Allen v. Marriott Worldwide Corp.

⁴⁶² CHARLES E. MOYLAN, JR., J., Retired, Specially Assigned. On January 5, 2007, the appellant, David Allen, filed suit in the Circuit Court for Montgomery County against the appellees, Marriott Worldwide Corporation doing business as The Residence Inn (“Marriott”), and the Brickman Group Ltd. (“Brickman Group”). The suit charged the appellees with negligence and premises liability. It is a classic “slip and fall” scenario, in this case involving a slip and fall on ice.

The significance of the case is that the slip and fall occurred not on “white ice” but on “black ice”. The defense was that of assumption of risk. Factual Background Marriott owns and operates a Residence Inn Hotel in Ellicott City, Maryland. The Brickman Group is the contractor hired by Marriott to be responsible for snow and ice removal and for surface treatment at the Ellicott City Residence Inn.

From February 3 through February 5, 2004, the appellant was a guest at the Residence Inn. On the morning of February 5, the appellant and his wife, Elizabeth Allen, checked out of the Residence Inn at approximately 8:00 A.M. As the appellant checked out, Mrs. Allen went to the hotel’s parking lot to get the car. She drove the car close to the front entrance way and awaited her husband. As the appellant left the main entrance of the hotel, he first walked along the sidewalk in the general direction of where his wife was waiting with the car.

As the appellant then stepped off the curb, pulling a “wheelie” suitcase, he slipped and fell on what turned out to be a patch of unseen ice. Procedural Background On October 12, 2007, each of the appellees filed a Motion for Summary Judgment. Each argued that, even assuming the truth of the appellant’s allegations, the appellees were entitled to judgment as a matter of law under the affirmative defense of assumption of risk. That is the only issue in this case. ⁴⁶³ The appellant filed his opposition to both motions and filed an affidavit in support of his opposition memorandum.

A hearing on summary judgment was conducted by Judge Ronald B. Rubin on December 3, 2007. On December 7, Judge Rubin entered orders granting summary judgment in favor of the appellees. The appellant has taken this timely appeal. The Assumption of Risk On Snow and Ice The Maryland law on the defense of assumption of risk in cases involving slipping and falling on ice or snow is totally contained within the three decisions of Schroyer v. McNeal, 323 Md. 275 , 592 A.2d 1119 (1991); ADM Partnership v. Martin, 348 Md. 84 , 702 A.2d 730 (1997); and Morgan State University v. Walker, 397 Md. 509 , 919 A.2d 21 (2007).

In Schroyer, 323 Md. at 282 , 592 A.2d 1119 , Judge (later Chief Judge) Bell laid out the point of departure for our analysis with a basic definition of the defense of assumption of risk (quoting from Gibson v. Beaver, 245 Md. 418, 421 , 226 A.2d 273 (1967)): When the plaintiff enters voluntarily into a relation or situation involving obvious danger, he may be taken to assume the risk, and to relieve the defendant of responsibility. Such implied assumption of risk requires knowledge and appreciation of the risk, and a voluntary choice to encounter it. (Emphasis supplied). Judge Bell also made it clear that the test for whether a plaintiff has assumed the risk of injury is an objective one that ordinarily should be decided by a jury but, when the risk is fully known and understood, may be decided by the court as a matter of law.

The test of whether the plaintiff knows of, and appreciates, the risk involved in a particular situation is an objective one and ordinarily is a question to be resolved by the jury. Thus, “the doctrine of assumption of risk will not be applied unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of dan ⁴⁶⁴ ger was fully known to and understood by the plaintiff.” On the other hand, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court. 328 Md. at 283-84, 592 A.2d 1119 (emphasis supplied). With particular reference to snow and ice, Schroyer cited with approval W. Prosser, Handbook of the Law of Torts (2d ed.), § 55 at 310, as Schroyer stated: The danger of slipping on ice was identified in Prosser as one of the “risks which any one of adult age must be taken to appreciate.” Id. at 284 , 592 A.2d 1119 . In the Schroyer case itself, the plaintiff walked out onto a parking lot covered with ice and snow but attempted to do so with utmost care.

The trial court ruled that the plaintiff was entitled to recover from the motel owners. This Court affirmed that decision. Schroyer v. McNeal, 84 Md.App. 649 , 581 A.2d 472 (1990). The Court of Appeals, however, reversed the decision of this Court, as it held that recovery was barred, as a matter of law, by the defense of assumption of risk.

It is clear, on this record, that McNeal took an informed chance. Fully aware of the danger posed by an ice and snow covered parking lot and sidewalk, she voluntarily chose to park and traverse it, albeit carefully, for her own purposes____[I]t cannot be gainsaid that she intentionally exposed herself to a known risk. With full knowledge that the parking lot and sidewalk were ice and snow covered and aware that the ice and snow were slippery, McNeal voluntarily chose to park on the parking lot and to walk across it and the sidewalk, thus indicating her willingness to accept the risk and relieving the Schroyers of responsibility for her safety.... [WJhile the issue of her contributory negligence may well have been for the jury, the opposite is true with respect to her assumption of the risk. Id. at 288, 592 A.2d 1119 (emphasis supplied).

In ADM v. Martin, the plaintiff was an employee of a blueprint reproduction company and was making a delivery to the business in Rockville owned by the defendants. The ⁴⁶⁵ plaintiff slipped and fell on an ice and snow-covered walkway as she returned to her vehicle. The trial judge granted judgment in favor of the defendants on the ground that the plaintiff, as a matter of law, had assumed a known risk. The Court of Special Appeals reversed that decision, holding that the assumption of risk was a jury question.

Martin v. ADM Partnership, 106 Md.App. 652 , 666 A.2d 876 (1995). The Court of Appeals reversed the decision of this Court, holding that the assumption of the risk had been established as a matter of law. For the Court of Appeals, Chief Judge Bell described the situation confronting the plaintiff as she approached the building. Although it had snowed some nineteen hours earlier and the precipitation had ceased, ice and snow surrounded the building, particularly the parking lot directly in front of the building and the entrance walkway.

Martin testified at trial that she observed that there was ice and unplowed snow surrounding the building when she arrived at the building, and that she wondered why the walkways had not been cleared. Despite the condition of the parking lot and the entrance walkway, Martin testified that, because she observed that there were other vehicles in the parking lot, that people were working inside the building, and that there were footprints in the snow and ice, suggesting that there was a safe means of ingress and egress to and from the building, she felt that she could safely enter the building. Martin also testified that, although her employer never told her that she could lose her job if she did not make the subject delivery, or any other deliveries she was assigned to make, she believed that she had no choice but to deliver the blueprints. As she saw it, if the delivery was not made, Ideal Reprographics could have lost that delivery contract, with the consequence that her employment could then have been terminated. 348 Md. at 88-89 , 702 A.2d 730 (emphasis supplied).

On her way into the building, the plaintiff initially slipped on the ice but avoided falling by grabbing onto her vehicle. On ⁴⁶⁶ returning from the building, however, she again slipped, fell, and injured her lower back. In holding that assumption of risk had been established, as a matter of law, Judge Bell reiterated that the test is an objective one. “In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied and a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him.” Thus, “when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Moreover, “there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects ... and doubtless many others.” Id. at 91-92 , 702 A.2d 730 (emphasis supplied). In Morgan State v. Walker, the plaintiff went to visit her daughter on the campus of Morgan State University several days after a heavy snowstorm.

After “driving across a snow and ice-covered parking lot” and then parking, the plaintiff, on her return trip from her daughter’s dormitory, “walked across the ice, fell, and fractured her leg.” 397 Md. at 510 , 919 A.2d 21 . The trial judge granted summary judgment in favor of the defendant Morgan State. This Court reversed, holding that the voluntariness of the plaintiff’s actions was a question for the jury. The Court of Appeals reversed the decision of this Court, holding that the assumption of risk defense had been established as a matter of law.

Judge Greene described the plaintiffs actions just prior to her accident. Respondent parked and exited her car. She noticed snow and ice on the ground between her car and the entrance to the dormitory. She therefore held on to the cars next to her as she walked to reach her daughter’s building.

Respondent’s daughter testified that, like the parking lot, the driveway and steps in front of her dormitory had not been cleared. Respondent testified that she held onto the railing when walking on the steps and walked very slowly. She also noted that she had on Timberland boots and stated “I ⁴⁶⁷ mean I don’t have any problems with walking or anything like that. Actually I’m a dare devil to be honest with you.” She reached her daughter’s dormitory without incident.

Respondent visited with her daughter for approximately one hour. On her way back to her car, she walked slowly and tapped each car, while looking down at the ground “to make sure that [she] didn’t slip and fall.” She saw snow and ice on the ground as she was walking and testified that she was “trying to be safe.” When Respondent reached her vehicle, she lost her footing, fell to the ground and fractured her leg Id. at 512 , 919 A.2d 21 (emphasis supplied). The holding of the Court of Appeals was unmistakably clear: [W]hen the uncontroverted evidence demonstrated that Respondent knowingly and voluntarily walked across a snow and ice covered parking lot and injured herself, she assumed the risk of her injuries as a matter of law. The Circuit Court was therefore correct to grant MSU’s motion for summary judgment and not send the question to the jury.

Id. at 514 , 919 A.2d 21 (emphasis supplied). Judge Greene’s opinion emphasized the extent of the plaintiffs awareness of the clear danger of slipping and falling. Respondent’s own testimony made clear that she was aware of the snow and ice in the parking lot. She testified that as soon as she drove into the parking lot, she noticed that she was driving “on crunchy ice and snow.” She stated further that she thought, “doggone, they didn’t clean this parking lot.” Respondent’s behavior demonstrates that she was also aware of the risk, and appreciated the risk, of danger of walking on snow and ice.

She explained that she walked very slowly, held onto the cars as she walked, and held onto the railing as she walked slowly up the steps. In addition, Respondent explained that she looked down at the ground “to make sure that [she] didn’t slip and fall.” Moreover, as we stated in both ADM P’ship and Schroyer, ⁴⁶⁸ “[t]he danger of slipping on ice ... [is] one of the ‘risks which any one of adult age must be taken to appreciate.’ ” Id. at 519, 919 A.2d 21 (emphasis supplied). There was, moreover, nothing involuntary about the plaintiffs assumption of the risk in Morgan State v. Walker. Nothing in the record suggests that Respondent was forced against her will to confront the risk of danger of walking on the snow and ice, such that her behavior could be classified as involuntarily.

After hearing the crunch of ice and snow under her tires and acknowledging that MSU had not removed the ice and snow from the parking lot, she proceeded to get out of her car and visit with her daughter. Respondent’s motivation stemmed from the fact that she believed that her daughter needed money. In accordance with our prior holdings, Respondent’s actions would be considered involuntary only if she lacked the free will to avoid the situation. Therefore, the fact that Respondent wanted to bring her daughter money for gas does not render her actions involuntary.

Id. at 519-20 , 919 A.2d 21 (emphasis supplied). The opinion quickly disposed of the plaintiffs argument that she had no alternative path to take. The alternative path was to take no path at all. Moreover, Respondent had alternatives in this case — as soon as she heard the ice underneath her tires, she could have turned her car around and gone home or arranged an alternative plan by which to get her daughter money, instead of voluntarily proceeding in the face of danger by leaving her car and traversing across ice and snow.

Id. at 520 , 919 A.2d 21 (emphasis supplied). In terms of alternatives, the appellant in this case could have waited at the front entrance of the Residence Inn for his wife to drive up and pick him up there at that point of greater safety. He voluntarily elected to venture forth and meet her further out on the parking lot. The motivation was to save a little time. ⁴⁶⁹ When the issue is that of the assumption of risk, moreover, any question about the negligence of the defendant becomes utterly immaterial.

We can assume, for the sake of argument, that Respondent is correct and that MSU was negligent in failing to clear the parking lot and walkways of snow and ice. This assumption does not change our analysis or our conclusion. As this Court has previously explained “the assumption of the risk defense exists independently of the conduct of another person, whether the defendant or a third party. Therefore, the existence of a defendant’s duty is not an issue because that speaks to the defendant’s negligence, which is not required to establish assumption of risk.” Id. at 521 , 919 A.2d 21 (emphasis supplied).

Black Ice Versus White Ice In the path of that Schroyer-ADM Partnership-Morgan State juggernaut, the appellant here could have uttered no peep of protest had the ice on the Residence Inn parking lot been visible. His wriggle room, and the significance of this case, lies in the distinction between “white ice” and “black ice.” The appellant reminds us that the snow and ice in all three ostensibly controlling cases was visible, not only to the naked eye of the plaintiff but to the most casual viewer. It was, in the professional jargon of the tort practitioner, “white ice.” The ice in this case, by contrast, was “black ice.” Will that make a difference? Perhaps, but not necessarily.

The term “black ice” describes the visual impression created by a relatively thin layer of transparent ice lying over a black surface, such as tar macadam or asphalt. “White ice” describes the different visual image created by a similar layer of transparent ice lying over a white surface, such as