaintiff. Allen,183 Md.App. at 473 ,961 A.2d at 1149 . The Allen court’s statement that the requisite knowledge at the time of injury is not knowledge that ice is actually present, but, rather, “the appreciation of the reasonаble likelihood that, under the ... circumstances ice might well be present” negates the legal truism that assumption of the risk “rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.” Crews,358 Md. at 640-41 ,751 A.2d at 488 (internal quotations omitted) (emphasis added). Thus, it was error to find, as a matter of law, that the plaintiff in Allen had knowledge of the risk of slipping on black ice when the evidence showed only an “awareness that it might” exist and an inference could have been drawn that it “may be there.” Allen,183 Md.App. at 479-80 ,961 A.2d at 1152 . Rather, for a court to impute knowledge as a matterof law, the evidence and all permissible inferences must make clear that the plaintiff had full, actual, and subjective knowledge of the risk or that “a person of normal intelligence in the position of the plaintiff must have understood the danger.” See Schroyer, 323 Md. at 283-84 ,592 A.2d at 1123 (emphasis added). In the absence of this level of proof, any determinations as to “bits and pieces of information” required to achieve a “criti cal mass” sufficient to impute knowledge to a plaintiff, is a puzzle properly put together by the jury.
In the instant case, there were factual issues creating a jury question as to Petitioner’s knowledge of the risk of slipping on black ice. In ruling on the knowledge prong, the trial judge found the following:
In this case, there is no dispute about the underlying facts ... that the sidewalk was wet. It was observed to be wet and known to be wet by the plaintiff on the four other occasions that she traversed it that day. [A]nd ... that the weather was getting colder. She said she saw no salt or any evidence of any salting being done. And that she was aware, as were all of her neighbors, that water would collect in that area, melting snow made the sidewalks wet, and thus they all took due care being cautious and looking for ice. She didn’t see any sign of any maintenance activity that day, that evening. She wasn’t looking for salt, and she wasn’t looking for ice. And nonetheless, she did attempt to traverse that wet area and fell.
Contrary to the trial judge’s ruling, the facts do not point only to the conclusion that Petitioner assumed the risk of her injuries.
See C & M Builders,
Indeed, several of the facts relied upon by the trial court in the present case to grant judgment as a matter of law, including the fact that Petitioner did not see any maintenance activity or salt on the walkway, could lead just as easily to the inference that Petitioner did not have knowledge of the “essentially invisible” ice.
Allen,
III.
Petitioner also contends that the grant of Respondents’ motion for judgment was improper because she did not encounter the danger voluntarily, and thus did not assume the risk of her injuries. Relying on
Rountree v. Lerner Dev. Co., 52
Md.App. 281,
This Court in ADM P’ship, endorsed the principle announced by Prosser and relied upon by the intermediate appellate court in Rountree that:
[T]here can be no restriction on the plaintiffs freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because even where the plaintiff does nоt protest, the risk is not assumed where the conduct of the defendant has left [the plaintiff] no reasonable alternative. Where the defendant puts [the plaintiff] to a choice of evils, there is a species of duress, which destroys the idea of freedom of election.
ADM P’ship.,
The plaintiffs acceptance of the risk is to be regarded as voluntary even though he is acting under the compulsion of circumstances, not created by the tortious conduct of the defendant, which have left him no reasonable alternative. Where the defendant is under no independent duty to the plaintiff, and the plaintiff finds himself confronted by a choice of risks, or is driven by his own necessities to accept a danger, the situation is not to be charged against the defendant.
ADM P’ship.,
We recognize
Rountree
as an example of a landlord-tenant situation, where the plaintiff may have acted under the compulsion of circumstances “created by the tortious
In
Rountree,
the plaintiff, a tenant, slipped and fell on ice while leaving her apartment to go to work.
Rountree,
On appeal, the intermediate appellate court held that the plaintiffs knowledge of the danger,
ie.,
the risk of slipping on ice, was not dispositive because knowledge “is simply one of two limitations on the defense of assumption of risk----”
Rountree,
Thе second important limitation upon the defense of assumption of risk is that the plaintiff is not barred from recovery unless his choice is a free and voluntary one. There must first of all, of course, be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. It is not every deliberate encountering of a known danger which is reasonably to be interpreted as evidence of such consent.
Rountree,
While the
Rountree
court found that there was clear and decisive evidence of a “deliberate encountering of a known danger” by the plaintiff, it also pointed out that “the tenant had a right to egress from her apartment” and “a right to assume that the landlord would take all appropriate steps to make safe egress possible.”
Rountree,
Even where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him tо a choice of evils, there is a species of duress, which destroys all idea of freedom of election. Thus ... a tenant does not assume the risk of the landlord’s negligence in maintaining a common passageway when it is the only exit to the street. In general, the plaintiff is not required to surrender a valuable legal right, such as the use of his own property as he sees fit, merely because the defendant’s conduct has threatened him with harm if the right is exercised.... By placing him in the dilemma, the defendant has deprived him of his freedom of choice, and so cannot be heard to say that he has voluntarily assumed the risk.
In the case sub judice, the trial court erroneously concluded that Rountree was no longer good precedent, and erred when it decided that Petitioner voluntarily assumed the risk of her injury as a matter of law. The trial court stated:
I, frankly, don’t believe that this analysis by Judge Moylan in 1982 is the law in Maryland any longer. All of the cases that he cited in the Allen case, Schroyer, ADM Partnership, and Morgan State post-date Rountree [sic] by a great deal of time. I don’t believe that the voluntariness is this. I believe that taking Judge Moylan’s argument here really, in essence, does make the landlord the guarantor of any harm to the tenants, which is not the law in Maryland. 5
I don’t find that the mere fact that she was a tenant means that any otherwise voluntary acceptance of the risk or confrontation of the risk somehow becomes involuntary because of the tenant relationship.
There were alternatives, some of which were discussed here. And the alternative of not taking her granddaughter out for that event, and knowing that you’d have to pick her up againafter the tеmperature had dropped under those circumstances.
The intermediate appellate court also believed that our recent snow and ice cases implicitly overruled Rountree, explaining:
“[I]t does not appear that the Court of Appeals would presently completely endorse our holding in Rountree. It no longer can be said that the assumption of the risk doctrine is inapplicable simply because the plaintiff is provided with no alternative safe path to reach his or her destination. Nevertheless, we infer from Morgan State that for an act to be voluntary, the plaintiff must still have some safe alternative course of action — such as those suggested in Morgan State,397 Md. at 520 ,919 A.2d 21 . The safe alternative course of action, often, can simply be to refuse to take the risk.... In this case, although Thomas did not have an alternative safe path to her car, she did have a sale alternative course of action. One alternative course of action was to call the maintenance department at her apartment complex and ask them to put down salt or some other substance that would melt the ice.... Alternatively, as [the trial judge] suggested, she could have refused to take her granddaughter to the church.... ”
Thomas,
We disagree with the intermediate appellate and trial courts’ conclusion that
Rountree
is no longer good law. Insofar as it applies to a tenant’s right to a reasonably safe means of ingress and egress from his or her property,
Rountree
is consistent with our case law. The factual scenarios presented in our more recent snow and ice decisions, where we concluded that assumption of the risk was established as a matter of law, each occurred outside of the landlord-tenant relationship, and involved plaintiffs who were not coerced by the defendant into encountering the risk as they were either “confronted by a choice of risks” or “driven by [their] own necessities to accept [the] danger.”
ADM P’ship,
Our opinion in
Gibson v. Beaver,
The plaintiff takes a risk voluntarily ... where the dеfendant has a right to face him with the dilemma of ‘take it or leave it’ — in other words, where [the] defendant is under no duty to make the conditions of their association any safer than they appear to be. In such a case it does not matter that [the] plaintiff is coerced to assume the risk by some force not emanating from [the] defendant such as poverty, dearth of living quarters, or a sense of moral responsibility.
Gibson,
the plaintiff enters the land or uses the chattels of the defendant, or enters into some other relation with him, without any right or privilege to do so other than that derived from the defendant’s consent to the relation itself. ... [T]he defendant is under an initial duty of reasonable care ... but is relieved of this responsibility when the plaintiff, knowing of the danger, enters and accepts the risk.
In these cases, the plaintiffs are “driven by [their] own necessities to accept [the] danger,” and therefore “the situation is not to be charged against the defendant.”
ADM P’ship,
The defendant may be under a legal duty, which he is not free to refuse to perform, to exercise reasonable care for the plaintiffs safety, so that the plaintiff has a corresponding legal right to insist on that care. In such a case it is commonly said that the plaintiff does not assume the risk when he proceeds to make use of the defendant’s services or facilities, notwithstanding his knowledge of the danger.
Prosser & Keeton § 68, at 492 (noting that one cannot “set up assumption of risk” to defeat recovery by a plaintiff negligently barred from “premises upon which the plaintiff has a contractual right to enter,” and citing, inter alia, eases specifically dealing with tenants’ property rights).
Under the facts presented in this Court’s decision in
Lamy,
the plaintiff traveled to a grocery store two days after a snow storm, knew the condition of the premises, and nonetheless chose to step over packed snow while encumbered with bags of groceries.
Lamy,
ADM P’ship
involved a plaintiff who slipped and fell on a visibly icy walkway while making a delivery at a building owned by the defendants.
ADM P’ship,
(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
(2) The plaintiffs acceptance of a risk is not voluntary if the defendant’s tortious cоnduct has left him no reasonable alternative course of conduct in order to
(a) avert harm to himself or another, or
(b) exercise or protect a right or privilege of which the defendant has no right to deprive him.
ADM P’ship,
Similarly, in
Morgan State,
we held that the plaintiff who chose to visit her daughter at college after a snow storm voluntarily encountered the risk that she would slip and fаll while walking across the parking lot, despite her testimony that, because her daughter needed money, she had no alternative to encountering the danger.
Morgan State,
Further distinguishing
Rountree,
this Court noted in
Morgan State
that “the fact that [plaintiff] wanted to bring her daughter money for gas d[id] not render her actions involuntary.”
Morgan State,
In
Schroyer,
the plaintiff arrived at a hotel shortly after snow had fallen. She noted that the area in front of the main entrance to the hotel had been cleared of ice and snow, but saw that the rest of the parking lot had not. Despite this knowledge, she requested a hotel room closest to an exit so that she could easily carry her paperwork from her car to her room.
Schroyer,
We held that the plaintiff assumed the risk of her injuries as a matter of law because it was clear “on this record, that [plaintiff] took an informed chance. Fully aware of the danger posed by an ice and snow covered parking lot and sidewalk, she voluntarily chоse to park and traverse it, albeit
carefully,
for her own purposes,
i.e.,
her convenience in unloading her belongings.”
Schroyer,
As to the voluntariness of Petitioner’s conduct, we confirm that we did not overrule
Rountree
in our prior case law and have no reason to disavow its reasoning in this case. Thus, the trial and intermediate appellate court erred in inferring from the
post-Rountree
case law that a tenant assumes the risk of injury as a matter of law despite having no reasonably
safe path
to exit the apartment, as long as there is a reasonably safe alternative
course of action.
The intermediate ap
pellate court emphasized that a “safe alternative course of action, often, can simply be to refuse to take the risk.”
Thomas,
Thus, in the present case, it was error for the trial judge to determine, as a matter of law, that Petitioner voluntarily assumed the risk of her injuries. There was evidence presented at trial about a rear exit from the central stairway which led onto an “unpaved dirt area.” Petitioner’s expert witness, Mr. Dinoff, opined, however, that it was “clearly not a safe alternative way of getting out of [the] building,” apparently because it was not paved and not “reliably illuminated аt night.” Respondents did not attempt to demonstrate that the back exit was a reasonably safe alternative. The trial court granted Respondents’ motion for judgment based, not on the existence of an alternative exit, but instead, upon the existence of “alternatives” including “not taking her granddaughter out for that event,” and its interpretation that
Rountree
was “not the law in Maryland any longer.” Thus, given the evidence that there were at least two ways out of the building, the credibility of Mr. Dinoff s testimony about the relative safety of each path was an issue to be decided by the trier of fact.
Robinson v. State,
Further, in the present case, Respondents moved for judgment at the end of Petitioner’s case on the grounds of contributory negligence and assumption of the risk. While the trial judge granted the motion as to assumption of the risk, he denied it as to contributory negligence, concluding that Petitioner did not act unreasonably, as a matter of law. The judge stated: “I think that the alternatives and the reasonableness of her conduct under those circumstances is something that the jury can consider, could have considered, but for the ruling on assumption of the risk.”
The defense of assumption of the risk involves a “manifestation of consent to relieve the
defendant
of the obligation of reasonable conduct” towards the
Before the doctrine of contributory negligence can be successfully invoked, it must be demonstrated that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves. Stated another way, when one who knows and appreciates, or in the exercise of ordinary care should know and appreciate, the existence of danger from which injury might reasonably be anticipated, he must exercise ordinary care to avoid such injury; when by his voluntary acts or omissions he exposes himself to danger of which he has actual or imputed knowledge, he may be guilty of contributory negligence.
Menish v. Polinger Co.,
The jaywalker who dashes into the street in the middle of the block, in the path of a stream of cars driven in excess of the speed limit, certainly does not manifest cоnsent that they shall use no care and run him down. On the contrary, he is insisting that they shall take immediate precautions for his safety; and while this is certainly contributory negligence, it is not assumption of risk.
Rountree,
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.
Schroyer,
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.”
Schroyer,
Although the trial judge’s ruling on contributory negligence was correct, his ruling on assumption of the risk was incorrect as the issue of Petitioner’s assumption of the risk, including her knowledge of the risk of slipping on black ice, and the voluntariness of her conduct in using the front steps were questions of fact to be resolved by the jury, rather than by the trial judge as a matter of law. Therefore, on remand, the issues the jury will be required to resolve, assuming the jury finds that Respondents were negligent, are whether Petitioner was contributorily negligent and/or whether she assumed the risk of her own injuries when she tripped and fell on the black ice.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AND REMAND THE CASE TO THAT COURT FOR TRIAL. RESPONDENTS TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.
Notes
. As we recently noted in
Poole v. Coakley & Williams Constr., Inc.,
. As discussed,
infra,
the three requirements of the assumption of the risk defense are that the plaintiff: (l) 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,
. Maryland Rule 2-519 states, in pertinent part:
(b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.
. As discussed, infra, this is consistent with Prosser’s admonition that "where there is a reasonably safe alternative open, thе plaintiff's choice of the dangerous way is a free one, and may amount to both contributory negligence and assumption of risk.” Prosser, 4th ed. § 68, at 451-52.
. Contrary to the trial judge’s assertion in the present case,
Rountree
did not make a landlord a guarantor of any harm to tenants. It explained that "the tenant had a right to egress from her apartment” and "a right to assume that the landlord would take all appropriate steps to make safe egress possible.”
Rountree,
. Other jurisdictions have similarly noted the longstanding right of a tenant to safe egress from his or her apartment, and have refused to hold that a tenant assumed the risk of his or her injuries as a matter of law, merely by exercising this right.
See Robinson v. Belmont-Buckingham Holding Co.,