*1 A.2d730 et al. ADM PARTNERSHIP Tykenko MARTIN et al. Keen Term, 5, Sept. 1996. No. Appeals Maryland.

Court Nov. 1997. *3 brief), Ethridge, on (McCarthy, Wilson & Edward J. Brown Rockville, petitioners. for Grack, Fishman, K. Van Axelson (Jeremy

Bruce M. Bender brief), Rockville, P.C., for Williamowsky, respondents. on & ELDRIDGE, RODOWSKY, BELL, C.J., Argued before * CHASANOW, RAKER, JJ., and KARWACKI MURPHY, (retired), Assigned. Judge Specially ROBERT C. BELL, Judge. Chief “voluntariness” presents

The issue this case is whether the met assumption element of the of risk defense is when performing respon- encounters a known risk while employee but, nevertheless, on solely of her based sibility employment, subjective responsibili- that the failure to fulfill that belief consequences in adverse economic to her em- ty may result risk, herself, proceeds to confront the ployer ultimately bodily injury. shall sustaining, process, serious We in the affirmative. answer (Martin) Tykenko

In the sub Keen Martin judice, case (collectively, American Insurance the re Company, Motorist 1filed, Montgomery in the Coun- spondents) Circuit Court * Karwacki, J., retired, hearing participated this now in the case while Court; being pursuant an active member of this after recalled Constitution, IV, 3A, participated in decision Article Section he also *4 adoption opinion. and the of the Reprographics’ compensation American Motorists is Ideal worker’s 1. Reprographics, employer. insurer. Ideal Inc. is Martin's American Motorists, therefore, paid compensation Martin’s worker's benefits. As result, subrogated rights. rights it was to Martin's All and defenses applicable equally applicable to American Motorists. See to Martin are (1957, 9-902(a) Repl.Vol., Supp.) § Md.Code 1991 1997 of the Labor Article; Curtis, 160, 164, Employment 623 Erie Ins. Co. v. 330 Md. Co., 184, (1993); Md.App. Brodsky 186 Const. 30 A.2d Princemont Miles, (1976); 354 A.2d 440 Johnson v. 53 A.2d 30 (1947). ty, sounding negligence against Partnership, an action ADM MacDonald, general partners, Inc. and its three Scott L. Joe Adams, Duane, (collectively, and Franklin J. the petition C. ers), injuries slipped for Martin sustained when she and fell on walkway delivery an ice and snow covered as she made a at a At building petitioners the owned. the conclusion case, circuit court respondents’ granted petitioners’ the judgment judgment accordingly. motion for entered Viewing light the evidence in the most favorable to the respon dents, the court that conclusively found the evidence estab knowingly lished that assumed the risk Martin falling walkway on a covered with ice and snow. The that respondents appealed judgment Special Court Martin v. ADM Part which, in reported opinion, Appeals, Inc., (1995), nership, Md.App. reversed. This for writ of granted petitioners’ petition Court (1996). certiorari, 672 A.2d 659 For Md. the reasons herein, judgment set forth we shall reverse the of the Court of and affirm the circuit court. Special Appeals judgment

I. The facts are not in pertinent dispute. morning On 8, 1989, Martin, March as a employed delivery person Inc., Reprographics, reproduction company, Ideal a blueprint assigned to deliver to a business located blueprints Rockville, Street, Maryland, at 98 Church owned property Although it had snowed some nineteen petitioners. ceased, hours earlier and the had ice and precipitation snow parking directly surrounded the lot building, particularly walkway. in front of the and the entrance Martin building that testified at trial she observed that there was ice and unplowed surrounding building snow when she arrived at building, why walkways and that she wondered parking not been cleared. the condition of the lot and Despite walkway, the entrance Martin testified because she ob- lot, other vehicles in the served there were working inside the and that there were people building, were ice, suggesting in the snow and there was a footprints *5 building, to and from the she egress and ingress means safe building. Martin also safely enter the that she could felt she that, never told her that although employer her testified subject delivery, or job if did not make the could lose her she make, she believed assigned to other she was any deliveries As she blueprints. to deliver the had no choice but that she made, it, Reprographics not Ideal delivery if the saw contract, consequence with the delivery lost that could have terminated. could then have been employment that her her delivery, Martin exited blueprints for To retrieve the As she side. passenger around vehicle and started lot, but parking in the slipped on the ice Martin proceeded, of her vehicle. by grabbing hold falling ground avoided the ice walked across injury, without Martin Having recovered and delivered the further incident walkway covered without exiting building steps, retraced her She then blueprints. Martin building, As she left the using walkway. the same time, however, unlike the first This again slipped. once to her lower incident, injury sustained serious she fell and back. against petitioners alleged respondents’

The suit (1) in following respects: negligent were petitioners (2) walkway, failing to remove failing to maintain a safe walkway areas as parking and ice from the lot snow law, adequate failing provide local required by case-in-chief, the warning. respondents’ After the close Relying Schroyer on judgment. moved for petitioners (1991), McNeal, they argued that 592 A.2d 1119 falling on the ice and walking assumed the risk of Martin thus, walkway, requir- lot and entrance covered snow ground. on that entered their favor judgment be ing knowingly and denied that Martin respondents The answered out, in injuries. They pointed the risk of own assumed footprints indicating the snow regard, that Martin saw walkway. The safely traversed the people that other did not as- argued also that Martin respondents blueprints if the were risk because she believed sume the delivered, both she and her employer experi- would have enced consequences. adverse economic rejected

The trial court respondents’ arguments. Ap- *6 standard, objective observed, plying judge the trial “Every- body walking slippery. knows that on ice is The taking assumption risk—the of the risk is with that knowledge, it, because other have traversed people apparently, for the or for footprints, whatever reason assumes that I can do it if I walk carefully.” Additionally, the court found that Martin’s admission that she had icy walkways seen the and that she slipped had on the ice prior fall which she was injured indisputedly support finding that she was aware of conduct, the risk. Addressing the voluntariness of Martin’s the trial court concluded despite fear termination employer’s contract, of her loss of the delivery Martin decision, nevertheless made a calculated premised on the fact that others had safely traversed the ice and snow covered parking lot and walkway, entrance to take a chance and carefully walkway. walk across the

Reversing, the Court of Special Appeals held that petitioners were not to judgment entitled as a matter of law evidence, because the light viewed most favorable to the respondents, demonstrated an issue of fact for jury as to whether Martin injuries. assumed the risk of her Specifically, the court concluded that Martin’s belief that she would have negative repercussions suffered at her job had she failed to make the delivery presented as directed a factual dispute as to whether her voluntary.2 actions were

II. In Maryland, it is well settled that in order to risk, establish the of assumption defense the defendant did, however, appellate 2. The acknowledge intermediate court knowledge appreciation danger walking Martin had of and for the walkway. across an ice finding and snow covered lot and This and, therefore, challenged appeal parties has not been on this have argued neither briefed nor this issue.

91 (1) risk of knowledge of the plaintiff: must show (8) voluntarily risk; and appreciated danger; Potomac Edison v. Liscombe danger. the risk confronted Schroyer see also (1985); 630, Co., Md. 619, 495 A.2d 838 303 (1991); 1119, 1123 283, A.2d McNeal, 323 Md. 275, 592 v. 1235, 33, 43, A.2d 575 Lamy, 320 Md. Dev. Co. v. Odenton 635, A.2d 630, 284 263 Md. Mougin, v. Hooper (1990); 1239 Co., 253 Md. Concrete v. Southeast McClearn (1971); 236, 239 Beaver, v. Gibson (1969); 896, 138-39, 898-99 135, 251 A.2d Williams, (1967); Burke v. 273, 275 418, 421, 226 A.2d 245 Md. v. Evans Johns (1966); 187, 154, 158, 223 A.2d 244 Md. 591, 238-39, 593-94 Univ., 224 Md. 234, 167 A.2d Hopkins Co., 224 Md. 439, Rail & Const. v. Finkelstein Vulcan (1961); Nichols, 211 Md. Velte v. (1961); 393, 442, A.2d 394-95 Fisher, v. (1956); Bull Lines S.S. 544, 353, 356, 127 A.2d (1950); Warner 525-26, 146-47 196 Md. (1937). “The Markoe, 359-60, 189 A. *7 and an intentional upon risk rests of assumption of doctrine therefore, and, consent danger known to a voluntary exposure of an the defendant to relieve plaintiff of the part on take chances [her] and to [her] conduct toward obligation of Frush, 257 Md. Rogers risk.” particular from harm from a Keeton, (1970). See also W. Page 233, 243, A.2d 554 262 (5th Torts § at 490 on the Law 68 Prosser and Keeton of Keeton). of and ed.1984) (hereinafter Assumption Prosser may of an accident which incurring that “voluntary means risk be assuming may the risk occur, person and which the not 281, 592 Schroyer, 323 Md. at starting.” to avoid after careful established, a Thus, complete it functions as if A.2d at 1123. of the abandonment previous “it is a recovery to because bar Warner, at 171 Md. occurs.” if an accident complain to right 360, 189 A. 264. at knowledge plaintiff whether a determining

“In risk, must be objective standard of the appreciation that he did say heard to will not be applied him.” to have been obvious which must a risk comprehend Thus, it is Gibson, “when A.2d at 275. at 226 position in the intelligence of normal person clear that 92

plaintiff must have understood the the issue is danger, for 283-4, court.” Md. Schroyer, 1123; 323 at 592 A.2d at see Gibson, also at 226 A.2d at 275 (quoting Md. W. Prosser, (2nd ed.)); § Handbook Law 55 at 310 Torts of of Evans, 238-39, Moreover, 224 Md. at 167 A.2d 591. “there are anyone age certain risks which adult must be taken to ice, danger appreciate: slipping falling through on unguarded openings, lifting heavy objects ... and doubtless many § others.” at Prosser Keeton 488.

Concerning whether a has voluntarily ex posed him to or herself the risk of a known danger, “there must be some manifestation of to consent relieve the defen dant of obligation reasonable conduct.” Id. at 490.

“[T]he risk will not be taken to be if it appears assumed words, from plaintiffs] or from the facts of [the the situa tion, that not in he does fact consent to relieve the defen Nevertheless, dant of the obligation protect him. if the plaintiff proceeds enter into a situation which risk, him exposes notwithstanding any protests, his normally conduct will indicate that does not he stand on his objection, consented, and has reluctantly, accept however the risk and look for himself.” out (footnote omitted). Id. See also Pinehurst Co. v. Phelps, 68, 72, (1932) (“A risk, obvious, Md. may 160 A. while imminently not be dangerous prudent so that a man would it, yet if necessarily freely avoid it shall be it encountered will general be held to be so far that no recovery assumed consequent injury possible.”) Bohlen’s (quoting Studies on Torts, 446). follows, therefore, It order for *8 plaintiff danger, assume a risk of there must exist “the willingness plaintiff to take an informed chance,” 1123; Schroyer, 323 Md. at 592 A.2d at there can no the plaintiffs by be restriction on of choice freedom either existing by or emanating circumstances coercion from the defendant. This because is so

[e]ven where does not plaintiff protest, risk is not assumed where the conduct of the has him no defendant left him to a puts defendant Where alternative. reasonable duress, destroys which evils, of species is a of there choice of election. idea of freedom § at 490-91. Keeton Prosser and illuminated addressed and are points The above-stated b, Torts, comment (Second) § 496E and Restatement provide: which he harm unless

(1) a risk of does not assume A plaintiff the risk. voluntarily accepts if voluntary of a risk is acceptance plaintiffs The him no reason- has left conduct tortious the defendant’s conduct order course of able alternative another, (a) or to himself or avert harm of which the (b) privilege or protect right exercise him. right deprive no defendant has * * * * as regarded is to be acceptance the risk plaintiffs The compulsion under the though acting he is voluntary even conduct of the circumstances, tortious by not created him alternative. defendant, no reasonable which have left duty to the independent no is under the defendant Where by a himself confronted finds and the plaintiff, accept necessities to risks, driven his own or is choice charged against not to situation is be danger, to rent a house is forced who defendant. Thus cannot he condition because dangerous in obvious which is another, assumes afford dwelling, or cannot find another which he is compulsion under notwithstanding the risk acting.

III. correctly concluded Special Appeals The Court employee when the voluntary “act becomes employee’s act, act or not choice either to and reasonable given a clear 661, Md.App. willingly to act.” and then chooses *9 94

A.2d at 881. Characterizing [as], question “[t]he at what point carrying does out an employment responsibility become a act,” id,., voluntary appellate intermediate court pro- then that, ceeded to draw the conclusion “viewing the evidence in light most favorable to respondents], [the one might reasonably Martin, infer that with no clear and reasonable alternative, compelled was walkway use the in order to complete delivery for her employer.” 665, Id. at 666 A.2d at 883. The court reasoned:

To complete assignment successfully, [Martin] needed to make delivery particular to a office inside the building; and, in order to do she had to icy traverse an path leading to and from building’s sole A entrance. decision not to icy walk over the ground leading to building would have resulted Martin’s complete failure to her task. Hence, it is arguable that Martin deprived of a clear choice, and reasonable and therefore it question becomes a act, of fact whether she chose to or acted voluntarily. 661, Id. at 666 conclusion, A.2d at 881. To reach this Special Court of Appeals analyzed our decisions Schroyer Burke, concluding “job an employee’s requirements” necessarily determine and control the issue. Id.3 Stated dif- McNeal, 275, By construing 3. Schroyer so 323 Md. 592 A.2d 1119 Williams, 154, (1966), and Burke v. 223 A.2d 187 as it out, Special Appeals turns the Court stage set the for its ostensible dilemma,” adoption employee’s of "the modern which advances the employee view voluntarily that an does not unreasonably assume the danger during risk of a employment the course of compet because "the pragmatism” itiveness and workplace compel employ of the real world perform risky ees to either tasks employment or suffer various adverse consequences, ranging from termination to more subtle sanctions. Co., 649, 402, Eng'g Varilek v. Ill.App.3d Mitchell 200 146 Ill.Dec. 558 (1990). N.E.2d 365 Courts that have subscribed to this view have held injured "that an put worker does not have to in evidence that he would have been job fired if he had not done his in order to show that his voluntary decision ... was not assumption under the doctrine of Varilek, 413, risk.” 146 Ill.Dec. at 558 N.E.2d at 376. See also Suter v. Co., 150, Angelo 140, Foundry San & Mach. 81 N.J. 148 (1979); Co., 145, Mfg. Cremeans v. Willmar Henderson 57 Ohio St.3d 1203, (1991), Co., 566 N.E.2d citing 1206-07 Equip. Johnson v. Clark (1976); Co., 274 Or. 547 P.2d 140-41 Quick Brown v. Mix (1969); Bldrs., Wash.2d P.2d Kitchens v. Winter Co. employee, adopted proposition the court ferently, encounters who, job requirement, fulfilment of a in the he or because not act danger does of a known risk choice reasonable “a clear and given been will not have she *10 agree. Id. do not or not act.” We to act either and snow fell on an ice slipped and plaintiff Schroyer, In to her hotel sidewalk, belongings her carrying while covered case, Special the Court facts of that Analyzing the room. plaintiffs that we held determined here Appeals for her acting was not voluntary because she “actions were Mar her benefit.” rather, acting for own was but employer, 659, Consequently, A.2d at 880. tin, 666 Md.App. 106 at “Martin, unlike court concluded appellate intermediate voluntarily encounter did not Schroyer ] plaintiff [the convenience; for her own acting she was risk because on mission for her rather, injury, she was a the time of her at 660, at 880. Id. at 666 A.2d employer.” analysis respect with a similar The court conducted was, Burke, point to define the again, of which purpose be- employment responsibilities performance which the Burke, deliveryman plaintiff, In voluntary act. comes tops of kitchen sink making delivery injured while arriving at the Upon constructed house. partially defendant’s 701, 807, (1982); Inc., v. Lee- Ga.App. 809 Beacham 289 S.E.2d 161 1010, (10th Cir.1983); Norse, Service Rhoads v. 1014-1015 714 F.2d Co., (E.D.Ark.1971). F.Supp. 381 Mach. 329 employ- Special Appeal's of “the modern endorsement The Court of prompted it to conclude in this case: dilemma'' ee's require exactly what that Martin show be unreasonable to It would delivery. to make her happened to her had she refused would have job possibly have lost her expressed she could She the belief that made, because, might employer have lost delivery if the was not contradicted; her concern was was not the account. That evidence a matter of law. to be unreasonable as not shown Inc., Md.App. Partnership, Martin v. ADM validity (1995). necessary Although us to address the it is not however, dilemma,” we, infra, employee's as discussed “the modern purely subjective that the refusal to employee’s belief point out that an more, consequences, negative without result assume a risk would necessitating dispute, a determination a factual does not create trier of fact. house, the plaintiff owner informed the that he would have carry the sink tops up two foot boards over excavation. After a couple trips, plaintiff safe and fell slipped into excavation. We held that the voluntarily assumed being injured, the risk of stating: The rule is that when a in a personal injury action previously becomes aware of a created risk and to put up chooses with the situation—where as here .a workman confronted a slippery walkway with nevertheless willingness chose to use it—then his to take a chance is implied and he would from recovering be barred for a risk he chose to assume.

Burke, 157-58, 244 Md. at 223 A.2d at (citing (1964 Prosser, ed.) 67; § (Second), Torts, Torts Restatement 496). § responded We also to the plaintiffs argument because the him provided defendant with “only one means of *11 ingress egress and to and from the house and that necessity job economic his and keeping being discharged for tops,” failure to deliver the sink he did voluntarily assume Id. at the risk. that, 223 A.2d at 189. As we said: contention clearly [t]he without merit because no there is house, else, evidence that the owners of the anyone or ever demanded that use the appellant walkway against his any will. Nor is there evidence that plaintiffs] job [the would have been in jeopardy had he left the sink on tops construction site of taking instead them into the house. Id. It is this passage from which the Court of Special Appeals formulate a distinction between Burke and the was able case sub judice. Thus, Md.App. 666 A.2d 876. it inferred that order to complete job “[i]n assignment Burke successfully, in plaintiff only to deliver sink tops that, to the construction site” and concluded “[b]y taking upon it himself to move the sinks into the house through the carport, plaintiff chose to undertake a voluntary activity subjected that him to an assumption of risk defense.” Id. The basis for our decision in Schroyer, plaintiff, was that the fully aware of the risk involved in traversing an ice-covered take that risk. Her decision to voluntary walkway, made what, any, if connec scope, its employment, her employer, nor, as neither mentioned incident were had to the they tion considered, clear, peripherally. even makes opinion far as the hotel, arrived at the when she All the facts showed of, surrounding, in the area front “observed area, registered, had been guests where hotel lobby main Schroy and snow.” and, reasonably clear ice thus shoveled registering, 1120. After er, 592 A.2d at 323 Md. at to an area from the main entrance drove her vehicle snow, but unplowed with ice and hotel that was covered noticed that to her room. She convenience closer nevertheless, shoveled, she chose had not but sidewalk been “carefully.” Her first covered sidewalk the ice and snow cross successful, but, trip, slipped she on her second trip was held that fell. We condition of the fully dangerous aware of the

[plaintiff] was ice and the area was snow She knew premises. Never- slippery. the ice and snow were covered and that and, ac- theless, notwithstanding, she the area parked carefully, she testimony, proceeded to her that she cording over the ice and snow covered took a chance and walked it she did not think was parking lot and sidewalk because slippery. “that” record, clear, took an informed [plaintiff]

It is on this an ice and Fully danger posed by chance. aware of the sidewalk, lot she snow covered it, carefully, albeit for her own park chose to and traverse unloading belongings. purposes, i.e. her convenience *12 % }£ Hí knowledge parking full that the lot and sidewalk were With that ice and snow were ice and snow covered and aware on the [plaintiff] voluntarily park chose to slippery, sidewalk, indicating it thus lot and walk across relieving to the risk and willingness accept [defendants] hold, a safety.... for her We as matter responsibility law, injuries. of her [plaintiff] that assumed the risk own 288-89, Hence, Id. at 592 A.2d at 1125-26. our decision plaintiff, charged knowledge existing clear: the with the icy walkway, voluntarily condition of the chose to encounter She, therefore, intentionally, the risk. knowingly volun- tarily assumed the risk of the danger injuries. caused her evidence, case, There no in that simply suggest was that the and, therefore, plaintiffs employment adversely was affected we did address that issue. Special Appeals’s

The Court of of Burke is interpretation similarly This did not plaintiffs flawed. Court hold that the job requirements point “carrying established the at which out employment responsibility voluntary a act.” 106 become[s] Rather, at 666 A.2d at 881. all Md.App. we held was case, on facts of the there was no evidence to show that will, acting was not on his own volition or free or that employment his would have been in had he jeopardy refused thus, walkway to make the delivery, negating use Gibson, finding assumption of the risk. See 245 Md. at (The 226 A.2d at 276 in Burke arguments “rejected were ... showing because there was no the act of the plaintiff will.”). produced by which the harm was done him against his sure, To be the Court did draw distinction between at the possible points delivery, construction site and however, constructed partially building; nothing there is opinion suggest only plaintiffs subjective belief impact employment that an adverse on would occur would since, have been taken as “evidence.” That seems unlikely as seen, already applied we have the standard to be is an objective one. at Schroyer, Md. 1123. stronger Burke also seems to case than be the instant one holding injury. that the did not assume the risk of There, here, plaintiff7delivery-person specifical- unlike ly very asked the defendant to do the act that resulted in sufficient, injuries. his That fact was not in the face of the voluntarily, lack of evidence that he did not act that he did so against his free necessity, will because economic see Velte Nichols, 127 A.2d 544 (purchaser ladder, the risk he although assumed when climbed a he was *13 merchant), to do told so allow the avoid Here, well, defense of as assumption risk. there is evidence traversing no that Martin’s act of the ice and snow walkway covered lot not volitional. Nor does support appellants the evidence a conclusion that the placed having Martin no position choice but traverse the walkway: ice and snow covered You COUNSEL]: could have climbed in

[DEFENSE truck, in, I and radioed said think it Darryl, is too dangerous they Tell these are people going here. to have to come out get blueprints they are not getting them ? today. Correct

MARTIN: I have. could Additionally, subjective other than Martin’s belief that she terminated, have could been and thus that she acted from economic necessity, there is no from which a evidence reason- jury able could have so concluded. Neither Martin’s employer nor defendant ever demanded that traverse she the ice walkway and snow covered against her will. Okay. you

[PLAINTIFF’S got- COUNSEL]: Could have ten back into car your away and driven and not made your delivery day?

MARTIN: No.

lamQ sorry? No,

A I could not. And

Q why is that? A I Because could have caused losing them the contract

with the company they already had. I could have lost my job. Did

Q anyone you tell you your ever lose job would if you delivery? didn’t make a

^ ^ No, A not that I recall can or not that I remember.

$ $ ^[*] $ Ma’am, Okay. you [DEFENSE COUNSEL]: indicated concern, you nobody the truth told had some but ever *14 you you you be fired if hadn’t the brought would [that] there, isn’t that correct? blueprints No, that I know of. MARTIN: Well, Q asking you. Nobody that I am ever told is what you you you fired if going were to be didn’t—[take] in, blueprints those correct?

A Correct.

Q nobody you blueprints get had to there And told these to this somebody going

or is lose a contract or whether go was to going bankrupt? business A I am not sure.

Q jury But can’t this under oath that Okay. you tell day

anybody you ever told that that no, A I Well never—no.

Despite testimony, this the neverthe respondents, less, Special Appeals properly the Court of contend that of as dispute determined that a fact exists to whether Martin risk the snow walking assumed the across ice and covered being as a result of parking walkway lot and entrance coerced securing a for by necessity the economic service contract employment. and for her continued Determin employer ing acted when she encountered whether Martin or walkway responding the ice covered economic Ordinarily, of her state of mind. necessity requires proof ie., evidence, testimony by direct the proof supplied by is issue, whose of mind is at or circumstantial person state ie., evidence, concerning facts circumstances testimony may from the be While the which state of mind inferred. sufficient, person ordinarily the with testimony affected more, thus generate jury out a verdict and a support as, person’s example, for when the issue is the question, see, State, 581, 572, e.g., Binnie intent, 321 Md. 583 A.2d claiming or what a defendant self defense believed, see, Martin, State v. e.g., felt or (1993), where the mind proof state fact, depends upon itself of another the witness’s proof addition, must, will not be testimony alone suffice. There Otherwise, speculation some evidence that critical fact. or a or for possibility theoretical academic will substitute evi- demonstrates, dence. is not preceding passage As there job shred of evidence from Martin’s concern for her if which were not can delivery made be inferred. respondents The also that Gibson argue dictates of provide “the compulsion experienced by coercion plaintiff may emanate from non-defendant source for act Thus, involuntary.” although to be petitioners considered complains, are not source of coercion of which Martin assert, petitioners may they nevertheless be liable injuries traversing while lot Martin sustained walkway. *15 Gibson, defendant,

In the of a delivery the driver fuel oil truck, to was unable connect the fuel hose to the inlet fuel plaintiffs the house to the of in due accumulation the snow plaintiffs driveway, prevented posi- which defendant the from in tioning his truck a manner that facilitate connec- would the result, tion. As a the defendant “indicated” to plaintiff the for necessary it would be the to out plaintiff come and pull the approximately hose one hundred feet the from oil hose, truck to the house. pulling While the fuel the plaintiff, fiftyfive fuel, old year delivering man with no experience suffered a heart attack. We held that the plaintiff voluntarily assumed of injuries, the risk his observing: (within plaintiff

The takes a meaning risk the rule) the present where the defendant to right has face him with the dilemma “take it or leave it”—in other words, where defendant is no duty [the] under to make the conditions their association than any they safer to appear be. In such a case it does not plaintiff matter is by coerced to assume the risk force emanating some not defendant, from poverty, such of living as dearth quarters, a sense moral responsibility. Gibson, 422-23, Harper and (quoting 245 at 226 A.2d at 276 (1956)). observation, Torts, James, § at 1174 From this 21.3 “acknowledged the the contend this Court respondents and plaintiff between the defendant relationship contractual and the defendant “did not found because [in Gibson]” “ no and was ‘under obligation” have a tort-like their safer than duty make the conditions of association to were,” not be for responsible the “could held defendant the/ caused the weather conditions.” the coercive element Therefore, respondents argue: the does have a that in cases where defendant

[I]t follows relationship make conditions of the between duty to they be, to appear safer than defendant from may coercion emanate apply rule does sources other than the defendant.

[*] ^[*] ^[*] ^[*] the Petitioners in this It follows then that since [further] place, first Respondents] duty case owed arise, necessarily must not from source of coercion In es- for involuntariness be established. Defendants] sence, duty their owed since Petitioners breached tort-based Martin, suggests that the party(ies) responsi- to Ms. Gibson also re- may their duties be breaching ble for tort-based experienced by plain- element sponsible the coercive it from. tiff no matter where emanates the risk an supra, assumption of As we discussed defense, consent upon plaintiffs “rests affirmative which obligation of conduct toward the defendant relieve him, particular harm from a risk.” to take his chances of *16 Prosser, 421, 226 at (quoting Md. A.2d 275 Gibson 245 at ed.1955)). (2d contributory Torts, negli Unlike § 55 at 303 of independently of risk defense exists gence, assumption the the defendant or person, the of another whether conduct Therefore, duty the existence of defendant’s third party. speaks negligence, to the defendant’s not issue because required to of risk. See assumption which is not establish (“[T]he 282, at critical at 592 A.2d 1123 Schroyer, 323 Md. negligence distinction contributory assumption between and of latter, that, in the of by plaintiffs risk is virtue the voluntary actions, any duty the to plaintiff defendant owed the act for the reasonably plaintiffs safety by is superseded chance.”). plaintiffs willingness to take a Gibson, In plaintiffs claim was barred the defense of risk, assumption of no “duty” because the defendant owed to plaintiff, plaintiff intentionally but because “the Gibson, voluntarily exposed himself to a known danger.” 422, Md. at 226 A.2d at 276. must to plaintiff]

[The be taken have been aware danger slipping on snow the burden snow it; physical would in add to effort taken he be charged must knowledge with of a large heaviness hose of diameter in which there fuel oil and of the possible physical age effects on a man of his of the effort it or drag it lif[t] If through sooner, the snow. he not appreciate did this he must have when he took hold hose. Yet he voluntari- ly undertook to take his of harm chance from the effort of pulling it the house. voluntary undertaking This in the environment and present circumstances freed the defen- dants as liability a matter law from might harm which flow undertaking. from the 422, Thus,

Id. at Gibson, 226 A.2d at 275-76. plaintiffs similar to case, Burke and in the instant exercised his own volition in encountering danger, a known voluntarily and thus assuming risks it As we entails. have stated in earlier cases involving assumption of risk de- fense, the facts in dispute “where are not and the [herjself intentionally exposed known danger, we granting summary [will] sustain[ ] the of a judg- Burke, ment or 158, the direction of a verdict.” 244 Md. at 189; Gibson, 223 A.2d see 422, also 245 Md. at 226 A.2d at 276; 288-89, 1126; Schroyer, 323 Md. at 592 A.2d at Evans v. Univ., 234, 239, Johns Hopkins 224 Md. 167 A.2d (1961); Co., Finkelstein v. Vulcan Rail & Const. (1961). *17 APPEALS THE OF SPECIAL

JUDGMENT OF COURT REVERSED; TO THAT COURT CASE REMANDED TO AFFIRM THE JUDGMENT WITH INSTRUCTIONS COUN- OF THE CIRCUIT COURT FOR MONTGOMERY IN AND THE COURT OF TY. IN THIS COURT COSTS BE PAID BY THE TO RESPON- SPECIAL APPEALS DENTS.

ELDRIDGE, J., dissents.

ELDRIDGE, Judge, dissenting. Judge Alpert’s opinion forth in

For the reasons set ADM, v. Martin Special Appeals, Md.App. Court of (1995), judgment 666 A.2d 876 I would affirm Court Special Appeals. A.2d

Kenneth Bernard ROBINSON Maryland.

STATE of Term, Sept. 1996. No. Maryland. Appeals of

Court Nov. 1997.